Special Court Needed for Russian Crimes in Ukraine, E.U. Chief Says

The European Union’s top official on Wednesday proposed the creation of a United Nations-backed court to investigate and prosecute possible Russian crimes in the war in Ukraine, reflecting growing calls in Kyiv and the West for holding Moscow accountable for atrocities committed since its invasion.

The idea, which would have to overcome significant procedural hurdles to become reality, underlines growing frustration among Ukrainians and their supporters 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 war crimes, including the murder and torture of civilians.

“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.

Whatever doubts there are about the proposal’s coming to fruition, Ukrainian officials hailed it as an important step. “This is exactly what we have been suggesting for a long time,” said Andriy Yermak, the head of the Ukrainian president’s office. “Russia will pay for crimes and destruction. They will not avoid it.”

A similar tribunal already exists, the International Criminal Court in The Hague, but its authority is generally limited to the 123 countries that have signed on to the treaty that created it. That list that does not include Russia or Ukraine — or the United States — though Ukraine has granted the court jurisdiction to prosecute war crimes, crimes against humanity and genocide.

The call for a new court to address the war’s conduct reflects efforts by Kyiv’s Western backers to step up their support, despite the growing direct costs of aid and damage to the world economy, and the lack of prospects for ending the fighting any time soon.

A blackout in Kyiv on Wednesday.Credit…Jeff J Mitchell/Getty Images

Western countries this week set up a formal group to help repair Ukraine’s devastated electrical grid, which the Russians have targeted with hundreds of missile, drone and artillery strikes in an effort to condemn Ukrainians to living without power, heat or running water during the lethally cold winter. The United States said on Tuesday that it was giving $53 million worth of equipment to help repair Ukraine’s energy infrastructure, and officials said they hoped the announcement would spur other countries to give similar aid.

Secretary of State Antony J. Blinken said on Wednesday that the United States must continue to supply Ukraine with weapons, particularly air-defense systems to shield the country from the continuing barrage. Some Republican members of Congress have sharply questioned that expense — more than $19 billion from the United States and a similar amount from other NATO countries since the war began in February — and their party will take control of the House in January.

Speaking of the arms and electrical gear, Mr. Blinken said, “These are flip sides of the same coin.” He spoke at a news conference in Bucharest, Romania, where NATO diplomats concluded a two-day meeting.

President Volodymyr Zelensky of Ukraine engaged in a very different kind of diplomacy on Wednesday, rebuking the billionaire owner of Twitter, Elon Musk, for making pronouncements about how to resolve the conflict, and inviting him to visit and see for himself the human and physical damage done by Russian forces.

“If you want to understand what Russia has done here, come to Ukraine and you will see this with your own eyes,” Mr. Zelensky said on Wednesday, speaking via video link to The New York Times’ DealBook Summit. “After that, you will tell us how to end this war, who started and when we can end it.”

President Volodymyr Zelensky of Ukraine appeared remotely at The Times’ DealBook Summit on Wednesday.Credit…Hiroko Masuike/The New York Times

Eight weeks ago, Mr. Musk tweeted a proposed “Ukraine-Russia peace plan,” including plebiscites on territorial concessions by Ukraine and guaranteed Ukrainian neutrality. The Kremlin praised him, but Ukrainians and their allies accused him of advocating capitulation to President Vladimir V. Putin of Russia, who has already claimed to annex vast swaths of Ukraine and has insisted that Ukraine must never join NATO.

Mr. Musk already plays a vital role in Ukraine; his company SpaceX operates the satellite Starlink internet service, a vital information lifeline for soldiers and civilians in Ukraine as Russia destroys more of the country’s ground-based systems. Mr. Musk, who said Starlink was losing money there, backed off a threat in October to withdraw funding for the service in Ukraine.

On Tuesday, NATO stated that it remained open to Ukraine’s membership some day, and on Wednesday, the German Parliament recognized the early 1930s famine that killed millions of Ukrainians as a genocide committed by the Soviet Union. Both stances are sure to infuriate the Kremlin, which has accused the West of fomenting hatred of Russia and wanting to destroy it.

Mr. Zelensky’s government has pressed world leaders for months to create an international tribunal to work alongside the I.C.C. to hold Russian soldiers and top Moscow officials accountable.

He made such a plea himself in his video address on Tuesday night, protesting that it was “still impossible to bring the highest political and military leadership of Russia to justice for the crime of aggression against our state.”

The I.C.C. was formed under the 1998 Treaty of Rome and began operation 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.

A volunteer medic evacuating a wounded Ukrainian soldier near Bakhmut, in the Donetsk region, on Monday.Credit…Anatolii Stepanov/Agence France-Presse — Getty Images

Though Russia is not a signatory to that treaty, it is a party to the 1949 Geneva Conventions, which prohibit the willful killing of civilians, destruction that is not militarily necessary, torture, summary execution and the forced transfer of populations — all offenses the Kremlin’s forces have been accused of committing in Ukraine. But the conventions have no international enforcement mechanism.

The Kremlin has denied the accusations against its forces, but international and Ukrainian Investigators have documented evidence of possible Russian war crimes since the war’s early days, including the killing of hundreds of civilians in Bucha, a Kyiv suburb, in March. More recently, retreating Russian forces have left unmarked mass graves and torture rooms. Civilians killed execution-style were found this month in the southern region of Kherson.

On a far smaller scale, there has also been evidence of possible war crimes by Ukrainians, particularly the killing of prisoners of war.

Ukraine has conducted several war-crimes trials against Russian forces, and a host of international bodies are investigating. But bringing responsible Russians to trial in a new court — aside from captured low-level troops — would be extremely difficult.

Moscow is highly unlikely to cooperate and turn over either suspects or evidence, and the I.C.C. does not allow prosecution in absentia. Establishing the burden of proof for the most serious crimes is notoriously onerous, and any criminal cases could take years to develop and be open to claims of bias.

Crossing a destroyed bridge in Bakhmut, Ukraine, on Tuesday.Credit…Yevhen Titov/Agence France-Presse — Getty Images

Edward Wong and Matthew Mpoke Bigg contributed reporting.

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