Of the two options proposed by the European Commission for dealing with Russia’s crime of aggression in Ukraine (see EUROPE 13074/3), a special international tribunal is preferred by Member States at this stage. The justice ministers of the EU27 met in Stockholm on Thursday 26 and Friday 27 January to discuss the prosecution of war crimes in Ukraine and the fight against organised crime, but the idea of a special tribunal for the crime of aggression loomed large over the discussions.
On arrival at the meeting, some ministers gave their respective positions on the form of the tribunal that should prosecute those most responsible for the war in Russia. Belgium, Latvia, Lithuania and Luxembourg have indicated their preference for a special international tribunal, rather than a hybrid format based on Ukrainian law.
“There should not be any questions about the independence of the tribunal”, said Luxembourg Justice Minister Sam Tanson, who believes that this would be the major drawback of a hybrid tribunal.
Above all, such a format would face the impossibility of convicting the highest officials because of their immunity. This is guaranteed under international law, in the context of any prosecution by a national court. “If you can’t solve this problem, the response is diminished. We should prosecute those responsible at the highest level and not just the people in the army”, was the reaction of Belgian minister Vincent Van Quickenborne. Conversely, a new international structure could possibly circumvent the immunity issue, the European Commission said in its 30 November note (see EUROPE 13074/3).
Until now, it was mainly Germany, through its Foreign Minister Annalena Baerbock (see EUROPE 13105/2), that had spoken out in favour of a hybrid tribunal based on Ukrainian law. His French counterpart, Catherine Colonna, also raised this hypothesis in an interview with the French channel LCI on 22 January.
Interviewed by EUROPE, Isabelle Jegouzo, adviser for European and international affairs at the French Ministry of Justice, echoed Ms Colonna’s comments: “We are moving more in the direction of a hybrid tribunal, but this is still under discussion”.
It is crucial to have a unified position among member states on the issue of the tribunal before having a discussion on the international scene, insisted EU Justice Commissioner Didier Reynders.
Pending such a common position, the EU wants to set up an “operational mechanism”, he told EUROPE. This will be done within the framework of the Joint Investigation Team (JIT) already in place on war crimes in Ukraine. This mechanism should be called the ‘International Coordination Centre for the Prosecution of the Crime of Aggression’ and in no way preempts the discussion on a future special tribunal, Eurojust President Ladislav Hamran told EUROPE (see other news).
Strengthening the prosecution of war crimes
Participants at the meeting in Stockholm listened to Ukrainian Justice Minister Denis Malyuska, speaking remotely, who told them about the judicial work in his country on war crimes and called for a “pragmatic approach” in prosecutions, according to Swedish Justice Minister Gunnar Strömmer.
About 65,000 incidents have been reported so far on Ukrainian territory or through the testimony of refugees, Reynders said. “We are facing the largest number of documented war crimes ever”, he said.
Finally, Ladislav Hamran said that “the more countries investigate the better to address the accountability for core international crimes”. (Original version in French by Léa Marchal)