The President of the European Commission, Ursula von der Leyen, announced, on Wednesday 30 November, that the EU is proposing the creation of a special tribunal to investigate Russia’s crime of aggression in Ukraine. Until now, the European Commission had suggested relying on the International Criminal Court (ICC), which already investigates war crimes (see EUROPE 13042/2). However, Ukraine had been calling for months for the creation of a special international tribunal to try the crime of aggression (see EUROPE 13014/2, 13024/15).
The ICC is technically able to do this, according to the Rome Statute that established it. However, in order to investigate a person who has committed the crime of aggression, the country of origin of that person must be a party to the Rome Statute. This is not the case of Russia.
In addition, senior Russian officials, who could be charged with a crime of aggression by the ICC, are currently protected by immunity. Only a UN Security Council (UNSC) resolution could lift this immunity. However, an ad hoc international tribunal could potentially bypass it, according to an “options paper” that the Commission has sent to Member States.
Need for international support
The European Commission has envisaged two models for such a tribunal: a specialised, hybrid body integrated into national law, with international judges, or a special ad hoc body based on a multilateral treaty. In both cases, broad support for the UN is needed.
Failing a UNSC resolution, both could be established by a UN General Assembly resolution.
“We understand that it is still difficult to get people together on this issue, but we believe that with time it will be possible to have a sufficient number of countries supporting the creation of this tribunal”, said an EU official.
Confiscation of frozen assets
“Russia must also pay financially for the devastation that it caused”, says Ursula von der Leyen. She mentioned the frozen assets of the Central Bank of Russia and those of individuals and entities sanctioned by the EU. In May, the Commission had already presented a proposal for a directive to strengthen the rules on confiscation and recovery of assets (see EUROPE 12960/6).
For the assets of the Russian Central Bank, the Commission has put forward the idea of creating a structure to manage these funds. This would, in the short term, allow the interest generated to be redirected to Ukraine. In the longer term, the EU could link the return of the immobilised property to its owners to a peace agreement including compensation for Ukrainian losses, i.e. it could hold them more or less hostage.
The Commission estimates that €300 billion of Russian central bank money is tied up in the EU, but the figure could be much higher.
The frozen assets of persons and entities sanctioned in connection with the war in Ukraine amount to €19 billion at present. For the latter, a confiscation solution is also in the pipeline, but only for sanctioned persons who try to circumvent the sanctions and thus commit a criminal offence.
The Commission proposed, in May, to make the violation of sanctions a European infringement, as listed in the TFEU. This paves the way for a directive to define a minimum level of sanctions for the individuals and entities concerned, but above all for the possibility of confiscating assets. However, this would not apply to criminal offences that occurred before the entry into force of this text.
With the Council of the EU and the European Parliament having agreed to the extension of the European list of ‘EU crimes’ (see EUROPE 13072/24, 12988/3), the Commission will present its directive for minimum sentencing levels on 2 December.
It also provided the EU Council on 30 November with two documents detailing the options available to the EU on accountability for crimes committed in Ukraine and on the use of frozen assets.
See the document on the establishment of a special tribunal: https://aeur.eu/f/4d0
And the one on confiscation of assets: https://aeur.eu/f/4db (Original version in French by Léa Marchal)