EU and International Criminal Court divided over Ukraine war tribunal

Sharp differences have begun to emerge between the European Union – including the Dutch government – and the International Criminal Court (ICC) over whether or not a new UN-backed tribunal should be set up to try crimes of Russian aggression in Ukraine.

Whereas ICC prosecutor Karim Khan insisted last week that the ICC was “the right place” to pursue Russia, he has faced surprisingly emphatic opposition from Dutch foreign minister Wopke Hoekstra, who said there was “a growing consensus” that a special court was, in fact, required.

That consensus, Hoekstra said, was coalescing around the view that the institution that took on the onerous job of challenging Russian impunity in Ukraine would have to be capable of prosecuting “the act of Russian aggression, the crime of starting a war”.

“This”, he maintained after a meeting in recent days with Nato secretary general Jens Stoltenberg and Dutch defence minister Kajsa Ollongren, “cannot be done by the ICC”.

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While Hoekstra’s vehemence may have been surprising, his position was very much in line with that of European Commission president Ursula van der Leyen, who last month proposed either a new international tribunal or a “hybrid” court based on Ukraine’s legal system but located abroad.

“While continuing to support the International Criminal Court”, she said, the EU would work with the international community to get the broadest support possible for the new Ukraine tribunal, whichever structure was chosen.

Rightly or wrongly, there was a distinct sense of a die already cast.

The ICC came into being in The Hague 20 years ago this year to prosecute individuals identified as criminally liable for war crimes and crimes against humanity, including genocide.

In geopolitical terms, an act of aggression is defined by the United Nations as an “invasion or attack by the armed forces of a state on the territory of another state, or any military occupation”.

The problem for the ICC is that its jurisdiction to pursue aggression as a crime under international law extends only to member states or states that have agreed to its jurisdiction. Ukraine is among the latter. Russia, however, does not recognise the court.

Khan was appointed ICC prosecutor in June of last year. The speed with which he moved to investigate allegations of war crimes and crimes against humanity when they first emerged following Russia’s invasion of Ukraine the previous February drew widespread international support.

However, speaking last week on the fringes of the annual assembly of states that support the court, he seemed irked at the prospect of being sidelined by a new institution where those charged with crimes in Ukraine might ultimately face justice.

Referring to the EU position, he said: “We should avoid fragmentation” in favour of “consolidation” of international courts.

As regards the capacity to prosecute aggression, he noted that the Rome Statute, the court’s founding document, included “provisions for dealing with aggression”, adding: “I think it’s not beyond the wit of states to look at ways of dealing with gaps that are said to exist.”

Beyond the issue of aggression, however, lies an equally thorny legal issue for the ICC: the question of trial in absentia, which is specifically prohibited under article 63 (1) of the Rome Statute.

This means it would be virtually impossible – barring structural change in the court’s own legislation – ever to see Vladimir Putin, for example, tried in his absence for the horror he has visited upon Ukraine and its people.

Just a matter of weeks ago, three men, two Russians and a Ukrainian, were sentenced in absentia by a Dutch court to life imprisonment for the mass murder of all 298 passengers and crew on board Malaysia Airlines Flight MH17 in July 2014.

As many of the relatives of those who died said on the day of that verdict: hearing the sentences pronounced in the absence of the killers may not, in the end, count as real justice – but it gave a welcome sense of what real justice might one day be like.