Ukraine Lays Groundwork for Special Tribunal on Russian Aggression
Despite significant progress, experts note that it may take years for the court to begin work.
Also see
The International Centre for Prosecution for the Crime of Aggression Against Ukraine
Prosecutors from different countries will be able to exchange evidence and agree joint strategy.
It took three-and-a-half years from the initial calls for the establishment of a Special Tribunal on Russian aggression to its founding this June within the framework of the Council of Europe.
But according to Anton Korynevych, director of the International Law Department at Ukraine’s Ministry of Foreign Affairs, that timeframe is “a mere moment in diplomacy”.
“We cannot apply the same thinking as we would to national jurisdiction, where results can be achieved in a matter of months. This is a different domain and not everything is dependent on one state,” Korynevych, who has been working on the Special Tribunal’s creation since Russia’s full-scale invasion, told IWPR.
“When we think about the time involved, we should also consider the importance and sensitivity of the matter. This concerns the individual criminal responsibility of heads of state. Therefore, this is indeed a very significant result.”
Experts note that despite significant progress, the Tribunal - which will have the power to issue verdicts in absentia and prosecute the leadership of not only Russian but also other involved countries – may take years to become functional.
The decision to create a separate tribunal stems from the fact that no existing international court has the jurisdiction to prosecute Russia’s top political and military leadership for the crime of aggression against Ukraine.
The International Criminal Court (ICC) can only prosecute the crime of aggression if the state in question has ratified the Rome Statute and its Kampala Amendments. Russia signed the Statute in 2000 but never ratified it, meaning it was not bound by its provisions. In 2016, Russia withdrew its signature, confirming it is not a state party. Ukraine, on the other hand, ratified the Statute last summer.
Korynevych noted that two of the three steps required to create the Special Tribunal have been completed; the signing of its Founding Agreement and its ratification by Ukraine.
“The third element is the submission of an enlarged partial agreement to the Council of Europe’s Committee of Ministers to establish a Steering Committee for the Special Tribunal. Once this enlarged partial agreement is approved by the Council of Europe’s Committee of Ministers, states will begin to formally join it. Some will do so through ratification, others by accession and some will implement it automatically, depending on their national laws,” he explained.
Acknowledging that this will be a time-consuming process, Korynevych estimated that the court would not be able to hear its first case until 2028 at the earliest.
Temporary Immunity
The Special Tribunal will be tasked with investigating, prosecuting and trying those bearing the highest responsibility for the crime of aggression against Ukraine.
Russian President Vladimir Putin, Foreign Minister Sergey Lavrov and Defence Minister Sergei Shoigu are protected by so-called troika immunity, which under international law prevents a state’s top three leaders from being prosecuted by other states.
“However, the Statute of the Special Tribunal makes no mention of such immunity,” Korynevych notes. “The Statute does state, though, that criminal proceedings against these three individuals will be suspended as long as they remain in office.”
“From the outset, our position was that there could be no immunities,” said Korynevych. “Some of our partners held a different view, so we had to reach a compromise…The substantive part of the Statute does not mention anyone having personal immunities. One provision states that when a case involves the troika, the prosecutor can publicly present the indictment. However, the judges will temporarily suspend proceedings for as long as the troika members remain in office. This was the compromise we were able to achieve. I would view this as part of a package with two other provisions: the possibility of trials in absentia and the absence of functional immunities.”
Volodymyr Yavorskyi, programme director at the Center for Civil Liberties, noted that the ICC already has jurisdiction over Putin and had issued a March 2023 arrest warrant for him for the war crime of unlawfully deporting children from occupied Ukrainian territory.
Asked about mechanisms for holding the Russian president accountable, assuming he remains in office for life, Yavorskyi said, “According to the Tribunal’s Statute, if the ICC prosecutes an individual, this Tribunal will defer to the ICC; proceedings at the Tribunal can only take place after the ICC trial is concluded.
“I believe this is the best possible option for Ukraine, because a regional tribunal without UN consent simply cannot be structured any other way.”
The Statute specifies that the Tribunal will be composed of Chambers, an Office of the Prosecutor and a Secretariat. It will be able to impose sentences of life imprisonment or a term of up to 30 years. It can also levy fines or seize any tools of the crime, proceeds, property or assets derived directly or indirectly from the crime of aggression.
According to the Special Tribunal’s Statute, its judges will decide who beyond the so-called troika can be prosecuted from the 736 Russian citizens already named as suspects by Ukraine’s Prosecutor General’s Office. The legal process will commence once Ukraine’s Prosecutor General transfers case files, information or evidence to the Special Tribunal’s prosecutor. The latter will then have the authority to launch an investigation before submitting the case for the Tribunal’s consideration.
Yavorskyi predicted significant challenges with locating and detaining suspects for the Special Tribunal, specifically whether other countries would enforce arrest warrants and extradite the accused.
“The Tribunal allows for convictions in absentia,” he continued. “However, if all convictions happen this way, there will be significant criticism of its creation.”
