A special tribunal for Putin

Russia committed the first crime of aggression against Ukraine back in 2014 by occupying Crimea, but holding Russia’s high-ranking officials accountable became one of the major priorities for Ukraine’s international policy after Russia’s full-scale invasion.

Russia can veto resolutions in the Security Council of the UN, and the International Criminal Court still doesn’t have jurisdiction to judge for the crime of aggression (plus, Russia called off its signature from the Rome Statute after the annexation of Crimea). So Ukraine and its allies searched for other options to get justice.

In January 2023, the Ukrainian delegation, along with representatives of the European Commission, the Council of Europe and other legal experts, led the first meeting of the Core Group for Establishing a Special Tribunal for the Crime of Aggression against Ukraine within the framework of the Council of Europe.

At the beginning of February 2025, the Core Group held its 13th meeting. The European Commission reported that the participants laid down legal foundations for the establishment of the tribunal and agreed on key elements of the “Schuman draft statute”, the core legal document of the future tribunal. The final meeting is set to happen in March.

Aid 46 paramedics provide first aid to an injured man after a Russian missile strike on the outskirts of Kharkiv, 23 January 2024. Photo: Ivan Samoilov, Gwara Media

While the Council of Europe and Ukrainian officials hoped the tribunal would be established this year, President Donald Trump made a sharp turn in the USA’s views on Ukraine and refused to acknowledge that it was Russia and Russian aggression that started the war in the country. Gwara Media talked to legal experts about the future tribunal and new and old challenges awaiting Ukraine and the Core Group in holding Russia accountable through it.

Tribunal has to be established urgently

American representatives in the UN refused to call Russia an aggressor and, on 24 February, voted against Ukraine’s resolution condemning Moscow’s aggression. Andrii Mikheiev, an international law expert at the International Center for Ukrainian Victory, says that the current American position is not a surprise (e.g. because the USA also withdrew its signature from the Rome Statute of the ICC). Nevertheless, he notes, the matter of establishing a tribunal can become leverage for future negotiations that America will actively utilize — mainly during bilateral talks with Russia.

“It is rather easy to predict that the issue of the tribunal will be brought up at negotiations,” Mikheiev says. “It is not established yet, so this idea could be cheaply and painlessly sold: here, we [i.e. USA] agreeing that the tribunal will not happen, and you [i.e. Russia] yield something else to us.”

It’s a very likely scenario, which is why the most important question of the tribunal’s creation isn’t its statute, or key institutions, or regulations, but the speed [with which it can be established].

Mikheiev says that it is vital to ensure the tribunal exists before it comes up as leverage in negotiations. “A tribunal that has already been established, that has a statute and a known list of judges and participant countries will be very hard to eliminate. It will be almost impossible to force all countries to withdraw their signatures. At the same time, it will very easy to get rid of the tribunal that doesn’t exist yet.”

On 21 February, The Telegraph wrote that during the 13th meeting of the Core Group, American envoys refused to label Russia as an “aggressor”. Without acknowledging aggression, they cannot participate in granting the tribunal jurisdiction to investigate the said aggression. European diplomats told journalists that the loss of the USA would be a “major blow” to the project.

“Ukraine uses the European system of human rights protection, so the representation of [countries] on the European continent matters for us first and foremost,” Oksana Cherviakova, representative of the Ombudsman in Kharkiv Oblast, told Gwara. “But we’d want to involve as many countries as possible because then they’ll accept responsibilities to physically arrest the criminals and transfer them [to the established court].”  Cherviakova stressed that the massive involvement of the Council of Europe and 40 countries is already a signal that “military and political leadership of the aggressor country will be held accountable”.

Russian disinformation

Enabled by the new direction of Washington, Vladimir Putin is slowly emerging from political isolation, while European leaders such as Orbán and Fico want Ukraine to be “a buffer between Russia and the West”, saying Zelenskyy “needs this war”. In view of these developments, lawyers and human rights experts emphasized the importance of speaking out about Russian war crimes more and advocating for holding Moscow accountable.

During the three years of the full-scale invasion, Russia has killed 2,809 people and destroyed over 37,000 residential buildings in the Kharkiv Oblast alone. Tamila Bespala, legal expert of Kharkiv Human Rights Protection Group, says that, in her experience, not all lawyers from other countries “believe that we have a real war, that all crimes that were committed here really have been committed”. Changing this is only possible by shedding more light on the consequences of the Russian aggression, Bespala believes.

Russia systemically lies and denies committing war crimes (or even their existence), using different mediums and different languages. These methods of hybrid war are so effective in Europe because, Oksana Cherviakova notes, “people are not prepared and not protected”.

“In Ukraine, people already have experience [of dealing with misinformation], they live through it and overcome challenges. Europe, being away from the frontline, has news… But the further they are from the frontline, the more credibility news from Russian and other sources have,” says Cherviakova.

