The European Union’s top official on Wednesday proposed the establishment of a new United Nations-backed court to investigate and prosecute Russian aggression in Ukraine, reflecting growing calls in Kyiv and the West for holding Moscow accountable in a specialized tribunal for atrocities committed during the war.
The idea, which would have to overcome significant procedural hurdles to become reality, underlines the frustration among many officials that the international justice system is not equipped to prosecute top Russian officials over the invasion, even as independent investigators have documented evidence of possible Russian war crimes, including the execution of civilians, unmarked graves and torture rooms.
“We are ready to start working with the international community to get the broadest international support possible for this specialized court,” Ursula von der Leyen, the president of the European Commission, the European Union’s executive arm, said in a statement proposing the new court on Wednesday.
Kyiv is pushing world leaders to create an international tribunal to work alongside the International Criminal Court to hold Russian soldiers and top Moscow officials accountable. President Volodymyr Zelensky made a plea for such a tribunal in his nightly address on Tuesday, the same day that justice ministers from the Group of 7 nations discussed a proposal to create a war-crimes tribunal in Berlin and Ukraine’s first lady made the case to British lawmakers.
“This is exactly what we have been suggesting for a long time,” Andriy Yermak, the head of the Ukrainian president’s office, said on Wednesday in response to Ms. von der Leyen’s proposal. “Russia will pay for crimes and destruction. They will not avoid it.”
Investigators have documented evidence of possible Russian war crimes since the war’s early days, including the execution of civilians in Bucha, a Kyiv suburb, in March. More recently, retreating Russian forces have left behind unmarked graves and torture rooms. Civilians killed execution-style were found this month in the southern region of Kherson.
The Kremlin has denied such accusations, and it could be years before any prosecutions for war crimes conclude. Ukraine has staged several war-crimes trials, and a host of international bodies are also investigating. But bringing top Russian leaders to justice would be difficult, and establishing the burden of proof for the most serious crimes is notoriously onerous.
A new court would work alongside the International Criminal Court, which was established in 2002 to investigate and prosecute war crimes, genocide and crimes against humanity. In 2018, its remit was expanded to include the crime of aggression, which prohibits any country’s leaders from “the planning, preparation, initiation or execution” of an attack on another nation in violation of the United Nations Charter — in other words, making it illegal to invade another country.
The court’s authority is generally limited to countries that have signed on to its treaty, which does not include Russia or Ukraine. Prosecuting the crime of aggression would require consent from Russia, which legal scholars say the Kremlin would never provide.
In his Tuesday address, Mr. Zelensky said that even at the level of the International Criminal Court, it was “still impossible to bring the highest political and military leadership of Russia to justice for the crime of aggression against our state.”
A new tribunal just for the purpose of prosecuting Russian leaders for the crime of aggression would be a way around that. The Netherlands, where the International Criminal Court is based, says it is willing to host such a new court.
Critics of the idea say that such a court would lack the appearance of impartiality, that it would need enormous investment and preparation time, and that the defendants would never participate.
Both Russian and Ukrainian soldiers have been accused of war crimes since Moscow ordered a full-scale invasion of Ukraine in late February, although the number and scale of reported Russian crimes are far greater.
