According to a UN spokesperson on Sunday, December 4 the draft calls for a Nuremberg-style tribunal to hold the Russian leadership accountable for crimes committed in the invasion of Ukraine.
Beth Van Schaack, the US ambassador for global criminal justice, said this week: “It’s something that President Zelenskiy cares deeply about.
“This is something Ukraine wants, and I think that’s going to carry a lot of weight. The question is, will they have the votes at the general assembly?”
She added that opposition to the draft is weakening following intensive lobbying by Ukrainian President Volodymr Zelensky saying: “So far, all of the [general assembly] resolutions on Ukraine have prevailed.
“The numbers have been quite strong.”
Van Schaack was speaking at a Lawyers for Justice event in London where she said that there was merit to the special tribunal but that the United States had yet to form an opinion.
Holding trials in abstentia she said was definitely an option given that it was not possible to extradite those involved.
The remarks suggest that key figures within the Biden administration have changed their position and would now be willing to share intelligence to help bring those concerned to justice.
“We’re looking at all the angles, and certainly supportive of taking some interim steps, particularly when it comes to preserving evidence.”
She added two options are under consideration, the first a bilateral treaty between Ukraine and the UN that would see a tribunal set up. The second would see a domestic court set up by Ukraine aided by the EU or the Council of Europe. That she said could also be endorsed by a vote at the UN general assembly.
Her belief is that the top echelon would need to be tried for aggression saying: “It would be a limited number of defendants, probably the top political leadership and maybe some top military actors as well.”
The European Commission President, Ursula von der Leyen, has given her backing to the tribunal idea for the first time with strong French, Baltic and Dutch support already evident. The US and the UK have yet to commit to any option.
Ukraine is keen for the UN to investigate the war crimes committed as they argue the International Criminal Court (ICC) is hampered in that it can only charge individual war crimes. That means it cannot prosecute the Kremlin leadership over the broader crime of aggression. Russia is not a signatory to the relevant statute.
There is divided opinion on the issue with some saying that any attempt to charge Russia’s leadership with war crimes will destroy any hopes of a peace deal. Concern has also been expressed about the ability of such courts to charge those with diplomatic immunity.
Ukraine would like to see a tribunal begin its work by no later than September 2023, however with many countries yet to commit to the idea that could prove unrealistic. Ukraine has been keeping extensive records and claims that by then they will have compiled least 26,000 war crimes that led to the deaths of 7,500 civilians, including 400 children.
As it currently stands there is no way of holding the Russian leadership accountable for the war crimes committed in Ukraine, a tribunal may be the only real option although it is bound to be vetoed by one or more parties.
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