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 their invasion of Ukraine.

On Wednesday, Democrats Ben Cardin and Tim Kaine, both members of the Senate Foreign Relations Committee, introduced a resolution calling on the administration “to 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.”

The resolution advances an idea long favored by Ukraine: a special tribunal for Russia’s “crime of aggression,” which would be recommended by the U.N. General Assembly and negotiated between Ukraine and the United Nations.

Different treatment

The crime of aggression is treated differently in international law from war crimes, crimes against humanity or genocide. Those other crimes are being investigated by the International Criminal Court in The Hague and Ukrainian prosecutors, with the support of the United States.

But the Biden administration favors another approach to prosecuting the crime of aggression, which is defined as the “planning, preparation, initiation or execution” of an act of aggression, such as an armed invasion.

While the ICC has authority to investigate war crimes, crimes against humanity and genocide, its authority to prosecute the crime of aggression extends only to countries bound by the Rome Statute that established the court. Russia, like the U.S., is not a signatory.

In March, Beth van Schaack, the top U.S. diplomat for global criminal justice, announced Washington’s endorsement of an “internationalized” tribunal for Russia, embedded in Ukraine’s judicial system but drawing on outside support.

International elements

“We envision such a court having significant international elements — in the form of substantive law, personnel, information sources and structure,” van Schaack said.

The court could initially operate outside Ukraine, elsewhere in Europe, she said.

The U.S. proposal is backed by the G-7 countries, but faces resistance from Ukrainian officials who say implementing it would require a constitutional amendment that is unfeasible during wartime.

Last month, Ukrainian President Volodymyr Zelenskyy renewed his call for a special ad hoc tribunal sanctioned by the U.N. General Assembly. Such a tribunal would close what Ukrainian officials have called a “gap in accountability” in international law.

“If 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,” Zelenskyy said in a speech at The Hague last month.

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 “supreme international crime.”

In March, the ICC issued an arrest warrant for Russian President Vladimir Putin over the abduction of children from Ukraine. The arrest warrant was for war crimes in Ukraine, not the crime of aggression.

Critics of the U.S. proposal say a Ukraine-based tribunal would face questions about its impartiality and resistance from Russian officials who could claim immunity. Under international law, no national court can prosecute another country’s head of state or equivalent officials.

“I don’t know how you overcome that with the method you’re pursuing,” Cardin told van Schaack during a Senate Foreign Relations Committee hearing on Wednesday, referring to the court’s perceived impartiality.

Obstacles

Van Schaack responded that a U.N.-backed tribunal faces legal and practical hurdles.

Legally, the General Assembly may lack the authority to set up a court with jurisdiction over Russia’s leaders.

Practically, “there are some serious concerns about whether we have the votes within the General Assembly to create a body of this nature,” she said.

But Cardin pushed back, urging the administration to mobilize international support.

“It cannot be a sole U.S. effort,” Cardin said. “It has got to be a collective action. You’ve got to nurture this before you take it to a vote.”

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.

A State Department spokesperson said the department does not comment on proposed legislation or resolutions and referred VOA to van Schaack’s testimony.

Rebecca Hamilton, an associate professor of law at American University Washington College of Law, said the Cardin-Kaine resolution is significant because it is “a strong signal that [Congress] wants to go in a different direction from the one that the administration is proposing.”

“And 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,” Hamilton, a former lawyer in the prosecutorial division of the International Criminal Court, said in an interview.
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