The leadership of the Vladimir Putin regime must pay for the crimes committed in the war in Ukraine. With this goal on the horizon, the European Commission promotes the creation of a special court, backed by the United Nations, to judge the atrocities committed by the Kremlin forces in their offensive. “Russia’s invasion of Ukraine has brought death, devastation and unspeakable suffering,” declared the president of the Community Executive, Ursula von der Leyen, in a recorded message. “Russia must pay for her horrible crimes, including her crime of aggression against a sovereign state,” she added. In the path of seeking responsibilities, Brussels is also analyzing formulas to use the frozen assets of those sanctioned by the EU, including the circle of the Russian leader and a good number of oligarchs, in the reconstruction of Ukraine. A difficult and complex legal fit in both cases.
Voices calling for a push to prosecute Russian political and military leaders for the invasion are growing while pressure is mounting from kyiv for the creation of a specialized body on the matter. On Tuesday, the G-7 justice ministers (the United States, Japan, Canada, Germany, France, the United Kingdom and Italy) agreed to establish a network to coordinate war crimes investigations in Ukraine. kyiv authorities have denounced a growing number of war crimes since President Putin launched the invasion nine months ago. The European Union and some leaders have already accused the Kremlin of violating the laws of war.
Russia must pay for its horrific crimes.
We will work with the ICC and help set up a specialized court to try Russia’s crimes.
With our partners, we will make sure that Russia pays for the devastation it caused, with the frozen funds of oligarchs and assets of its central bank pic.twitter.com/RL4Z0dfVE9
— Ursula von der Leyen (@vonderleyen) November 30, 2022
The International Criminal Court in The Hague already opened an investigation in April into the massacre of dozens of civilians in Bucha, on the outskirts of the capital. International organizations on the ground in Ukraine have also reported other cases, such as the bombing of the Mariupol Regional Drama Theater, the Azov Sea port city besieged by Russian troops. However, this court, which can investigate and prosecute war crimes, crimes against humanity and genocide, does not have jurisdiction to prosecute crimes of aggression if the aggressor state, in this case Russia, is not a member state.
Formula against immunity
Now, the European Commission promotes a specialized court as the best formula to resolve the immunity of the high Russian officials involved in the invasion: from a high position to the head of state himself. This immunity would not apply in proceedings carried out by international tribunals. Russia has directed indiscriminate bombardments against civilian infrastructure. And in recent weeks it has escalated attacks on Ukraine’s electricity and gas grid and water supply routes, plunging millions of people into cold and darkness. Despite all this, the Kremlin denies that it is targeting civilians and that it has committed war crimes. Russia, which remains a member of the United Nations, could, however, try to veto the creation of a UN-backed specialized court.
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Brussels is analyzing different options to promote the most appropriate path and has not yet decided whether it will support and promote the creation of an international court or a hybrid criminal court, which operates under Ukrainian law with the support of the international community, according to community sources. All the options have a lot of legal complexity. The fact that Russia and Ukraine are not signatories to the treaties of the International Criminal Court in The Hague makes all movements very difficult. It adds even more obstacles that Moscow is one of the five States with the right to veto in the United Nations Security Council, since it closes this path to create a court ad hoc, according to the legal analyzes delivered to the ambassadors of the Twenty-seven this Wednesday. But this blockade gives way to two thirds of the UN General Assembly who bet on this path.
Both paths seem complex, which is why Brussels is committed to this “hybrid” or “specialized court”, as Von der Leyen pointed out in his video, which combines laws, procedures and components of national and international courts. There are precedents in this regard in Sierra Leone and Cambodia, both at the initiative of the UN, and in Kosovo, with the impetus of the EU.
Along with the criminal punishment for the crimes of the invasion, the Commission has also analyzed the possibility that part of the reconstruction of Ukraine is financed with the funds frozen to Russian oligarchs (some 20,000 million euros) and the foreign assets blocked by the Bank of Russia (just over 290,000 million euros). The amount is close to that calculated by the World Bank that is needed to rebuild the invaded country (350,000 million euros). Although this figure will increase as the war drags on.
As in the case of criminal prosecution, this path is not easy legally either. After analyzing several ways, the option chosen by the Commission is to temporarily use the frozen assets, since they cannot be definitively confiscated, the sanctions are temporary and, therefore, definitive expropriation is not possible. This is just one of the legal hurdles. There are others, such as the fact that these funds are not linked to money laundering, terrorism or drug trafficking.
Despite the fact that the use of the funds to rebuild Ukraine would be temporary, Brussels aspires to make it permanent through peace negotiations. His proposal involves Ukraine being included as compensation in the talks to end the war.
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