The mandate of this jurisdiction will have to initiate prosecution against the senior political and military leaders responsible for the planning, preparation, launch or execution of the Russian invasion of Ukraine.
Ukraine and its European supporters approved, Friday, May 9, the creation of a special court responsible for judging Russia, from 2026 at the earliest, for the invasion of its neighbor. This decision was made at a meeting in Lviv, in western Ukraine, between the Ministers of Foreign Affairs of the European Union (EU), the day when Russia celebrated the 80th anniversary of victory against Nazi Germany in 1945 in Moscow.
“This court will ensure that the main leaders of the assault against Ukraine are brought to justice”said the head of European diplomacy, Kaja Kallas. “Each square centimeter of the war waged by Russia has been documented” et “There is no room for impunity”she said. How will this court work? What decisions can we expect? Franceinfo takes stock.
1 Why create a new court?
The International Criminal Court (ICC) has already launched international arrest mandates against President Vladimir Putin and other Russian officials for war crimes, such as the “illegal deportation” of Ukrainian children. But the ICC is not competent to judge the crime of “aggression” committed by Russia, defined as the fact of triggering or planning a war, details the site of the Council of Europe.
In order for the ICC to act, it is indeed necessary that the country under accusation recognizes its existence, which is not the case with Moscow. Or that it obtains the agreement of the United Nations Security Council, where Russia has a veto right. At the request of Ukraine, from 2022, supported by around forty countries, it was therefore decided to create a special court in order to bypass this obstacle.
2 What framework will he operate in?
The Special Court will be set up within the framework of the Council of Europe, an institution created in 1949 to guarantee human rights, the rule of law and democracy, and which brings together 46 countries. He will be funded by the forty states that support this initiative. Its competence will be based on the territorial competence of Ukraine. The headquarters of the ICC, in The Hague (Netherlands), volunteered to welcome it, but the place of the court has not yet been decided.
The special court will have the mandate to initiate prosecution against senior political and military leaders responsible for planning, preparation, launch or execution of the crime of “attack” against Ukraine, details the site of the Council of Europe. Managers of Biélorussia or North Korea, two allied countries in Moscow, could also be prosecuted “If evidence show that[ils] have played an important role in attack crime “.
It will be complementary to the ICC and the two jurisdictions should conclude mutual cooperation agreements. When a person is owned by the ICC, this detention will prevail over the procedures initiated before the Special Court.
3 How will it work?
An international investigation office has been at work since July 2023 and has already gathered hundreds of thousands of evidence. It is placed under the authority of Eurojust, the European agency responsible for strengthening judicial cooperation between the member states. Once the court has been created – not before 2026 -, the files will be gradually transferred to its prosecutors, who will benefit from the support of national jurisdictions for their own surveys, before possible charges. To enforce its decisions, the special court may conclude cooperation agreements with the States.
4 What do the accused risk?
In the event of a trial, the accused risk a lifetime imprisonment sentence, if the “extreme gravity” of the crime of aggression is recognized, or 30 years maximum. The confiscation of their property and fines are also possible, in accordance with the rules establishing this new court. All these goods will then be transferred to a compensation fund for the benefit of Ukraine, to finance its reconstruction.
If a trial is opened in the absence of the accused, the latter may request to be recurred after a possible conviction. In this case, however, he must agree to appear in person before the court.
5 Will Vladimir Putin be judged?
In principle, nothing prevents the Russian president to be tried one day, including in his absence. But in practice, it is unlikely that it will happen, as long as he remains head of state. His presidential immunity protects him, which does not however prevent the court from bringing together all the elements for a possible trial. Two other Russian officials, the Prime Minister and the Minister of Foreign Affairs, enjoy the same immunity, recalls the site of the Council of Europe.
The question also arises of the possible immunity which could be given to certain Russian officials, including President Vladimir Putin, in the event of a peace agreement concluded between Russia and Ukraine. Since Donald Trump’s return to the White House, the United States is actively campaigning for the rapid conclusion of such an agreement.
