Franco Fiumara holds doctoral degrees in Legal Sciences and in Political Sciences. He is a judge in the Criminal Court of La Matanza (Buenos Aires) and is a researcher and lecturer in Criminal Procedure, Human Rights, and Public International Law at the UNLaM (Argentina) and UNG (Paraguay).
We spoke about his proposal for the creation of a Special Tribunal to try war crimes committed by Russia in Ukraine.
The International Criminal Court (ICC) is investigating Vladimir Putin’s responsibility for the perpetration of war crimes, for the illegal deportation of children from Ukraine to Russia.
The ICC has focused on the issue of the abduction of Ukrainian children, who were taken to Russia and handed over to Russian families. For that reason, it issued an arrest warrant against the president of the Russian Federation. The problem is that the ICC can collect all the evidence, but then it has to be seen how he is tried and by whom, because the ICC cannot hold a trial in absentia if they fail to arrest him. And it seems impossible to execute the arrest warrant, because none of Putin’s allies are going to hand him over. In addition, Russia has not acceded to the Rome Statute, which would be another technical problem to be solved.
Your proposal addresses that problem?
Yes, it does, by using the Ukrainian criminal code and holding a trial in absentia—as was done at the time with the judicial process following the Beirut bombing on 14 February 2005, in which the former prime minister of Lebanon, Rafiq Hariri, and 22 other people were assassinated. That is the alternative I propose, an ad hoc international criminal tribunal composed of Ukrainian judges and those from other countries, so that the massacres and the thousands and thousands of crimes committed by the Kremlin do not go unpunished, and to provide an immediate reparation response to all the victims. This would make it possible to unfreeze seized Russian funds, which is the concern of Switzerland and other states, and give them as compensation to Ukraine. That is the original idea.
How much do these funds amount to?
There is approximately €400 billion blocked, which were Russian deposits in banks in different countries. These funds could be given to Ukraine as financial compensation for war crimes committed by Russian government officials through a condemnatory judgement issued by the proposed ad hoc international criminal court—or even, through such a judgement, a claim for global reparation before the International Court of Justice in The Hague. It is clear that such an economic injection would be a great boon for Ukraine, especially considering that EU aid in one year amounts to €50 billion.
What crimes could Vladimir Putin be charged with?
Certainly war crimes and the facts of genocide: i.e., a systematic plan directed by the Russian government to wipe out Ukraine as a nation. There are also proven crimes against humanity in Bucha, Irpin, and elsewhere; and, finally, carrying out a war of aggression, which was criminalised at the Kampala conference in the past decade. It is an offence that is pertinent here because Russia used its armed forces and invaded a sovereign state, violating its territorial integrity and Ukraine’s political independence, and carried out a territorial annexation by the use of force. Therefore, all four criminal offences under the Rome Statute could be applied here. On the other hand, the German Federal Public Prosecutor’s Office, together with European and Ukrainian agencies, has established the systematic use of rape as a weapon of war by Russian troops and para-state mercenary groups answering to Putin (Wagner Group). There is an obvious parallel between Putin and Stalin, including on the issue of population displacement, as happened in Crimea, where 800,000 Russians (constituting a third of the population) were implanted in order to “Russify” the territory.
Is the crime of “war of aggression” similar to the crime of “crimes against peace” that applied after the Second World War?
In essence, yes, that is what was stipulated in the statute of the Nuremberg tribunal, ratified by UNGA resolution 95 as a principle of international law. But the review conference on the Rome Statute, held in Kampala in 2010, defined the act as a crime of aggression. This statute came into force in 2018 with the ratification of several countries, so it could also apply against Russia for its invasion in 2022, even though Russia is not a signatory to the Rome Statute.
Could a Ukrainian court initiate this procedure on its own, or does it depend on The Hague?
Ukraine needs help to be able to conduct this trial. They have the entire judiciary working around the clock and issue arrest warrants for Interpol, but they do not have the capacity to seize the funds. In the Hariri case, the Lebanese side asked the UN to set up a special mixed tribunal between Lebanese and international judges. The tribunal was presided over by an Englishman, and in this way they convicted members of Hezbollah using international treaties in addition to the Lebanese criminal and procedural codes. That is what Ukraine can do, but it can hardly do it with the UN, because of Russia’s veto power in the Security Council. This can be achieved with a firm decision by the European Union, which is in a position to create a tribunal mirroring the special tribunal in Lebanon. We are talking about a war on European territory. The EU has to get involved, create a special European tribunal to carry out this procedure, and establish a tribunal presided over by Ukrainian, European, or other judges.
Is anyone willing to initiate such a procedure?
Boris Johnson was the first to launch the idea of a “Nuremberg for Putin and his henchmen,” and many international and Ukrainian jurists believe that this is the only alternative. Logically, this process requires strong political support at the international level, especially given the difficulty of arresting Vladimir Putin, and the fact that many countries do not respect international law.
We see that several states are now reluctant to support Ukraine indefinitely, so this procedure, in addition to providing justice, would be a way of obtaining truly significant economic reparations.
How long would it take to bring this trial to a conclusion?
Unfortunately, too much time has already been lost. With the large amount of evidence collected and with the urgency due to the war’s ongoing course, we could imagine that it would take about two years.
How do you see Javier Milei’s turnaround in Argentina’s international policy: not joining the BRICS, and supporting an Ibero-American summit in support of Ukraine?
What Milei has done is a radical change in Argentina’s foreign policy—a positive change. Not joining the BRICS means, above all, separating itself from the unpresentable Puebla Group—which measures human rights victims with double standards, as well as being allied with Russia—that is why the summit is also very important. Milei has also singled out Hamas as a terrorist group, and he supports Israel’s right of defence. Putin and Hamas share a modus operandi in the way they wage war, because they both seek the total demise of Ukraine and Israel.
