The Council of Europe has started the process of creating a Special Tribunal to try the crime of Russian aggression against Ukraine.
The Council of Europe has started the process of creating a Special Tribunal to try the crime of Russian aggression against Ukraine. © Sergey Guneev - Host Photo Agency via Getty Images

Can the Council of Europe Create A Tribunal for Putin?

Ukrainian human rights defender argues this could be the platform on which the prosecution for the crime of aggression can be built.

Tuesday, 9 July, 2024

The Council of Europe has started the process of creating a Special Tribunal to try the crime of Russian aggression against Ukraine. The 46-member human rights organisation decided in April to formally prepare for an agreement with Ukraine on the establishment of such a court. 

Oleksandra Romantsova, executive director of Ukraine’s Centre for Civil Liberties, told IWPR’s Olga Golovina that although the process was complex, challenging, and would take many years “that shouldn't stop us.... even if Putin doesn't live to see himself on trial, victims of mass crimes and future generations around the world need to know that evil will be punished”. 

Olga Golovina: What does the decision of the Committee of Ministers of the Council of Europe of April 30, 2024 mean for the further process of establishing the tribunal? 

Oleksandra Romantsova: The Committee of Ministers adopted a decision authorising the Secretary General to prepare a package of documents to facilitate consultations within the Core Group, a coalition of 40 states for the creation of the Special Tribunal for the Crime of Aggression against Ukraine. Among the proposed documents are a draft agreement between the Council of Europe and Ukraine on the establishment of the Special Tribunal, a draft statute and an expanded partial agreement that will regulate financial and administrative issues of its activity. 

This is important, first of all, because it is the Council of Europe that will become the platform on which the architecture of the mechanism of prosecution for aggression against Ukraine will be built. 

Secondly, member states still intend to involve other countries in the process, which is why the instrument of extended partial agreements is mentioned. 

Thirdly, along with the desire to demonstrate to the aggressors the inevitability of criminal responsibility, there remains an understanding of the challenges that will arise both before the Special Tribunal and the Council of Europe. 

This is important because these are practical steps, as not many have been done. The Council of Europe does not work with humanitarian law, but with international human rights law. For the Council of Europe, this can be an extension of its practice and its institutional capabilities to a new area. In the Council of Europe, it is difficult to organise a tribunal that would consider cases in absentia and that would overcome the immunity of country leaders. 

In order for there to be a court, in addition to the decision itself, a statute is needed. The sooner we discuss this charter, the nuances of the procedure itself, the more opportunities appear for experts from the Core Group to start developing this charter. The Council of Europe in itself is not an ideal option, but this institution is the most progressive in this regard. 

Oleksandra Romantsova is executive director of Ukraine’s Centre for Civil Liberties. Photo courtesy of O. Romantsova.

What models for the creation of the Special Tribunal are currently under consideration? 

This will depend on the model being signed. However, it can already be said that it will be necessary to select qualified judges and prosecutors. This is a question of budget, a question of specialists - where and how to look for specialists in international humanitarian law who have experience in the tribunals of the former Yugoslavia, Rwanda - and the question of where the tribunal will be held. 

What are the main challenges that may arise in the process of creating the Special Tribunal, and how can they be overcome? 

Adoption and recognition of decisions will take a long time. The compromise option is for the tribunal to take place in absentia, without detention and the physical presence of the accused in the courtroom. There are two unresolved issues - the impossibility of holding a special tribunal in absentia and the impossibility of depriving the leaders of the Russian Federation of immunity. But that shouldn't stop us. Justice has two sides - punishment of the guilty and compensation for the victims. So even if Putin doesn't live to see himself on trial, victims of mass crimes and future generations around the world need to know that evil will be punished. Punishment should be borne by both the top brass and those who committed the crimes, as well as the propagandists, whose voices were used to carry out war crimes in Ukraine. 

What are the key steps to complete before the Special Tribunal is established and operational? 

When there are certain developments, then we can talk about progress and plans. We, and not only us, are working on it. How many years will pass – five, ten, 15 years or more - is difficult to say. I can definitely say that it will be a huge amount of information, so it will take years. Because we will be fighting our way through a certain inertia and lack of understanding that [because] war has changed, which means that the mechanism of response to it has also changed. At the same time, it is important for us that the reaction system is based on previous international agreements. 

If we are talking about the stages of creating a tribunal, first of all it is necessary that there be recognition, legitimacy of this tribunal. It is important that it be an international tribunal. Therefore, it is important to cooperate with an international organisation that has significant experience. The Council of Europe is an important human rights body of the international community. After the UN Security Council, this institution looks like the best option - although it is worth remembering that the decisions of the Council of Europe apply only to European countries, and not to the whole world. 

What legal and technical aspects of a future Special Tribunal are already being discussed? 

The collection of information, development of the charter and the Core Group, regular meetings between countries to discuss various issues. This year in June there was a meeting in Vilnius. In addition, expert discussions are ongoing all the time at different venues, in different countries, because the experience of the war in Ukraine is unique in many aspects. What will happen between Ukraine and Russia in a judicial format will become a precedent. Discussing the crime of aggression is an important step in the evolution of international relations. That is why it is so difficult to advance. We are fighting not only against the aggressor country, but also against decision-making inertia. 

What role will the Council of Europe play in the creation and functioning of the Special Tribunal? How do you assess the prospects? 

It will not be easy, but it must be done. We lack historical justice. This trial is partly about historical justice for Ukraine and about the fact that in20 years no one will say - of course there were losses, but Putin was a good manager, you have to be like Putin. Only the court will give an opportunity not to accept the behaviour of aggression as a norm. 

Now the Council of Europe has elected a new Commissioner for Human Rights, and a new Secretary General is being elected. The Council of Europe understands that the old models of world associations are often ineffective and need to be changed in accordance with modern challenges. Therefore, an updated Council of Europe will definitely help develop international humanitarian law. 

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