Foreign Minister Hoekstra reiterated today that the Netherlands is ready to host such a court, according to Zelenski’s wishes. According to Knoops, this position is mostly politically motivated and not well thought out.
“I think Minister Hoekstra is still too little aware of all the legal pitfalls of such an assault court,” says Knoops. “This needs to be thought through much better by international lawyers, who also have to advise the government.”
Limited authority
“Lawyers are very pessimistic about such a court,” Knoops says. According to the lawyer, it is unrealistic for a United Nations international court to succeed, because Russia has a veto in the UN Security Council. A United Nations General Assembly could also adopt it, but then there must be a two-thirds majority among all countries. The question is whether you will make it.’
“I think Hoekstra is still too little aware of all the legal pitfalls of such a court.”
Knoops thinks that Zelenski is therefore referring to a regional court, with the support of various European countries. “This will mean that the powers of such a court are much more limited.” For example, President Putin enjoys immunity as long as he is Russia’s head of state. “You can only take it away with a tribunal based on the United Nations Security Council.”
ICC encounters problems
Having Russia prosecuted by the International Criminal Court (ICC) in The Hague is still one option, but that too runs into problems. “The ICC has a rule that can break Putin’s state immunity, but that rule is controversial in international criminal law because the ICC is not a UN body.”
Also, there are only 24 countries in the world that recognize the ICC. “These countries are obliged to cooperate in the execution of an arrest warrant issued by the International Criminal Court, but the question is whether these countries will actually implement it.”
More often than not, ICC members did not cooperate in the extradition of suspects. Knoops: ‘I don’t think countries will do that easily even with Putin. A trial against Putin is therefore not realistic.’ Russia does not recognize the International Criminal Court in The Hague, nor does Ukraine.
Furthermore, the ICC only deals with specific war crimes and therefore cannot convict Russia of starting the war. That is why Zelensky is looking for a special court outside the ICC.
Constitution
The Russian constitution also contains objections to prosecuting Putin. “Besides Putin’s immunity as head of state, Russian citizens cannot be extradited abroad under the Russian constitution,” Knoops says. “Russians have the right to be tried in Russia and not abroad.”
The International Criminal Court is already investigating war crimes in Ukraine. According to Knoops, war crimes are not as clear-cut as it sometimes seems. “A citizen who takes up a weapon and goes on the offensive loses his citizenship at that moment. If a soldier then shoots that civilian, the question is whether that person committed a war crime. This has to be looked at on a case by case basis which is time consuming. This is a very complex investigation with thousands of incidents being investigated.’