Analysis. To circumvent the obstacle of Russia blocking an ICC petition, the commission president suggested ‘an ad hoc tribunal would allow for the prosecution of senior Russian officials who would otherwise enjoy immunity’ for the crime of aggression.

Von der Leyen is proposing a special tribunal to punish Putin

How to punish the Russian aggressor and help Ukraine restart when the war is over? Kyiv’s allies will discuss this in Paris at the reconstruction conference convened on December 13. Meanwhile, on Wednesday, the European Commission proposed the creation of a “specialized tribunal,” with UN support, to investigate the crime of aggression by Russia, with the aim of prosecuting the main perpetrators, President Putin, the prime minister and the foreign minister.

It was in response to a demand made by Ukraine, which expressed its satisfaction with the EU proposal (after objecting to the estimated figures on Ukrainian civilian and military deaths mentioned by the chairwoman of the Commission, which Ukraine called “far from reality” and which were later removed from the published text).

Ursula von der Leyen made it clear that the EU, even though it was proposing a special tribunal, would continue to support the International Criminal Court, before which Ukraine filed a complaint back in 2014 and which opened an investigation in February. According to von der Leyen, Russia “must pay for its horrible crimes,” including financially: “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.”

The EU has frozen €300 billion owned by Russia’s Central Bank and €19 billion belonging to oligarchs. Ukraine’s total losses because of the war are around €750 billion, as the country accumulates a deficit of €5 billion per month.

Kyiv has so far received about €90 billion from 41 allied countries, including military, financial and humanitarian aid, according to data from the Kiel Institute for the World Economy released on November 11: €52 billion from the U.S. (including €27.6 for military aid), €29 billion from the EU (€16 from Brussels, €13 from member countries), with Latvia and Estonia leading in the proportion of aid to their GDP (more than 0.8 percent), followed by Poland (0.49 percent) and Norway (0.38 percent), while Washington, the top donor overall, has given 0.2 percent of its GDP (and France 0.04 percent).

The proposal of a special tribunal raises many problems, legal and political, which remain unresolved for the time being, also concerning the petition before the International Criminal Court, which neither Russia nor Ukraine has ratified and which would have jurisdiction only for war crimes and crimes against humanity perpetrated in Ukraine, but not for the crime of “aggression.”

Moreover, the only legal means for the Hague Court to intervene is a vote in the UN Security Council, but Russia, which is a permanent member, has veto power. One way around this veto would be to put the issue before the UN General Assembly (one country, one vote), where the West hopes to have a majority (but at the last vote, on November 14, it won only a narrow victory for the creation of a “registry” for Ukrainian grievances with the aim of seeking reparations from Russia).

To circumvent the obstacle of Russian non-ratification of the ICC, “an ad hoc tribunal would allow for the prosecution of senior Russian officials who would otherwise enjoy immunity,” von der Leyen pointed out.

The Netherlands, which hosts the ICC at The Hague, is willing to accommodate the special tribunal, which could take the form of a “hybrid court.” Von der Leyen promised that the right legal means would be found.

Among the EU countries, around 12 are supporting this initiative, while 14 have already opened investigations into crimes committed in Ukraine, either on a personal basis (harm to EU citizens) or on the principle of universal jurisdiction, and the G7 on Tuesday announced that ongoing investigations would be coordinated. On the other hand, France has pushed back against the idea of a special tribunal, and neither the U.S. nor the U.K. have been very enthusiastic so far.

On the financial side, Von der Leyen says that “we have the means to make Russia pay.” But there are obstacles on this front as well: in July, in Lugano, at a summit on Ukraine’s reconstruction, Switzerland (which has more than €200 billion of the oligarchs’ money in its banks) expressed its opposition to seizing it, in the name of property rights. The EU is proposing to establish a crime of “sanctions evasion” to legalize seizures, and Canada and the U.K. are also considering it.

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