Is the "Tribunal for Putin" becoming more real and imminent?

 

Over the past two and a half years of the Russian Federation's war against Ukraine, the stance of the international community regarding the special tribunal for the political and military leadership of Russia has changed - not in favor of Russia. This opinion exists both in Kiev and in the West.

 

"I just want to remind everyone that the discussion of creating a special tribunal for the crime of aggression began with an unequivocal 'no' and rejection by all partners," said Ukrainian Foreign Minister Dmytro Kuleba at the ministerial conference in The Hague on restoring justice for Ukraine, held on April 2.

"And now, two years later, we are focusing only on one issue, although undoubtedly very important. But so much has been reviewed!"

This is also confirmed by the declaration signed at the conference on behalf of 44 countries: it speaks of the commitment to establishing a special tribunal.

"We welcome the significant progress made in this regard and call on interested states and international organizations to intensify efforts to ensure a reliable legal framework and broad international support to complete this process," the Declaration states. "We, the international community, have a duty to adhere to the UN Charter and ensure that the crime of aggression against Ukraine does not go unpunished."

 

Will the special tribunal be formed this year?

 

The special tribunal will be established by the end of 2024 - at least that is the hope of European Commissioner for Justice Didier Reynders, with whom a DW correspondent spoke on the sidelines of the conference. "We are discussing this tribunal with various international actors. Two main options are currently being considered: an international court based on a multilateral agreement or a simplified decision - based on a bilateral agreement between Ukraine and the Council of Europe," the European Commissioner said.

Additionally, a new system for judicial transfers has been established in the EU. Yes, if criminal proceedings are ongoing in Ukraine, especially regarding the crime of aggression, they can be transferred to such a special court. Reynders believes that the establishment of the tribunal is in its final stages.

"The next step is a matter of political will. It is still early in the year, and this should be completed by the end of the year," Reynders concluded.

 

Netherlands is ready to host the special tribunal

 

The Netherlands has offered to host the special tribunal in this country, which was welcomed by the conference participants. This would be logical, as The Hague and its courts are referred to as the capital of world justice, and most importantly, the International Centre for Research on Aggression against Ukraine operates there, alongside Eurojust and the International Criminal Court investigating other crimes committed as a result of Russian aggression.

 

In this center, since July 2023, an international team of prosecutors has been analyzing evidence provided by various countries to a database created specifically for this purpose at Eurojust. Investigators are preparing a case that will later be referred to the special court.

 

And here arises the main procedural challenge for the special tribunal - the only significant issue mentioned by Dmytro Kuleba. That is the immunity of the Russian political elite. As stated by Ladislav Khamran, the head of Eurojust, to bring accused individuals to judicial accountability, it is necessary to strengthen international cooperation and promote legislative reforms. The case of Russian aggression against Ukraine deserves changes in international law, Kuleba believes, as it is a turning point in history.

 

How to lift immunity from the "trio"?

 

According to international law, heads of state, governments, and foreign ministers enjoy immunity from foreign jurisdictions. Immunity applies only while they hold such positions. The Ukrainian Foreign Minister spoke to DW about possible solutions to this problem. For example, the issue of lifting immunity can be left to the tribunal itself.

"There is international legal practice whereby the tribunal itself decides on its jurisdiction," Kuleba said. Another possible solution, according to him, is the removal of reservations regarding immunity within the International Coalition (Core Group) regarding the establishment of a Special Court for the Crime of Aggression against Ukraine. The minister explained that within this group, there are several countries saying, "We do not believe that immunity can be lifted from this 'trio'." At the same time, the other part of the Core Group opposes such a vision, and those countries that make reservations can simply withdraw them.

"Thirdly, there is a solution through drafting a text. The statute of the tribunal can be formulated in a way that addresses immunity by creating a precedent with specific grounds that will not be applied to other similar cases," Kuleba explained.

According to him, if politicians truly want to serve justice, lawyers and bankers always find a way - "otherwise, there would have been neither the Nuremberg Trials nor the International Criminal Tribunal for the former Yugoslavia."

 

Confiscation of Russian assets: countries are ready for discussion

 

The discussion on the use of assets frozen in the West from the Russian Federation has also been revived: in the Declaration, 44 countries participating in the conference on justice restoration for Ukraine supported the consideration of potential confiscation of frozen Russian assets.

"We welcome the discussion in the international community about the possible use of frozen Russian assets and the income from it in the interest of Ukraine in accordance with international law and our legal systems," the document states.

Overall, around 300 billion euros of state funds from the Central Bank of the Russian Federation are frozen worldwide, with most of them in the European Union territory. Earlier, there was usually talk only about using the income from these assets, but not the assets themselves. Specifically, the European Union expects a decision on transferring excess profits to Kyiv – amounting to around three billion euros annually.

In one way or another, the international community has committed to ensuring compensation for the damage caused as a result of the Russian Federation's unlawful actions in Ukraine. The first step towards this was the creation of a damage registry, where those affected by the war can apply. The next phase is the establishment of an international body or mechanism for reparations. It has been proposed that the Netherlands will host this body.

 

Positive dynamics give hope to Kyiv

 

"Today, the topic and tone of this conversation are very different from what it was a year ago," said Markian Klyuchkovskyi, Executive Director of the International Damage Register for Ukraine, in an interview with DW.

"The dynamics are very positive, which gives us reason to expect that a consensus will be reached."

He emphasized that practical options acceptable to participating countries are being sought.

 

"We understand that it is very difficult to make progress on these issues," said the official. "No one has done this before. There was no need for it, and conceptually, international law is not entirely ready for it."

As an example, Klyuchkovskyi cited the unique project of creating an international damage register: it was launched nine months ago - that's "lightning speed". However, of course, even this speed will never be enough for Ukraine," Klyuchkovskyi noted.