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Special Tribunal for the Crime of Aggression against Ukraine

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Special Tribunal for the Crime of Aggression against Ukraine
Спеціальний трибунал за злочин агресії проти України (Ukrainian)
Established2025
Authorised byAgreement between Ukraine and CoE on the Establishment of the Special Tribunal for the Crime of Aggression against Ukraine
President[1]
Currently[to be determined]
Prosecutor[1]
Currently[to be determined]

The Special Tribunal for the Crime of Aggression against Ukraine (French: Tribunal spécial pour le crime d'agression contre l'Ukraine) is an ad hoc international criminal tribunal aimed at prosecuting individuals responsible for the Russian invasions of Ukraine under the legal concept of crimes of aggression, as a complement to the existing International Criminal Court investigation in Ukraine.[1][2] The Tribunal was created on 25 June 2025 by an agreement between the Council of Europe and Ukraine,[1][3] signed by the two parties in Strasbourg.[4]

Creation

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In 2022 and 2023, several international bodies announced their support for establishing a tribunal for prosecuting the crime of aggression against Ukraine, including the Council of Europe,[5] the European Commission,[6] the NATO Parliamentary Assembly[7] and the European Parliament.[2]

Proposals

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In April 2022 the Parliamentary Assembly of the Council of Europe (PACE) called for an ad hoc international criminal tribunal.[8] In September 2022, the Council of Europe proposed to create a tribunal that would have a mandate to "investigate and prosecute the crime of aggression" committed by "the political and military leadership of the Russian Federation."[5] Under the Council of Europe's proposal, the tribunal should be located in Strasbourg, "apply the definition of the crime of aggression" established in customary international law and "have the power to issue international arrest warrants and not be limited by State immunity or the immunity of heads of State and government and other State officials."[5]

The government of Ukraine called for the establishment of such a tribunal.[9][10]

In November 2022 the NATO Parliamentary Assembly designated the Russian Federation as a terrorist organization and called upon the international community to "take collective action towards the establishment of an international tribunal to prosecute the crime of aggression committed by Russia with its war against Ukraine."[7][11] The European Commission said that the European Union (EU) would work to establish an ad hoc criminal tribunal to investigate and prosecute Russia's crime of aggression.[6][12][13][14][15][16][17][18][19] In the same month the European Parliament also designated Russia as a state sponsor of terrorism, citing attacks against civilians, war crimes, and atrocities.[20]

On 19 January 2023, the European Parliament called for the creation of an international tribunal to carry out investigations and prosecutions for Russian and Belarusian responsibility for the crime of aggression, complementary to the International Criminal Court investigation in Ukraine. The vote passed with 472 votes in favour, 19 against and 33 abstentions.[2]

Core group

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In late February 2023, Ukrainian foreign minister Dmytro Kuleba stated that a "core group" for creating the tribunal existed, including representation from Guatemala.[21] In March 2025, the core group held its fourteenth and final meeting, finishing the technical preparation of drafts of three documents: a bilateral agreement between Ukraine and the Council of Europe (CoE) to establish the tribunal; the tribunal's statutes; and a management document.[22] Hosting of the tribunal was likely to be in The Hague. It was expected that trials in absentia for prosecuting Russian leaders while they remained in office would be excluded. Planned formalisation of the agreements was scheduled for signing by Ukrainian authorities on 9 May 2025, to be followed by a vote by the Parliamentary Assembly of the Council of Europe (PACE).[23]

International Centre for the Prosecution of the Crime of Aggression

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Following European Union (EU) supported negotiations in March 2023, and given that neither Ukraine nor Russia had ratified the 2010 ICC Kampala Amendments to the Rome Statute that added the crime of aggression alongside war crimes, crimes against humanity and genocide to ICC jurisdiction,[24] the International Centre for the Prosecution of the Crime of Aggression (ICPA) was created in July 2023 by Eurojust to gather evidence and coordinate judicial actions related to the Russian invasion of Ukraine as a crime of aggression. The creation of the centre was seen as a first step towards creating a tribunal.[25] Aims of the ICPA would include supporting exchange of evidence and coordination of investigative and prosecutorial strategies. A European Union (EU) joint investigation team including Ukrainian, Lithuanian, Latvia, Estonian, Polish and Romanian representatives participated in establishing the ICPA.[26]

The creation of the ICPA was the first institutional action to investigate a specific crime of aggression since World War II. The International Criminal Court (ICC) jurisdiction for crimes of aggression became effective in 2018. As of 2023, the ICC was not authorised to investigate the invasion of Ukraine as a crime of aggression. The ICC declared its willingness to support and cooperate with the ICPA.[25]

