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NEW YORK — As world leaders gather for the U.N. General Assembly in New York, Ukraine’s government hopes to use the event to press its case for a special tribunal to prosecute war crimes.
With the war in Ukraine set to dominate proceedings, and new evidence of mass killings emerging in recent days, Volodymyr Zelenskyy’s administration sees a window of opportunity to turn global diplomatic opinion. It wants backing for a Nuremberg-style trial to be established to investigate atrocities committed by Russian troops.
The discovery of more than 450 bodies in mass graves in Izium in the East of the country last week as Ukrainian forces moved in on Russian-held territory has bolstered Ukraine’s case. Zelenskyy has said there is evidence of torture, branding Russia a “state sponsor of terrorism,” with Oleg Synegubov, head of Kharkiv’s regional administration, stating that bodies were found with hands tied behind their backs. Several news agencies confirmed the reports during a visit to the site organized by Ukrainian authorities on Friday.
Condemnation from world leaders who are meeting here in New York this week was swift. The U.S. Secretary of State Antony Blinken said it was likely more evidence that Russia had committed war crimes: “There can be no reason for what occurred there. At best it was indiscriminate; at worst it was intentional.” French President Emmanuel Macron said he condemned the “atrocities” “in the strongest terms.”
The issue of accountability will be high on the agenda at the world’s premier annual diplomatic gathering, which will also examine the global food crisis brought about by the war. The EU, the African Union and the United States will host a Global Food Security Summit on the sidelines of the UNGA, scheduled for Tuesday.
But despite the widespread criticism of Russia’s actions in Ukraine, it is not clear how the international community plans to hold Moscow accountable for war crimes.
In an interview with POLITICO, Andriy Smyrnov, deputy head of the office of the Ukrainian president, said the killings in Izium were the latest proof that an independent war crimes tribunal is needed.
“We want to ensure that those who are responsible for these crimes against Ukraine will be accountable, and that means the highest political and military leadership should be liable,” Smyrnov said. “How many more graves of innocent Ukrainians shall be found to make the whole world wake up and try and start doing something? Numerous graves of civilians who were killed were found in Bucha. Is this not enough?”
Following the withdrawal in April of Russian troops from Bucha, a city northwest of Kyiv, Ukrainian and international observers found evidence of civilian killings and other crimes. Russian President Vladimir Putin described the killings as “fake.”
So far there has been a lukewarm response from Ukraine’s allies, though.
Rather than a special tribunal, many countries see existing bodies like the International Criminal Court (ICC), as the best forum to prosecute any case against Russian. But that is insufficient for Ukrainian officials who worry that the ICC will only hold accountable those who directly perpetrated the crimes, rather than the higher echelons of the Putin government. Further, the ICC will not be able to prosecute the country for the over-arching offense of a “crime of aggression,” as Russia (like Ukraine) has not ratified the Rome Statute — the international agreement that established the court in 2002.
Smyrnov insists that a special international court would not impinge on the work of the ICC, and would be located outside Ukraine. “We see the Nuremberg trial as a model,” he said, referring to the post-World War II proceedings for Nazis. “We want to ensure that those who are responsible for these crimes against Ukraine will be accountable. That means the highest political and military leadership.”
Ukraine has already secured some support for its calls for a special tribunal.
Czech Foreign Minister Jan Lipavský has backed the idea — a significant intervention given that the Czech Republic currently holds the six-month rotating presidency of the Council of the European Union. “In the 21st century, such attacks against the civilian population are unthinkable and abhorrent … I call for the speedy establishment of a special international tribunal that will prosecute the crime of aggression.”
In a sign of growing support, EU foreign policy chief Josep Borrell told POLITICO on the sidelines of the U.N. General Assembly that he was open to the idea of an independent tribunal. “We’re very much in favor of making the Russians accountable for what they have done,” Borrell said. “And since Russia and Ukraine are not part of the international penal court, it would be maybe a good idea to look for a special jurisdiction.”
Smyrnov estimated that at least 10 European countries back Kyiv’s push for an independent tribunal, including Poland and the Baltic states. He also pointed to a resolution by the European Parliament in May calling for a special tribunal to be established. There have also been signals of support from the Council of Europe, the human rights body that became the first international agency to expel Russia after the invasion back in March.
But there is still significant resistance. Notably, European Commission President Ursula von der Leyen said last week that she wanted Putin to face the International Criminal Court. The U.S., and the U.N. have also expressed support for the ICC route. Privately, Ukrainians suspect that those opposed to the idea of a tribunal want to keep diplomatic channels with Moscow open.
Ukraine has already started investigating war crimes itself and has held trials based on the evidence collected in Bucha. Various agencies and NGOs are also documenting war crimes in the country, while the West has introduced a system of mobile teams that work with Ukrainian investigators.
Smyrnov is confident that the proposal will get positive political backing at the U.N. General Assembly this week, even as Russia’s veto on the Security Council means that any decision by the U.N.’s most powerful body is a non-starter. “From a legal perspective, it is very easy to prove and prosecute this crime,” he said. “We cannot continue to live in a world where it is normal for one state to start a war against another state and where the killing of people becomes normal.”
It’s also about preventing future invasions, he said. “I strongly believe that if the world had reacted to the aggression which took place in 2008 and annexation of Crimea in 2014 and brought the leadership of the Russian Federation to account, this situation would not have happened.”