Since the UN and ICC are doing nothing, Novorossiya must create its own international tribunal to try war crimes suspects
Dr. Jonathan Levy is an attorney member of the International Criminal Bar and holds a PhD in Political Science. This is a shorter version of an article which appeared at the Centre for Research on Globalization
Since international justice will not help it, Novorossiya set up a War Crimes Tribunal to try war criminals itself.
Before the brilliant tactical victory by the Novorossiya self defence forces that broke the blockade of Dontesk and Lugansk in late August 2014, it appeared as if the entire command and political infrastructure of Novorossiya might be in real danger of liquidation, summary arrest or exile if Ukrainian forces and their foreign mercenaries stormed Donetsk and Lugansk. The very real scenario of another unfair UN sponsored tribunal like the ICTY (International Criminal Tribunal for Yugoslavia) which mainly persecuted Serbs for defending themselves was looming large in the vent Ukraine prevailed.
Nonetheless, a war crimes tribunal is an important weapon against fascism. Fascists thrive in dark places and times and hide their identities behind masks and hoods; the threat of exposure their identities and deeds scares them greatly.
Novorossiya itself as a sovereign state must seize the initiative. Just as Novorossiya and only Novorossiya defended itself from Kiev, it is only Novorossiya that can move forward with a war crimes tribunal. Evidence and testimony has been already been collected and it is abundant. Many of the perpetrators both high and low are known and the rest will be discovered. The enablers, propagandists and funders of genocide outside Ukraine are also numbered and known for the most part. There is no lack of allegations or suspects. What is lacking is the mechanism to bring them to justice.
Novorossiya can act against war criminals and not just symbolically. Section 107 of the Restatement (Second) of Foreign Relations Law of the United States  states that:
An entity not recognized as a state but meeting the requirements for recognition specified in § 100 [of controlling a territory and population and engaging in foreign relations], or an entity recognized as a state whose regime is not recognized as its government, has the rights of a state under international law in relation to a non-recognizing state…
Article 74 of the Vienna Convention on the Law of Treaties states that “The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States.”
What all this means is that under international law Novorossiya may avail itself of all the remedies under international law as long as some other states concur.
Why not turn the evidence over to a friendly country like Russia? That also creates a problem. Sanctions will flow like wine at a wedding and any results denied and discredited by a thousand naysayers in the Western press.
Novorossiya as a sovereign state may file cases with international tribunals. However, it is blocked from membership in the major international organizations and the existing tribunals seem heavily prejudiced against Novorossiya.
Novorossiya therefore must set up its own International Tribunal and give it independence to act in lieu of the UN, ICC, and Council of Europe. This bold act will result in recognition of the tribunal even when states may still shy away from recognizing Novorossiya itself. Progressive states will recognize the tribunal and its power to seize property and extradite criminals. Perhaps a third party country host can be found too. International participation and support will give the proposed tribunal substance even as the UN and ICC have failed the people of Donetsk and Lugansk.