What’s Holding up the Special Tribunal for Putin?

More than two years ago, the Parliamentary Assembly of the Council of Europe (PACE) unanimously supported the creation of a special tribunal to prosecute the military and political leadership of Russia and Belarus.

Despite this apparent consensus, the tribunal has not begun its work, and experts believe that little progress is likely this year. Key to this delay is the fact that some of Ukraine’s Western partners remain hesitant about whether Vladimir Putin himself should stand trial.

Ukrainian authorities have logged over 140,000 alleged war crimes committed by Russians since the full-scale invasion of Ukraine began on February 24, 2022. Some are being investigated both at the national and international levels. In particular, the International Criminal Court (ICC) has issued six warrants against high-ranking Russian officials for specific war crimes, including one against President Vladimir Putin for the deportation of Ukrainian children.

However, the ICC does not currently have jurisdiction over the crime of aggression under the conditions outlined in the Rome Statute.

To hold the Russian president and his entourage accountable for the crime of aggression – specifically, unleashing the war against Ukraine – a special tribunal would need to be established.

There are no impediments to launching such a tribunal before the hostilities cease, but Ukraine needs to reach an agreement with its Western partners on the model and format for its creation. A lack of political will has made it extremely difficult to advance this process.

International Court

As of today, more than 40 countries have supported the creation of the Special Tribunal, signing a political declaration during the Restoring Justice for Ukraine conference held in The Hague in the spring of 2024.

Among the signatories are major Western political players such as the US, Germany, France and the UK. Differences remain over crucial details, not least the status of diplomatic immunity which Putin shares with Foreign Minister Sergey Lavrov and  Prime Minister Mikhail Mishustin.

While some leaders, such as Council of Europe Secretary General Alain Berset, speak about prosecuting Putin himself, much of the discussion remains behind closed doors, suggesting that there are still not enough votes in favour.

Experts note that some of Ukraine’s allies are concerned that disregarding diplomatic immunity could have long-term implications for their own interests. The US is believed to be one of the reluctant parties.

Deputy Head of the Presidential Office Iryna Mudra noted that it remained unclear whether the future tribunal will disregard the immunity of the so-called Russian leadership troika or not.

“At this stage, there are no definitive red lines regarding immunity – whether it should be upheld or not. Unfortunately, I cannot disclose all the details, as the negotiation process is underway.

“However, we now have a clearer understanding of how this issue should be addressed in the tribunal's statute and how to approach it. The creation of the tribunal itself is now significantly more realistic than it was [last] summer,” she concluded.

Experts agree that more countries also need to join to make the tribunal workable.

“The key issue is the legitimacy of this court. For that, as many countries as possible must join,” said Arie Mora, expert at the Ukrainian Legal Advisory Group, which focuses on justice in armed conflict. “If the goal is to achieve the status of an international tribunal under international law, a significantly larger number of countries is required.

“The tribunal’s legitimacy will depend on whether countries enforce arrest warrants. Additionally, as has been stated, gaining support from Ukraine’s partners in the so-called global south, or simply from non-Western countries, is important.

“This is because, overall, the idea is met with more scepticism in African countries, various Latin American states, and other regions.”

Targeting Officials

The creation of tribunals to prosecute state leaders is not unprecedented in global history. One of the most notable examples was the tribunal for the former Yugoslavia, which spanned more than 20 years. That tribunal was established by the UN Security Council based on a resolution spearheaded by France. Cases included ones where the defendants were political Bosnian Serb leaders including Radovan Karadžić and the then-President of Serbia, Slobodan Milošević.

The International Tribunal for Rwanda also targeted officials responsible for the 1994 genocide against the Tutsi people. Also established by the UN Security Council, the tribunal eventually sentenced the former Rwandan Prime Minister Jean Kambanda to life imprisonment.

However, the establishment of the so-called Tribunal for Putin is unfolding in a somewhat different context, not least because Russia remains a globally influential country.

“The key obstacle to creating the tribunal functioning based on the principles of the Yugoslavian one is Russia's membership in the UN Security Council,” said Mark Ellis, executive director of the International Bar Association.

“The special court for the crime of Russia’s aggression cannot rely on the Security Council, because Russia is its permanent member and will veto any such initiatives. We must therefore create a new model.”

Ellis emphasised that this meant the trials needed to be established within an international framework given the issue of immunity.

"This means that Ukraine could not independently prosecute the current head of the state. These legal and political contradictions pose serious obstacles to the proposed tribunal, which should target Russian leaders. However, the decisive factor is political will. The international community should continue to demand accountability and justice.”

Morie said that the prospect of the tribunal starting work even next year was “highly hypothetical,” although he deemed it possible that an agreement could be signed or a statute adopted in 2026.

“If the goal is to establish a truly international tribunal capable of overcoming personal immunity—which is the position of the Ukrainian government today—then the number of supporting countries and the level of backing must be much higher,” he said.

Morie noted renewed efforts to strengthen and expand the application of the article on the crime of aggression in the Rome Statute, with negotiations and a conference in New York this year expected to result in specific proposals.

“Yet even if the process of reforming the Rome Statute and expanding the court’s jurisdiction over the crime of aggression begins, it could take a long time, as such negotiations are highly sensitive,” Morie said. “For this reason, it is considered necessary to proceed with creating the tribunal in parallel rather than waiting. In our view, at the very least, these two processes should not be mutually exclusive.”