The Council of Europe is already preparing documents that could potentially create a special tribunal to investigate Russian aggression. In particular, at the next meeting of the Core Group at the end of June in Bucharest, they should present the text of the agreement on the creation of a special tribunal between Ukraine and the Council of Europe, as well as the draft statute that will determine the essence of the tribunal. However, overcoming the "immunity of the three" remains decisive for the holding of the tribunal.
The former deputy minister of justice and now deputy head of the Presidentʼs Office for legal affairs Iryna Mudra told about this in an interview with Babel.
At the last meeting of the Council of Europe, the main provisions of the treaty with Ukraine on the establishment of the tribunal were already discussed — this is "a significant step forward, compared to what we started with," notes Mudra.
An appendix to the agreement will be the statute itself, which will determine the essence of the tribunal. The Core Group is already discussing such basic positions in the statute as: investigation and prosecution without the participation of a person, Putinʼs immunity, transfer of proceedings from Ukrainian jurisdiction, definition of the crime of aggression.
The draft charter should be presented at the next meeting of the Group at the end of June in Bucharest, but so far the members have disagreements on some issues — for example, on the issue of immunities. As for absentee trials, the example of the International Criminal Court (ICC) is mostly taken into account, which does not allow trials to be held without the participation of the accused. However, the ICC has a procedure — approval of the indictment, which in extreme cases is allowed without the participation of the accused. Based on the results of the review, there will be no verdict, but the review allows the court to determine whether the prosecution has enough evidence to proceed to the merits.
At the same time, the International Criminal Court conducts investigations, collects evidence, and issues arrest warrants in absentia.
"It is not a stumbling block for us if most countries insist on the face-to-face examination of the case of the Russian president. Of course, we would like Putin to sit there, but if everything is ready and we just have to wait for him to be arrested and delivered, Ukraine is ready to agree to that. But we definitely do not agree with attempts to protect him from responsibility at all while he is the head of state," says Mudra.
According to her, they have not yet decided on the optimal form of a special tribunal for the Russian Federation. However, the ideal option for now remains a special tribunal based on the decision of the UN Security Council, as it will definitely be able to overcome the "immunity of the three". However, due to the presence of Russia in the Security Council, such a scenario seems "unreal", says Mudra.
There is another option — a hybrid tribunal based on Ukrainian legislation with a possible transfer of proceedings to another jurisdiction. However, according to Mudroi, such a tribunal will be governed by Ukrainian legislation, so it is a weak option, because it will definitely not be possible to bring the main perpetrators of aggression — the "three" — to justice.
"It is difficult to imagine a tribunal for the crime of aggression, where the main perpetrator of this aggression will not be present. How can international law protect someone who is trying to destroy the entire system of international law? Punishment of Putin is the most important thing, it is necessary not only for Ukraine — it is necessary for the whole world. Itʼs a rule of law issue," says Mudra.
The USA, France, Italy and Canada do not yet agree that the tribunal should overcome the "immunity of the three". In this case, the issue of immunity may not be touched upon in the statute, but instead be left to the consideration of the judges of the tribunal. Mudra considers such an alternative to be quite a compromise, but the partners have not yet expressed any clear vision regarding such a proposal.
Since the US often does not want to create precedents for the responsibility of country leaders, Mudra does not rule out the possibility of holding a tribunal without States. However, the problem is that any position on "immunity of the three" must be agreed by all G7 countries. Therefore, the other G7 members must also agree to the proposal to refer this issue to the judges of the tribunal.
"If all of a sudden everyone except the US agrees, it will look strange that there are no States in this tribunal," Mudra said.
According to her, the issue of immunity remains the main problem. If it is not resolved, the expediency of such a tribunal format will be greatly questioned. And it is not desirable to create it with individual Baltic countries or other European countries, according to Mudra, because the question of its legitimacy will arise.
At the same time, she says that overcoming immunity is an exclusively political issue, and if political leaders agree, there will be no problems.