International Criminal Court prosecutor Karim Khan warned yesterday Monday that the formation of a special court to hold Moscow accountable for its alleged crimes in Ukraine threatens to “derail” the investigations his agencies are conducting in the country.
Last week, European Commission President Ursula von der Leyen proposed the creation of a UN-backed special tribunal to prosecute Russian officials for what she called “crimes of aggression” committed by their forces in Ukraine.
But Khan responded to this European proposal by urging the international community to instead focus its efforts on supporting and funding the International Criminal Court, which is now investigating war crimes and crimes against humanity accused by Russia in Ukraine.
“We cannot be doomed to failure,” Khan told reporters in The Hague during the annual meeting of the 123 member states of the International Criminal Court. “We need the tools to do our job. We don’t have them.”
The prosecutor confirmed that there were “many promises that any initiative (setting up a special court) would not undermine the court”, but the International Criminal Court was already facing a budget deficit.
He added: “We must avoid fragmentation and lean towards solidarity instead.”
Since Russia has not signed the Treaty of Rome establishing the International Criminal Court, this judicial body cannot investigate Russian “crimes of aggression”, but is limited to investigating war crimes and crimes against humanity committed in Ukraine.
The only way to take the Russian military operation in Ukraine to the International Criminal Court is for the UN Security Council to pass a resolution on the matter, which is impossible since Russia, which has a permanent seat on the Council, would inevitably use its veto power to prevent such an attempt.
To get around this obstacle, von der Leyen proposed the creation of a court in one of the EU countries that could try Russia specifically for the crime of aggression, leaving war crimes and crimes against humanity to the International Criminal Court.
Von der Leyen said last Wednesday: “We, while continuing to support the International Criminal Court, propose the establishment of a special court, with the support of the United Nations, to investigate the crimes of aggression committed by Russia” against Ukraine.
But Khan said on Monday that states that are members of the Treaty of Rome can find ways for the International Criminal Court to try a non-member state for the crime of aggression.
Von der Leyen justified her efforts by saying that even if the “Russian leadership” is taken to the International Criminal Court, the immunity enjoyed by Russian officials protects them from prosecution while they are in power.
But an International Criminal Court prosecutor said on Monday that Brussels was grossly mistaken in its understanding of the issue of immunity for Russian officials, indicating that he would raise the issue personally with von der Leyen. “It is clear that the EU has distorted the law,” he said. “It doesn’t look like they are fully aware of the Rome Statute,” he added.
Ukraine and a number of Western countries supported the proposal to create a special court to try Russia for its military operation in Ukraine. The Netherlands has offered to host such a court, should one be established. On the other hand, Moscow says that this court, if created, will be illegitimate.