May/June 2025

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On 9 May 2025, representatives of 35 states and the Council of Europe (CoE) met in Lviv and, with support from head of EU foreign policy Kaja Kallas and EU Commissioner Michael McGrath, agreed to proceed with creating the proposed tribunal, stating that legal instruments were technically complete. A followup meeting on 13–14 May in Luxembourg by the Committee of Ministers of the Council of Europe was scheduled for further formal steps in creating the tribunal.[27]

On 25 June 2025, the Tribunal was formally created by a formal legal agreement between the CoE and Ukraine,[1][3] with an annexe defining the statute of the Tribunal.[28]

Statute of the Tribunal

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Like the International Criminal Court, the Tribunal guarantees fundamental procedural safeguards, including the right to a fair trial, the right not to be tried twice for the same conduct), the presumption of innocence, and the right to remain silent.[28]: Art. 16–19 

The Tribunal has jurisdiction to prosecute individuals bearing the greatest responsibility for the crime of aggression committed against Ukraine, applying its own Statute, the Rules of Procedure and Evidence, relevant international treaties, customary international law and, where necessary, the criminal law of Ukraine.[28]: Art. 1–3 

Organisation of the Tribunal

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The Special Tribunal consists of three main organs: the Chambers, the Office of the Prosecutor, and the Registry.[28]: Art. 6 

Chambers

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The Chambers are composed of:

  • One judge acting as the Pre-Trial Judge, who reviews the indictment and can issue orders and warrants.[28]: Art. 7(1)(a), Art. 25 
  • Three judges sitting in the Trial Chamber, who conduct the trial, rule on the evidence, and render judgments and sentences.[28]: Art. 7(1)(b), Art. 26 
  • Five judges in the Appeals Chamber, who decide on appeals against convictions, acquittals or sentences.[28]: Art. 7(1)(c), Art. 40–42 

Judges are elected to a roster of 15 for staggered nine-year terms. They must be of high moral character and fully independent. No two judges may be nationals of the same State.[28]: Art. 8 

The President of the Tribunal is elected by the judges for a renewable three-year term and presides over the Appeals Chamber.[28]: Art. 7(4–5)  The Pre-Trial Judge, unlike the ICC’s Pre-Trial Chamber of three judges,[29] resembles the single judge formation used by the European Court of Human Rights for filtering admissibility.

Office of the Prosecutor

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The Office of the Prosecutor is an independent organ of the Tribunal, responsible for conducting impartial investigations and prosecutions of those who bear the greatest responsibility for the crime of aggression against Ukraine.[28]: Art. 9(1) 

The Prosecutor must be a person of high moral character, demonstrating the highest level of professional competence, with substantial experience in conducting complex investigations and prosecutions of serious criminal cases.[28]: Art. 10(1) 

The Prosecutor is assisted by at least one Deputy Prosecutor and other staff as necessary to perform duties effectively and efficiently.[28]: Art. 9(2)  Both the Prosecutor and Deputy Prosecutors are elected by secret ballot by an absolute majority of the Management Committee members, based on a shortlist prepared by an independent advisory panel.[28]: Art. 10(2–4) 

The Prosecutor and Deputies cannot seek or receive instructions from any government or authority, and may not engage in any other professional occupation while in office.[28]: Art. 9(1) 

To ensure impartiality, any person investigated or prosecuted can request the disqualification of the Prosecutor or Deputy Prosecutors on grounds of conflict of interest or lack of independence; such requests are decided by the Appeals Chamber.[28]: Art. 10(5–6) 

Registry

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The Registry is the principal administrative organ of the Tribunal and is responsible for its overall administration and servicing.[28]: Art. 11(1) 

The Registry is headed by the Registrar, who must be a person of high moral character with extensive experience in managing international criminal justice institutions.[28]: Art. 12(1)  The Registrar is elected by the judges sitting in plenary session and formally appointed by the Secretary General of the Council of Europe for a renewable four-year term.[28]: Art. 12(2) 

The Registry includes several specialised units:

  • A Victims and Witnesses Unit, which provides protective measures, security arrangements, counselling, and other assistance for witnesses and victims who are at risk due to their testimony. It also organises collective representation of victims before the Tribunal.[28]: Art. 11(3)(a) 
  • A Detention Unit, which manages the conditions of detention of suspects and accused persons.[28]: Art. 11(3)(b) 
  • An independent Defence Unit, which upholds the rights of the defence by maintaining a list of defence counsel, providing legal research, evidence collection support, advice, and appearing before the Tribunal on specific issues if needed.[28]: Art. 11(3)(c) 

The Registrar acts as the official channel of communication of the Tribunal with States and other entities (except where the Prosecutor has direct channels of communication under the Statute).[28]: Art. 11(4)  The Registrar may also coordinate with national authorities to take custody of accused persons and is responsible for internal security at the Tribunal’s premises in consultation with the President, Prosecutor, and the host State.[28]: Art. 11(5–6) 

Appointments to the Registry’s staff must ensure geographical balance, gender representation, and high professional competence.[28]: Art. 13 

Working Language and Rules of Procedure

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The working language of the Tribunal is English.[28]: Art. 14(1)  The Rules of Procedure and Evidence may authorise the use of other languages in specific circumstances, in line with the Council of Europe’s official languages[28]: Art. 14(1)  (which are English and French).

