Ukrainian President Volodymyr Zelenskyy has urged the United States to support the establishment of a special court to prosecute the Russian leadership for committing acts of violence during the war in Ukraine.
“Peace is impossible without justice and justice is impossible without due process,” Zelenskyy said in a video message read by Andriy Yermak, his presidential deputy, at an event held by the United States Institute of Peace on Wednesday.
“This is why it is important for the peace process to establish a special court for crimes committed in Russia against Ukraine,” he added.
The president’s request came after months of efforts by Ukrainian delegations to persuade European countries and the US to establish a special court.
Often referred to as the “mother of all crimes”, violent crime occurs when a country’s leadership uses military force against another country illegally – in this case, the accused would be Russian President Vladimir Putin and his inner circle.
The International Criminal Court (ICC) cannot prosecute citizens of a non-member state for crimes of cruelty, and Russia is not a party to the ICC.
The ICC is instead investigating war crimes and crimes against humanity committed in Ukraine, which are difficult to link directly to orders from the Kremlin.
However, some experts question the legitimacy of the special court and are concerned about the issue of judicial selection.
The push for a special court intensified last week after European Union Commission chief Ursula von der Leyen approved the request. Soon after, France became the first country in Europe to publicly announce its support. The Baltic states and the Netherlands are also said to be on the rise, while the US, Germany and the United Kingdom have expressed doubts.
Von der Leyen said the special court could be created with the help of the United Nations. Since Russia has a veto in the UN Security Council due to its status as a permanent member, the vote can only be fired at the UN General Assembly. The Kremlin strongly rejected the proposal, saying it would not be acceptable.
The organization proposed two methods. A permanent international court established by an international agreement or “hybrid court” integrated into the national justice system with international judges. In both areas, the UN’s blessing “may be important,” read the Commission’s paper published on November 30.
The court will focus on a small number of defendants, including Russian political leaders and senior military leaders, who would have avoided facing justice at the ICC, said Philippe Sands, a professor of international law at University College London, who was the first to comment. establishment of a special court.
“I foresaw the possibility that in three or four years there would be a few low-level people indicted at the ICC – but not the perpetrators of these atrocities,” Sands told Al Jazeera.
After fulfilling the court’s decision in an opinion piece in the Financial Times, Sands said he received unexpected phone calls from experts and leaders, including former British Prime Minister Gordon Brown.
“And now the idea of planning is spreading to the general assembly of the United Nations,” he said.
Despite the prospect of Putin and other Russian officials appearing in international court at this point, Sands believes it could persuade Putin’s inner circle to dissent.
“For me, the idea of a special court is a means to an end, not an end itself,” he said.
‘A la carte’ justice
However, critics of the special court say it will drain money from the ICC and undermine its work.
The ICC’s chief prosecutor, Karim Khan, opposed the court’s decision, saying that while the ICC cannot prosecute Putin for war crimes as the head of state is immune, his officials can be prosecuted.
“We need to avoid division, instead work towards integration,” Khan told the annual meeting of the ICC governing body on Monday.
The court will also require a great effort from the EU to find support among countries from the Global South who will see it as a demonstration of selective justice, said Makane Moïse Mbengue, professor of international law at the University of Geneva.
The UN resolution in mid-November that asked Russia to pay for the war in Ukraine was passed with 94 votes in favor, 14 against and 74 abstentions.
“Such a number shows that the international community does not really agree that special cases should be brought to Ukraine,” Mbengue, who is also the president of the African Society of International Law, told Al Jazeera.
In contrast, 35 countries refused to vote on the UN resolution condemning Russia’s annexation of four regions of Ukraine.
The push to set up an anti-Moscow court has also been met with skepticism from critics as it has not been used to deal with other international crimes, including the US-UK invasion of Iraq.
“There is a feeling that international justice is less,” added Mbengue.
The prospect that the UN resolution will pass with a weak majority may also send a bad message about international aid to Ukraine.
For this reason, the EU’s decision to accept the court was received with anger among several UN member states, especially among the G7 countries who were worried that the vote at the General Assembly would lead to “great disagreements between the Global South and the North,” an expert informed about this matter he said.
There are also concerns about what the court will impose. “If you can do it in Russia today, you can do it for me tomorrow,” the source added.
There are also questions about the rules chosen by the EU and the real impact the court will have. It is not yet known how the court will deal with the issue of the head of state.
In addition, “the organization cannot have the support of the security council, which means that there can be no law from other countries to cooperate,” said Anthony Dworkin, director of the European Council on Foreign Relations on human rights and justice.
Because of this, the investigation in the court would be “a matter of delay [Putin]but not something to be afraid of,” he added.