Far from being the creative legal instrument for bringing alleged war criminals to justice like its supporters have spun it as, this newly created structure is emblematic of the West’s so-called “rules-based order” wherein this collection of countries seeks to unilaterally impose its will onto all others under faux legal pretexts.
The European Parliament overwhelmingly voted to create a so-called “special tribunal” to investigate alleged Russian war crimes carried out throughout the course of Moscow’s special military operation in Ukraine. The resolution isn’t legally binding, though it’s nevertheless expected that that many EU members will actively participate in it seeing as how this body’s decisions figure prominently in their policymaking.
The problem, however, is that this “special tribunal” isn’t what it seems at first glance. Casual observers might not be aware of this, but Ukraine never ratified the Rome Statute for formally joining the International Criminal Court (ICC). It’s closely cooperating with that institution nowadays, but its lack of official membership somewhat hinders the ICC’s activities. Thus, one of the reasons behind this “special tribunal” is to fill the legal vacuum that was partially created by none other than Kiev itself.
The second point of interest for casual observers is that this newly created structure will also investigate Belarusian President Alexander Lukashenko and the rest of his country’s military and political leadership on the basis that Belarus is an “enabling state” for Russia’s alleged “crime of aggression”. The thing is, there’s no such thing as a so-called “enabling state” mentioned anywhere in the Rome Statute, which means that the European Parliament just invented its own politically self-serving legal concept.
Not only that, but the resolution that this body just passed also encourages the EU “to engage in discussion on the legal possibility of using sovereign assets of the Russian state as reparations.” The text added that this could potentially be done “by denying such assets the protections of sovereign immunity”. This sets an extremely disturbing precedent whereby one of the principles of customary international law is being unilaterally abrogated, which could have very unpredictable consequences.
Considering these three contentious observations, it’s clear that the European Parliament’s “special tribunal” is quite problematic. For starters, it seeks to go around the United Nations and its related institutions that are supposed to be the supreme arbiters of international law by creating a quasi-legal structure for investigating a conflict in a country that isn’t even part of the ICC, which itself is contentious and problematic for reasons beyond the scope of the present analysis.
Second, the European Parliament just invented its own legal concept, that of a so-called “enabling state” when it comes to the “crime of aggression”. This shows that bureaucrats from that continent will stop at nothing in trying to convince others across the world that their version of events about the Ukrainian Conflict isn’t just morally right, but also legally sound. The first is questionable while the second is counterfactual, yet they’re trying to manipulate perceptions about the latter via their “special tribunal”.
And third, the precedent of unilaterally abrogating one of the principles of customary international law – sovereign immunity – by discussing the seizure and redistribution of foreign state assets within European countries’ jurisdictions threatens to undermine global confidence in that continent. After all, there’s no guarantee that the European Parliament might not emulate the literally illegal action that it’s encouraging the EU to take against Russia when it comes to other states sometime in the future.
Altogether, the European Parliament’s “special tribunal” isn’t what it seems. Far from being the creative legal instrument for bringing alleged war criminals to justice like its supporters have spun it as, this newly created structure is emblematic of the West’s so-called “rules-based order” wherein this collection of countries seeks to unilaterally impose its will onto all others under faux legal pretexts. For that reason, this “special tribunal” should be treated with the utmost suspicion and even condemned.