Andrii Mikheiv says that to counter the influence of Russian narratives, Europe has to “communicate as much as possible that the tribunal will be created. Communicate that no peace agreements, no compromises, no ceasefire can cancel out the crimes that have already been committed.”

Jurisprudence and justice have to be beyond politics, beyond political compromises and above them. This is why, no matter what, the tribunal has to be created, it has to work, and its work has to lead to sentences. For Europe, it’s important to show its conviction in this matter.

Residential building targeted by a Russian attack on Kharkiv on 26 February 2025 / Photo: Oleksandr Manchenko, Gwara Media

Two sides of Core Group’s confidentiality

Countries helping Ukraine with prisoners of war exchanges or in returning children that Russia had abducted from the occupied territories often don’t want their involvement to be made public. Similarly, few people know which 40 states are included in the Core Group. Confidentiality protects participating envoys.

Tamila Bespala believes that the pressure Russia might put on the countries supporting the tribunal is one of the threats to its future existence. Cerviakova agrees that limited public information about participants and about the contents of the tribunal’s statute is necessary. “The less information those who want to disrupt the process have, the fewer obstacles will exist during creation and voting for [the statute].”

Andrii Mikheiev agrees that the confidentiality of the Core Group makes sense but says there’s a risk: “What countries’ envoys are saying, doing, and what conclusions they’re coming to [at these meetings] has to be known to the leadership of their countries,” Mikheiev stresses. “For instance, if Germany (theoretically) opposes establishing a procedure for criminal proceedings in absentia, it shouldn’t be because one person, one envoy, opposes it. It has to be a thought-out position of the Bundestag, the Ministry of Foreign Affairs, the Ministry of Justice that is conveyed through this envoy.”

Accountability and transparency, established in this way, will make the stances of the participating states predictable and consistent and allow the right focus of diplomatic cooperation to be found, Mikheiev believes.

Immunity under international law

The special tribunal is capable of overcoming the immunity of Russian high-ranking politicians: Vladimir Putin, prime minister Mikhail Mishustin, and the head of Russia’s Foreign Affairs Ministry, Sergei Lavrov. Experts say that the issue of immunity is the most controversial question in the tribunal’s establishment.

First, envoys fear that further regional tribunals will be created by those who want to investigate their countries’ political leadership for the crime of aggression. Secondly, they are anxious about possible ramifications from Russia’s side. Finally, the legitimacy of the future tribunal’s decisions about arresting or detaining political leaders — and any other verdicts — is debatable. Currently, the tribunal’s establishment is supported by only 40 states, which means it doesn’t have proper international coverage, unlike previous ones (e.g. the Statute of Rome, which was ratified by 60 countries).

“While the European Council is a powerful organization, it is regional. Not enough non-European countries support the tribunal,” says Andrii Mikheiev. Another challenge, Mikheiev says, is the lack of consensus over trying the accused in absentia. Because the ICC and past international tribunals generally haven’t had problems with arrest and extradition, in absentia procedures weren’t necessary. “This time,” says Mikheiev, we “won’t see defendants in court”. Without them, he continues, there will be no verdicts, and proceedings will eventually come to a halt.

This matter is important not only for sentencing but also for establishing additional financial obligations for the crime of aggression: “Apart from imprisonment, there has to be confiscation of assets and fines and a founding of the compensation fund for victims of aggression, at least via the ICC model,” argues Mikheiev.

Not enough attention is paid to finding people guilty of the crime of aggression post-mortem [after death]. “Aggression is the supreme crime, the father of all other crimes. It is wrong to simply stop the investigation because the [accused] is dead. There has to be at least a commission’s conclusion, without a full verdict, that, if the [accused] were alive, they would be found guilty. A quasi-verdict of sorts. Then, justice will have been done.”

Currently, the Council of Europe and European Commission keeps the establishment of the Special Tribunal in focus (as does the Ukrainian political leadership). In 2023, the Council of Europe created the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine and is currently developing a mechanism for damage compensation. The General Secretary of CoE, Alain Berset said to European Pravda, a Ukrainian media, that the Council’s ambition is to establish the Tribunal in 2025.

The more ICC orders stop working — Mongolia, for example, accepted Putin’s plane despite having ratified the Rome Statute — and the more acceptable international relations with Russia become, the more hope Ukraine’s society and leaders place in the tribunal’s establishment and restoration of justice.

“International humanitarian law is being violated by the Russian Federation every day. But we still see no consequences for that. The international community has to consider what to do about it. At this level, only agreements and unity in decisions between countries can be productive,” Oksana Cherviakova says.

“Ukraine is demanding new norms for international law with its blood. But what’s clear for Ukraine today – this outrageous unfairness – is taking time for the rest of the world to accept. To admit that existing norms do not work.”