Why the EU goes to Kyiv with no deal on how to prosecute war crimes

Good morning. My brilliant colleagues got hold of draft documents showing the EU plans to compete against US green subsidies by easing restrictions on tax credits for climate-friendly businesses. The magic money tree blooms anew.

Today: the EU still has no concrete plan on how to bring Russian war criminals to international justice, and Italy’s rightwing firebrand prime minister is making all the right Team Europe noises.

Passing judgment

For Ukrainian president Volodymyr Zelenskyy there is undoubted symbolic value in holding a summit with the EU on home turf this week.

There may be less value in hearing from Ursula von der Leyen of the European Commission and Charles Michel of the European Council their progress in devising a way to hold individual Russians to account for alleged war crimes, reports Sam Fleming.

Didier Reynders, the European commissioner responsible for justice, told Europe Express yesterday that he is determined to provide “all the necessary tools” to pursue senior Russians for the crime of aggression.

That will entail, among other things, a special prosecution office to help examine possible war crimes, alongside parallel efforts to help investigators gather evidence.

This step comes, however, against a background of high political and legal uncertainty over the forum where any cases will ultimately be decided.

The existing International Criminal Court does not have the power to pursue crimes of aggression in this case, so a new mechanism will need to be set up enabling the lifting of immunities of any accused. Ukraine, for that matter, isn’t even a member of the ICC having not ratified the Rome Statute.

International partners are divided over the merits of two possible models — either a special tribunal or a hybrid one. The special tribunal route would require a UN General Assembly resolution, opening the process up to the vagaries of deliberations among 193 member nations.

A hybrid tribunal would carry its own complexities, including a need to change the Ukrainian constitution. EU ambassadors were split at a meeting last week. Reaching a decision will be key if those giving the orders in Moscow are ever to be brought to justice.

Reynders stressed that even as the debate continues, a huge effort is already under way to collect evidence for any potential future tribunal.

The system, he added, would need to stand firm for years or decades, “because you know that there is no [time] limit for such a kind of crime.” 

Those responsible, he said, “need to know that for the rest of their life there is a risk of being in front of a tribunal if one day the prosecutor has sufficient evidence.”

Chart du jour: Recession alarm

Germany’s economy unexpectedly shrank by 0.2 per cent in the final quarter of 2022, defying more upbeat expectations and putting the continent’s biggest market on the brink of a recession.

Playing nice

Italian prime minister Giorgia Meloni’s much-admired campaign to present herself as a solid, reliable EU partner continued yesterday, as she talked up pan-European co-operation, with little sign of the roaring firebrand tones of her recent past, notes Giuliana Ricozzi.

Context: The September election of Meloni, who rose through Italy’s neo-fascist movement, as the leader of the EU’s third-largest economy had many in Brussels clutching their centrist pearls, particularly given Italy’s precarious economic situation and the need for unity over Europe’s response to the war in Ukraine.

Standing beside EU council president Michel yesterday in Rome, she made a mockery of those fears. Even on her pet topic of migration — reducing it was her key election plank — she hit the right collaborative notes.

“It’s time to work together and prevent illegal flows by stemming them before they reach European borders . . . we believe we can improve European action on repatriation”, Meloni said. “I am glad that there is the awareness that Italy can’t govern this matter alone.”

Michel, at her side, thanked Meloni for her “frank, direct and sincere co-operation” in Europe, praising her “legitimate willingness to defend Italy’s interests” combined with the “willingness to defend Europe’s unity”.

In recent days, Meloni and her ministers visited northern African countries to seek their support in stopping migrants’ departures from African coasts — a policy that has Brussels’ support. But her tour is not over.

In a video posted on social media, she announced that ahead of an EU leaders’ summit next week, she will visit other European capitals “to advocate Italy’s position” and “convince the main countries to help [Italy] move forward” in tackling migration flows.

Meloni’s not softening her policies, but her softer rhetoric is winning over many in Brussels that feared the worst from her premiership. Other outspoken EU troublemakers may want to take note.

What to watch today

1. Turkey foreign minister Mevlüt Çavuşoğlu meets Hungarian prime minister Viktor Orbán in Budapest.

2. Australian foreign minister Penny Wong in Brussels, to meet EEAS leadership.

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