The Rules of Procedure and Evidence govern the conduct of investigations, pre-trial, trial and appeal phases, admission of evidence, victim representation, witness protection, data protection, and cooperation with other international bodies.[28]: Art. 15(1)  They are adopted by the judges in plenary session by a two-thirds majority, and must meet the highest standards of international criminal procedure to ensure fair and expeditious proceedings.[28]: Art. 15(1)  Amendments can be proposed by States parties, judges, the Prosecutor, or the Registrar, and follow the same adoption procedure.[28]: Art. 15(2–4)  In case of conflict, the Statute prevails over the Rules.[28]: Art. 15(5) 

Prosecutions

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The Pre-Trial Judge examines the indictment prepared by the Prosecutor. If satisfied that there is sufficient evidence to provide reasonable grounds to believe that a person committed the alleged crime, the indictment is confirmed.[28]: Art. 25(2) 

If confirmed, the Pre-Trial Judge may issue orders and warrants for arrest, detention, surrender or transfer of the suspect.[28]: Art. 25(3) 

Although functional immunity does not apply to heads of State or government officials,[28]: Art. 23(4)  if the indictment concerns a sitting Head of State, Head of Government or Minister of Foreign Affairs, the proceedings are suspended until they no longer hold office or an appropriate waiver is granted.[28]: Art. 23(5), Art. 25(2) 

The Tribunal may conduct trials in absentia if the accused fails to appear after due notification. If convicted in absentia, the person has the right to a retrial if later present in person.[28]: Art. 28 

Penalties and enforcement

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The Tribunal may impose prison sentences of up to 30 years, or exceptionally a life sentence if justified by the extreme gravity of the crime and the individual circumstances. Fines and confiscation of assets can be ordered in addition to imprisonment.[28]: Art. 36  This is consistent with Rome Statute standards for penalties.[30]

Enforcement of sentences takes place in States that have concluded agreements with the Tribunal, or in Ukraine if no agreement exists. Sentences cannot be enforced in the host State.[28]: Art. 49 

Analysis

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In 2023, some international lawyers criticized the proposed tribunal. Kevin Jon Heller stated practical concerns, including obtaining suspects and evidence, predicted that the tribunal would not necessarily "be able to prosecute Russian officials who would be entitled to immunity ratione personae", and expressed worries about the "selectivity of international criminal justice" that it would express.[31] Sergey Vasiliev argued that an ad hoc tribunal would be unable to secure the presence of Putin or other defendants in the absence of Russian cooperation.[32]

In contrast, Carrie McDougall argued that an ad hoc tribunal was the best available option to try this particular crime of aggression for which the International Criminal Court lacks jurisdiction.[33]

The idea is also supported by Evhen Tsybulenko and Henna Rinta-Pollari, who stated: "...the most appropriate approach to prosecuting the crime in the context of the Russo-Ukrainian war is to establish an international ad hoc tribunal, either through a treaty signed by the United Nations and Ukraine on the basis of a referral from the United Nations General Assembly and the United Nations Secretary-General or a multilateral treaty between Ukraine and other states supported by the United Nations".[34]

