Two influential Democratic senators are urging the Biden administration to change course and back the establishment of a U.N.-sanctioned special tribunal to hold Russian leaders accountable for the 2022 invasion of Ukraine.<\/p>\n
On Wednesday, Democrats Ben Cardin and Tim Kaine, both prominent members of the Senate Foreign Relations Committee, introduced a resolution calling on the administration \u201cto use its voice and vote in international institutions to support the creation of a special international criminal tribunal to hold accountable the leaders of the Russian Federation who led and sanctioned aggression in Ukraine.\u201d<\/p>\n
The resolution supports a long-standing Ukrainian demand: a special tribunal for Russia\u2019s \u201ccrime of aggression.\u201d The U.N. General Assembly would have to greenlight the proposed tribunal, terms of which Ukraine and the United Nations would negotiate.<\/p>\n
Different treatment<\/p>\n
The crime of aggression \u2013 defined as \u201cplanning, preparation, initiation or execution\u201d of an act of aggression, such as an armed invasion \u2013 is distinct from war crimes, crimes against humanity or genocide.<\/p>\n
The International Criminal Court can prosecute those other crimes, but not the crime of aggression. Its jurisdiction over this crime extends only to countries that have ratified the Rome Statute that established the court. Russia, like the United States, is not a party to the treaty.<\/p>\n
That is why Ukraine and its allies have been pushing for an alternative mechanism to hold Russian leaders accountable.<\/p>\n
In March, the Biden Administration proposed an \u201cinternationalized tribunal\u201d within Ukraine\u2019s judicial system but with outside support.<\/p>\n
International elements<\/p>\n
\u201cWe envision such a court having significant international elements \u2014 in the form of substantive law, personnel, information sources and structure,\u201d Beth van Schaack, the State Department\u2019s top diplomat for global criminal justice, said in announcing the administration\u2019s endorsement.<\/p>\n
The court could initially function outside Ukraine, elsewhere in Europe, she said.<\/p>\n
The U.S. plan has the support of the Group of 7 bloc of nations but faces opposition from Ukrainian officials who say implementing it would require a constitutional amendment that is impractical during wartime.<\/p>\n
Ukrainian officials say a U.N.-sanctioned, Nuremberg-style tribunal would close a \u201cgap in accountability\u201d in international law and, unlike a court based in Ukraine, enjoy international legitimacy. Last month, Ukrainian President Volodymyr Zelenskyy renewed his call for such an initiative, which is supported by several small European countries.<\/p>\n
\u201cIf we want true justice, we should not look for excuses and should not refer to the shortcomings of the current international law but make bold decisions that will correct the shortcomings of those norms,\u201d Zelenskyy said in a speech at The Hague last month.<\/p>\n
In March, the ICC issued an arrest warrant for Russian President Vladimir Putin, accusing him of forcibly deporting hundreds of Ukrainian children to Russia. But the warrant was for Putin\u2019s involvement in alleged war crimes, not the crime of aggression.<\/p>\n
Russia has blasted the arrest warrant and questioned the legitimacy of a special tribunal.<\/p>\n
Legal experts say the U.S. plan hinges on Ukrainian support. They also say Putin and his inner circle will escape prosecution as long as they remain in power.<\/p>\n
\u201cI’m worried that by supporting this sort of hybrid model, the message that the U.S. sends is that it cares about accountability for aggression in a way that protects the architects of the crime,\u201d said Rebecca Hamilton, an associate professor of law at American University, Washington College of Law,<\/p>\n
A State Department spokesperson said the department does not comment on proposed legislation or resolutions and referred VOA to van Schaack\u2019s testimony.<\/p>\n
\u201cAs Ambassador\u2026 Van Schaak has expressed: There can be no peace without justice in Ukraine. Justice for the millions who have had their lives disrupted and destroyed, as a result of the senseless, unprovoked, and illegal war of territorial conquest launched by Vladimir Putin,\u201d the spokesperson said.<\/p>\n
The last time the crime of aggression was prosecuted was in the 1940s when German and Japanese leaders were tried in Nuremberg and Tokyo for what the International Military Tribunal called the \u201csupreme international crime.\u201d<\/p>\n
At a Senate Foreign Relations Committee hearing on Wednesday, Senator Cardin criticized the Biden Administration\u2019s plan. A Ukraine-based tribunal, Carden said, would face questions about \u201cperceived impartiality\u201d and potential claims of immunity from Russian officials.<\/p>\n
Under international law, no national court can prosecute another country\u2019s head of state or equivalent officials.<\/p>\n
\u201cI don\u2019t know how you overcome that with the method you\u2019re pursuing,\u201d Cardin told van Schaack, referring to the court\u2019s perceived impartiality.<\/p>\n
Obstacles<\/p>\n
Van Schaack responded that the Administration opted for a hybrid model because a U.N.-backed tribunal would face legal and practical hurdles of its own.<\/p>\n
Legally, the U.N. General Assembly may lack the authority to set up a court with jurisdiction over Russia\u2019s leaders.<\/p>\n
Practically, \u201cthere are some serious concerns about whether we have the votes within the General Assembly to create a body of this nature,\u201d she said.<\/p>\n
But Cardin pushed back, urging the administration to enlist international support.<\/p>\n
\u201cIt cannot be a sole U.S. effort,\u201d Cardin said. \u201cIt has got to be a collective action. You\u2019ve got to nurture this before you take it to a vote.\u201d<\/p>\n
A Cardin spokesperson said other senators might join as co-sponsors of the resolution but so far only Cardin and Kaine have signed on. She said in an email to VOA that there is no fixed date for a vote on the resolution.<\/p>\n
Hamilton said the Cardin-Kaine resolution is significant because it is \u201ca strong signal that [Congress] wants to go in a different direction from the one that the administration is proposing.\u201d<\/p>\n
\u201cAnd I think it may also be significant for the proponents of an international tribunal, outside of the U.S. and in particular Ukraine, to hear that there are parts of the U.S. system that at least would support a truly international tribunal,\u201d Hamilton, a former lawyer in the prosecutorial division of the International Criminal Court, said in an interview.<\/p>\n","protected":false},"excerpt":{"rendered":"
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