Serious questions are being asked about its feasibility and legality

Many obstacles surround the establishment of a special tribunal for the Russian war against Ukraine

• Vladimir Putin.

  EPA

• Investigators check one of the sites where Russia allegedly committed a war crime in Zaporizhia.

  Reuters

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While Kyiv and the West want to establish a court capable of putting Russian President Vladimir Putin in the dock for his war against Ukraine, experts warn that such a court will face serious challenges.

Last week, the European Union proposed creating a UN-backed "special court" to "prosecute Russia's crimes," the most concrete step yet toward creating such a judicial body.

This allows a circumvention of the fact that the ICC specializes in war crimes and crimes against humanity committed in Ukraine, but not the crime of “leading” the war in the case of Russia.

However, serious questions are being raised about the feasibility and legitimacy of such a court, and whether it will end up prosecuting the Kremlin or senior military officials.

political will

The first hurdle is the creation of such a tribunal, which would require international support to prosecute a war being waged in Europe.

"It's not insurmountable, but it requires effort," said Una Hathaway, professor of international law at Yale University, adding that it depends on "the political will of the people involved."

She noted that growing support for Ukraine is being observed at the international level, as 143 countries voted in mid-October during the United Nations General Assembly to condemn the illegal annexation of Ukrainian lands by Russia.

The General Assembly appears to be the only way to obtain UN support for the establishment of a judicial body, as Moscow would benefit from its permanent seat on the UN Security Council to veto any such proposal.

However, Hathaway indicated that support may be limited for a court that will include only European countries, or a regional organization such as the European Union, "because it sends the wrong message about war crime."

change the system

The next challenge is the arrest of suspects, as the war crime is limited to high-ranking officials in Russia.

Moscow said it would not recognize such a court, which "will not enjoy legitimacy."

"Unless there is a regime change in Russia, Putin and other high-ranking officials must leave Russia to be arrested in another country and taken (to court)," Cecile Rose, assistant professor of public international law at Leiden University in the Netherlands, told AFP. .

Immunity for Putin

It is likely that Vladimir Putin and his senior officials will be safe from arrest and prosecution, at least while they are in office and perhaps even afterward.

"If they are going to leave Russia, other countries will be obligated to respect the immunity of these people," Rose said, explaining that this issue is at the center of a heated debate.

This obstacle can be circumvented if the UN Security Council orders all countries to cooperate, as was the case in the International Criminal Court case against former Sudanese President Omar al-Bashir.

But this will also be met with Moscow's veto.

"It is very possible that there will be a trial without any of the defendants being held," Rose said.

However, a trial in absentia could create "a whole host of problems."

Undermining the International Criminal Court

The ICC investigates suspected war crimes and crimes against humanity in Ukraine, where Kyiv has accepted jurisdiction, but it does not have jurisdiction over crimes of aggression committed by countries, such as Russia, that have not ratified the Rome Statute establishing the court.

Creating a special court would make it possible to circumvent this hurdle, but it raises other concerns.

In this context, Rose said, "The importance of condemning these crimes (war crimes and crimes against humanity) in the future should not be underestimated, or obscured by focusing on the crime of aggression."

• The General Assembly appears to be the only way to obtain UN support for the establishment of a judicial body, as Moscow would benefit from its permanent seat on the UN Security Council to veto any such proposal.

• Support may be limited to a court that will include only European countries, or a regional organization such as the European Union, "because it sends the wrong message about war crime."

• Vladimir Putin and his senior officials are likely to be safe from arrest and prosecution, at least while they are in office and perhaps even afterwards.

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