Ukrainian soldier. Yauhen/AdobeStock.com

In May, the Council of Europe and Ukraine formally endorsed the creation of a special tribunal for the crime of aggression against the latter. This development marks a major milestone in Ukraine’s fight for accountability in the wake of Russia’s full-scale invasion in 2022 and has the support of at least 37 other countries.

The tribunal was first mooted in the early stages of the war, but debate concerning several aspects – from where the court should be located to whether Russian President Vladimir Putin and other Kremlin leaders should be granted immunity – stalled progress until now. 

A core group of senior international legal experts has now finalised the statutory documents for the tribunal and Ukraine has submitted them to the Council of Europe for formal adoption. 

Mark Ellis, Executive Director of the International Bar Association, echoes these sentiments, saying the tribunal will act as a ‘benchmark’ for international justice in years to come. ‘The fact that the Council of Europe has been leading on this is significant,’ he says. ‘And the fact that the special tribunal will be open to other countries will set an important standard now that this crime matters deeply to the international community, and for that matter, for the future of international law.’

The development has been welcomed by the wider international legal community, which has grown frustrated with the lack of avenues available to hold Russia’s top leadership to account for allegations of crimes committed in Ukraine. In 2023, the International Criminal Court (ICC) issued an arrest warrant against President Putin in respect of allegations he oversaw the illegal deportation of hundreds of Ukrainian children to Russia. The Kremlin denies these claims and allegations of war crimes in respect of Ukraine. 

However, the ICC can’t specifically address the crime of aggression in the context of the war in Ukraine because Russia isn’t a state party and Ukraine wasn’t a full member at the time of the invasion. Ukraine has recognised the ICC’s jurisdiction over crimes committed on its territory since November 2013, but only formally ratified the Rome Statute in January.  

Mudra told Global Insight that the special tribunal’s statutory documents are expected to be signed ‘as soon as possible’ in anticipation of launching the tribunal in 2026. Once established, the Ukrainian authorities will be permitted to refer ongoing domestic investigations and prosecutions related to the crime of aggression to the special tribunal’s prosecutor. The special tribunal will be able to pursue proceedings in absentia, in the same way as domestic Ukrainian trials related to the war.

Ellis believes Ukraine’s Prosecutor General’s Office will play a key role in driving the tribunal’s caseload. ‘My sense is that what’s going to happen is that the special tribunal will take its lead from what Ukraine’s Prosecutor’s Office wants,’ he says. ‘The Prosecutor’s Office will give them case files and tell them the individuals that they want them to pursue, so the tribunal will not act on its own – Ukraine will be in the driver’s seat.’  

In December, Ukraine’s Prosecutor General’s Office reported that the Russian military had already committed more than 51,000 crimes and crimes of aggression in Ukraine since the start of the war. 

The European Commission has said that evidence gathered as part of the work carried out within the International Centre for the Prosecution of the Crime of Aggression – a judicial hub hosted by the EU Agency for Criminal Justice Cooperation, Eurojust – will also be transmitted to the special tribunal’s prosecutor. 

Some have lamented that head of state immunity for the so-called troika – the sitting head of state and those currently within the top echelons of government, as well as foreign ministers – has not been removed for the tribunal. This means that troika members could only be tried before the special tribunal if they’re no longer in power or their immunity had been waived.  

‘The crime of aggression, more so than any other serious international crime is a leadership crime,’ says Richard Goldstone, Honorary President of the IBA’s Human Rights Institute and the former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia. ‘President Putin and Foreign Minister Sergey Lavrov should be held to account immediately for allegedly committing that crime and not only after they leave office.’

However, as Ellis concedes, the tribunal was always going to be a product of compromise. ‘It was always known the G7 countries were not eager, nor would they be supportive of eliminating the head of state immunity principle, primarily because they simply don’t want to set a precedent for future scenarios where their own leaders could be targeted under this principle,’ he says. ‘There will be those that will be disappointed in that. I understand that, but the tribunal would not have come to fruition if the head of state immunity principle was abandoned.’

Despite these compromises and the protracted process to establish the tribunal, Mudra says the timing couldn’t be better. ‘Russia’s imperial war of conquest threatens everyone in the world – and if we do not react to it now, it will be a signal that anyone can resurrect empires, redraw borders, conquer neighbours and evade punishment,’ she says. ‘That is why this special tribunal is so important right now – we must bring the perpetrators of this aggression to responsibility.’