France is first major western country to publicly support proposal for special court to try for crime of aggression


Isobel Koshiw and Jennifer Rankin

1 Dec 2022

The Guardian


France has become the first major western state to publicly back the creation of a special tribunal to try top Russian officials – potentially including Vladimir Putin – for the crime of aggression in Ukraine.

The French foreign ministry said on Wednesday it was working with its European partners on the proposal. The statement came after the European Union, and the president of the European Commission, Ursula von der Leyen, lent support for the tribunal in a speech on the bloc’s plans for Ukraine.

The defendants of such a tribunal would be those with decision-making power involved in committing the crime of aggression, meaning the transgression of Ukraine’s borders by the Russian military. This would very likely mean just a handful of figures, including Putin as well as other figures such as the foreign minister, Sergei Lavrov, and the defence minister, Sergei Shoigu.

If they were convicted, even in absentia, the sentence would set in stone current relations with Russia by labelling Putin and his team international criminals and make sitting down at the negotiating table nearly impossible.

France’s announcement is a strong indicator that the west is becoming disillusioned with the prospect of negotiations with Russia.

The EU wants a specialised court because Russia has not signed the international criminal court (ICC) treaty, leaving the court in The Hague without jurisdiction over “crimes of aggression” committed by the Russian government. The ICC can judge specific war crimes and crimes against humanity in Ukraine, although Putin and his top ministers retain immunity from prosecution while in office.

Ukraine started campaigning for the creation of a special tribunal in April but faced pushback from its western allies. For months, it secured support only from eastern European states such as Poland and the Baltic countries.

In an interview in September, Andrii Smyrnov, who is leading the creation of the tribunal on behalf of Ukraine’s presidential office, said the west’s reluctance showed it was still keen to leave the door open for negotiations with Russia.

Von der Leyen said on Wednesday that any tribunal would require UN backing. She proposed setting up an independent international tribunal or a specialised court within a national justice

system. Either way, Ukraine has said the number of states that support such a tribunal is key to enforcing any sentencing.

The French decision came after a visit from a delegation of top Ukrainian officials. Ukraine’s presidential administration says the delegation will visit further key allies in December with the hope of rounding up more public pledges of support. They will visit Berlin first, followed by Washington and ending in London.

Officials already know that Russia, a permanent member of the UN security council, will veto any such move. Nevertheless they intend to table a resolution and, once it is shot down, seek support from the UN general assembly. One EU official said they expected “good enough numbers” in the UN to support the idea.

So far the position of the US, another country outside the ICC jurisdiction, remains unclear.

According to Reuters, the Dutch government, which hosts the ICC in The Hague, has also indicated its willingness to establish a new court in its territory. “It is our task, as the international community, to make sure that we do justice,” the country’s foreign minister, Wopke Hoekstra, said earlier this week. He said it should be done “through the ICC – but also through other measures”.

The fact that Russia committed the crime of aggression – and Russian forces entered Ukraine – was overwhelmingly accepted by a vote at the UN general assembly in March and has been admitted by Russia itself.

The French foreign ministry said on Wednesday it had begun working on the proposal to establish a special tribunal on Russia’s crime of aggression in Ukraine. “The aim is to obtain the broadest possible consensus on this project among members of the international community,” said France’s statement.