See also

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References

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  1. ^ a b c d e Committee of Ministers of the Council of Europe (24 June 2025), CM(2025)104-final - [1532/2.3] Consequences of the aggression of the Russian Federation against Ukraine - Agreement between the Council of Europe and Ukraine on the Establishment of the Special Tribunal for the Crime of Aggression against Ukraine, Wikidata Q135091402, archived from the original on 26 June 2025
  2. ^ a b c "Ukraine war: MEPs push for special tribunal to punish Russian crimes". European Parliament. 2023-01-19. Archived from the original on 2023-01-19. Retrieved 2023-01-19.
  3. ^ a b Ukraine and the Council of Europe sign Agreement on establishing a Special Tribunal for the Crime of Aggression against Ukraine, Council of Europe, 25 June 2025, Wikidata Q135091551, archived from the original on 26 June 2025
  4. ^ "Ukraine, European rights body sign accord for tribunal on Russian aggression". Reuters.com. 26 June 2025. Archived from the original on 2025-06-26. Retrieved 26 June 2025.
  5. ^ a b c "PACE calls for an ad hoc international criminal tribunal to hold to account perpetrators of the crime of aggression against Ukraine". Council of Europe. Retrieved 17 September 2022.
  6. ^ a b "Statement by President von der Leyen on Russian accountability and the use of Russian frozen assets". European Commission. Retrieved 1 December 2022.
  7. ^ a b "Resolution 479" (PDF). NATO PA.
  8. ^ "PACE calls for the setting up of an ad hoc international criminal tribunal to hold to account perpetrators of the crime of aggression against Ukraine". Retrieved 27 January 2023.
  9. ^ "Ukraine calls for international tribunal to bring Putin to justice more quickly". The Guardian. Retrieved 17 September 2022.
  10. ^ "President Zelensky: We are doing everything to create Special Tribunal for Russian crimes". www.ukrinform.net. 30 November 2022.
  11. ^ "NATO Parliamentary Assembly designates Russia as a terrorist state, calls for Tribunal". Euromaidan Press. November 21, 2022.
  12. ^ "Ukraine: Commission presents options to make sure that Russia pays for its crimes". European Commission. Retrieved 1 December 2022.
  13. ^ "Von Der Leyen Proposes Russian War Crimes Tribunal, Plan To Confiscate Frozen Russian Assets". Radio Free Europe/Radio Liberty.
  14. ^ "EU proposes setting up specialized court to try Russian war crimes". November 30, 2022.
  15. ^ "EU seeks specialized court to investigate Russia war crimes". AP NEWS. November 30, 2022.
  16. ^ "EU Explores New Steps to Probe Russian Crimes, Use Frozen Assets". Bloomberg.com. Bloomberg. 30 November 2022. Retrieved 1 December 2022.
  17. ^ Olson, Carly; Surman, Matt (November 30, 2022). "Russia-Ukraine War: Top E.U. Official Calls for Tribunal for War Crimes in Ukraine". The New York Times – via NYTimes.com.
  18. ^ E.U. proposes special tribunal to investigate Russian crimes in Ukraine
  19. ^ Carbonaro, Giulia (November 30, 2022). "EU special tribunal on Russia an 'important move' to show Ukraine". euronews.
  20. ^ "European Parliament declares Russia to be a state sponsor of terrorism". European Parliament. 23 November 2022. Retrieved 25 November 2022.
  21. ^ "Minister: Guatemala to join Core Group on Special Tribunal for Russian crime of aggression". The Kyiv Independent. 25 February 2023. Wikidata Q116899556.
  22. ^ Special Tribunal for Ukraine: Secretary General welcomes completion of technical discussions, Council of Europe, 21 March 2025, Wikidata Q133860991, archived from the original on 12 April 2025
  23. ^ Jorge Liboreiro (10 April 2025). "Exclusive: Vladimir Putin won't be tried for war crimes in absentia while president". Euronews. Wikidata Q133860922. Archived from the original on 12 April 2025.
  24. ^ "New Tribunal Announced to Prosecute Russian Crime of Aggression in Ukraine". 8 March 2023. Retrieved 14 March 2023.
  25. ^ a b The ICPA, new kid on the block in the world capital of international justice, Fondation Hirondelle, 7 July 2023, Wikidata Q133860053, archived from the original on 12 April 2025
  26. ^ The International Centre For The Crime Of Aggression Against Ukraine Starts Operations In The Hague, Forbes, 3 July 2023, Wikidata Q133859644, archived from the original on 12 April 2025
  27. ^ Tim Zadorozhnyy (9 May 2025). "European ministers approve special tribunal to prosecute Russia's aggression against Ukraine". The Kyiv Independent. Wikidata Q134431290. Archived from the original on 9 May 2025.
  28. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af ag ah ai aj ak CM(2025)103-final - [1532/2.3] Consequences of the aggression of the Russian Federation against Ukraine - Statute of the Special Tribunal for the Crime of Aggression against Ukraine, Council of Europe, 25 June 2025, Wikidata Q135092231, archived from the original on 26 June 2025
  29. ^ Article 39 of the Rome Statute
  30. ^ Article 77 of the Rome Statute
  31. ^ "Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea". Opinio Juris (blog). 2022-03-07. Retrieved 2023-05-09.
  32. ^ Vasiliev, Sergey (2022-03-03). "Aggression against Ukraine: Avenues for Accountability for Core Crimes". EJIL: Talk!. Retrieved 2023-05-09.
  33. ^ "Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics". Opinio Juris (blog). 2022-03-15. Retrieved 2023-05-09.
  34. ^ Tsybulenko, Evhen; Rinta-Pollari, Henna (2023), "Legal Challenges in Prosecuting the Crime of Aggression in the Russo-Ukrainian War", Review of Central and East European Law, 48 (3–4): 319–350, doi:10.1163/15730352-bja10087, retrieved 25 January 2024
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