The European Commission will submit its proposal for a specialised court to investigate and prosecute possible war crimes committed by Russia in Ukraine to the UN Security Council despite knowing the move is doomed to fail, an EU official said on Wednesday.
The commission then plans to bring its proposal, which was announced on Wednesday morning by its President Ursula von der Leyen, to the UN General Assembly, where discussions are also expected to be “difficult”, said the official.
The commission believes that over time, “it will become possible for a good enough number of members to understand the importance of what we are doing here”, the official said.
The official’s comments highlighted the expected difficulties in finding an international consensus on establishing such a tribunal, which could be ad hoc or hybrid, despite intense pressure from Ukraine and some of the EU’s 27 member states.
Kyiv has asked for an international tribunal that is separate from the International Criminal Court in The Hague to specifically investigate Russia’s crime of aggression, the official said. “Of course, it would require as I have said strong UN backing and an international agreement of sorts, but we do believe that this is possible”, they added.
Russia is not a signatory to the ICC’s treaty but is a permanent member of the UN Security Council, meaning it can veto votes. Moscow is highly unlikely to approve any move to judge its own war crimes in Ukraine.
On Wednesday, Ukraine welcomed the EU’s idea of a specialised court. “This is exactly what we have been suggesting for a long time,” said Andriy Yermak, Chief of Staff to Ukrainian President Volodymyr Zelenskyy, on social media. “Russia will pay for crimes and destruction. They will not avoid it.”
European heads of states last month asked the commission to come up with proposals for accountability for war crimes in Ukraine. Leaders such as Estonian Prime Minister Kaja Kallas have also publicly called for using frozen Russian assets to rebuild parts of Ukraine that have been destroyed.
The commission official said €300 billion ($311.13 billion) of the Russian central bank's assets and its subsidiaries had been immobilised within EU and the G7 nations — Canada, France, Germany, Italy, Japan, the UK and the US. There are an additional €19 billion of private Russian assets frozen in the EU.
In a video posted on Twitter, Ms von der Leyen said the EU was looking for the “broadest international support possible for this specialised court”. She added that “Russia and its oligarchs have to compensate Ukraine for the damage and cover the costs for rebuilding the country”.
Ms von der Leyen estimated the damage to Ukraine at €600 billion.
But using Russian frozen assets to rebuild Ukraine is also fraught with legal difficulties, said another commission official.
Brussels cannot directly confiscate frozen private funds without them being linked with a criminal offence. Crimes are not retroactive and must be identified and confirmed after new regulations enter into force.
To help circumvent such difficulties, the European Council on Monday added the violation of Russian sanctions to the list of European crimes. On that basis, the commission will on Friday make a proposal to the EU Council defining the crime and penalties linked to it.
As far as Russian central bank funds are concerned, the situation is further complicated by state immunity.
The commission suggests creating a fund that would actively manage frozen assets and use the proceeds to rebuild Ukraine. “What we have in mind are liquid assets,” said the second official. “So mainly cash, to make it simple.”
The official called for “careful financial management” of the fund because financial risks would “probably” be borne by the EU.
While the fund’s proceeds would go to Ukraine, the assets themselves would be returned to their owners once Russia and Ukraine sign a peace agreement and the government in Kyiv has received compensation for the damages caused by the war.
“It’s not easy,” said the second official. “It will require strong backing from the international community but we believe that it is doable.”
The first official said further discussions are expected at a G7 task force meeting next month.