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.

On Wednesday, Democrats Ben Cardin and Tim Kaine, both prominent 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 supports a long-standing Ukrainian demand: a special tribunal for Russia’s “crime of aggression.” The U.N. General Assembly would have to greenlight the proposed tribunal, terms of which Ukraine and the United Nations would negotiate.

Different treatment

The crime of aggression – defined as “planning, preparation, initiation or execution” of an act of aggression, such as an armed invasion – is distinct from war crimes, crimes against humanity or genocide.

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.

That is why Ukraine and its allies have been pushing for an alternative mechanism to hold Russian leaders accountable.

In March, the Biden Administration proposed an “internationalized tribunal” within Ukraine’s judicial system but with outside support.

International elements

“We envision such a court having significant international elements — in the form of substantive law, personnel, information sources and structure,” Beth van Schaack, the State Department’s top diplomat for global criminal justice, said in announcing the administration’s endorsement.

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

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.

Ukrainian officials say a U.N.-sanctioned, Nuremberg-style tribunal would close a “gap in accountability” 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.

“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.

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’s involvement in alleged war crimes, not the crime of aggression.

Russia has blasted the arrest warrant and questioned the legitimacy of a special tribunal.

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.

“I’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,” said Rebecca Hamilton, an associate professor of law at American University, Washington College of Law,

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

“As Ambassador… 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,” the spokesperson said.

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.”

At a Senate Foreign Relations Committee hearing on Wednesday, Senator Cardin criticized the Biden Administration’s plan. A Ukraine-based tribunal, Carden said, would face questions about “perceived impartiality” and potential claims of immunity from Russian officials.

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, referring to the court’s perceived impartiality.

Obstacles

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.

Legally, the U.N. 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 enlist 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.

Hamilton 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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