The European path to the Special Tribunal

Hier geht es zur deutschen Version des Artikels.

„When Russia chose to roll its tanks over Ukraine’s borders, breaking the UN Charter, it committed one of the gravest violations: the Crime of Aggression. Now, justice is coming. Justice for Ukraine. We have laid down the legal foundations for a Special Tribunal.“ This was announced by President of the European Commission Ursula von der Leyen in February.   

Three years have passed since this important step in International Law was taken. Due to the International Criminal Court’s (ICC) lack of Jurisdiction, calls for a special tribunal emerged early on and various models were discussed. Ultimately, the European solution prevailed – a model involving the Council of Europe, the guardian of human rights, democracy and the rule of law. The Council of Europe is an international organisation based in Strasbourg which consists of all 46 European states. Russia is the only exception having been excluded shortly after the war of aggression against Ukraine began.   

At its annual meeting on 14 May 2025, the Committee of Ministers, as the highest decision-making body, instructed Secretary-General Alain Berset to initiate the process of establishing a special tribunal. This ends the protracted political wrangling over a criminal investigation into the crime of aggression. The decision has been made: A special tribunal will be established. 

The ‚Core Group‘ of supporting states 

The Core Group set up in 2023 to establish a Special Tribunal for the crime of aggression against Ukraine played a decisive role. It brings together high-ranking legal experts from almost 40 countries. In addition to EU members, the supporting states include Australia, Costa Rica, the UK, Guatemala, Liechtenstein, Norway and Switzerland. Following the change in government at the beginning of the year, the USA withdrew from the circle of supporters. 

The core group worked closely with the Ukrainian authorities, the European Commission, the European External Action Service and the Council of Europe. Its aim was to develop the most viable model under international law for a tribunal to hold the Russian leadership criminally accountable for the crime of aggression. This goal has now been achieved: the legal basis for the establishment of a Special Tribunal has been created. 

The 14th and final meeting took place in Strasbourg in March. At the end of its work, the group of experts presented three key documents that have not yet been made public. First, a draft bilateral agreement between Ukraine and the Council of Europe was drawn up. The core of the content is the so-called Schumann Statute, which contains the basic regulations on the functioning and organisation of the Special Tribunal. In addition, supplementary provisions were formulated concerning the modalities third-country support, its financing and other administrative aspects. 

International treaty between the Council of Europe and Ukraine 

In order to bring the Special Tribunal into effect, an international treaty must be concluded between Ukraine and the Council of Europe. The founding treaties do not explicitly address the question of whether the Council of Europe can conclude such an agreement. However, under Article 1 sentence 1 of the General Convention on the Privileges and Immunities of the Council of Europe, the Council of Europe has its own legal personality and is authorised – as it has been in the past – to conclude international treaties.  While the founding treaties do not expressly provide for the creation of a special tribunal, this is derived from the broad mandate of Article 1(b) of the Statute of the Council of Europe: the “protection and development of human rights and fundamental freedoms.” 

The legal work within the Council of Europe should be completed soon, so that the agreement between the Council of Europe and Ukraine could be finalised shortly. The Netherlands had signalled its willingness to host the special tribunal in The Hague at an early stage. In addition, it will be crucial that the states in the core group agree as quickly as possible to provide the necessary funding for the establishment of the court. It would be highly desirable if, in addition to the core group, other states from around the world decided to support the Tribunal. 

Tribunal with Ukrainian and international elements 

A hybrid construct is planned: a court that will apply Ukrainian law but consist of 15 international judges. It is therefore not a classic international court, but a tribunal that combines Ukrainian and international elements – a so-called hybrid tribunal. 

The prosecution of those responsible for the crime of aggression against Ukraine is possible under Ukrainian law. Even before the war began, Article 437 of the Ukrainian Criminal Code had criminalised the act of aggression. The Special Tribunal will also derive its jurisdiction from Ukrainian law. In other words: Ukraine will transfer to the Council of Europe the power to prosecute the crime of aggression. 

Can Putin, Lavrov and Mishustin invoke immunity? 

 A central issue of international law has significantly delayed the negotiations on the establishment of the Special Tribunal: the personal immunity of the three highest-ranking Russian officials – President Vladimir Putin, Prime Minister Mikhail Mishustin and Foreign Minister Sergei Lavrov. Under current international law, heads of state cannot, in principle, be subjected to the jurisdiction of another state for acts committed in the course of their official duties. The situation differs before certain international criminal courts. 

Some argue that a special European tribunal could override this immunity. It is argued that the overwhelming majority of Council of Europe members criminalise acts of aggression and that a „regional immunity exception“ for the crime of aggression appears to be developing in Europe. 

Prof Claus Kreß from the University of Cologne came to a different conclusion in his statement at the public hearing in the Bundestag: „The fact that the main suspect, President Putin, would enjoy immunity before a hybrid, essentially Ukrainian court according to the current state of international jurisdiction is particularly striking“. 

Putin can be charged, but only convicted after his term in office 

A compromise has now been reached that essentially provides for the personal immunity of the troika. Although the Russian president can be charged, he cannot be convicted while in office. An arrest warrant could also only be issued against him after he has left office. 

However, there is to be no functional immunity before the tribunal. Other Russian political and military officials could therefore be held criminally liable before the special tribunal in the same way as Putin, Mishustin and Lavrov after leaving office. 

Meanwhile, the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) is already collecting evidence. The Centre began its work in The Hague in the summer of 2023 and consists of selected prosecutors from various nations. 

The preparatory work that underway should pay off as soon as the special tribunal is operational, and Ukraine refers the relevant facts to the tribunal for investigation. 

Important signal to strengthen the ban on violence 

In part, the European approach was, from the outset, seen as an appropriate response International legal response to a war of aggression waged by one (then) member of the Council of Europe against another. Moreover, it must be taken into account that states outside Europe can also join this initiative. 

Regardless of whether a universal tribunal would have been the better solution, the establishment of the special tribunal is an important signal against aggression and in favour of strengthening the prohibition of violence. Nevertheless, the root of the problem must also be tackled: the existing jurisdictional gap in the ICC Statute should be closed, as had been called for early in the debate on the Special Tribunal. 

This text is a translated and slightly revised version of the article published in German on May 19, 2025.

Dr Franziska Rinke is a policy advisor at the department of Analysis and Consulting at the Konrad-Adenauer-Stiftung e.V. (KAS).   

Zitiervorschlag

Russia’s war of aggression against Ukraine:

. In: Legal Tribune Online,
27.05.2025
, https://www.lto.de/persistent/a_id/57284 (abgerufen am:
28.05.2025
)

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