Unveiling a New Chapter in International Justice: The Creation of a Special Tribunal for Russia’s Aggression in Ukraine
After over eleven years since the first armed attack and more than three years into Russia’s full-scale invasion of Ukraine, the global community has taken a historic step forward in seeking accountability for aggression. Leaders, parliaments, and international institutions celebrated the signing of an agreement with the Council of Europe on the establishment of a Special International Tribunal tasked with prosecuting the crime of aggression against Ukraine. This groundbreaking decision was backed by the political support of over 35 nations and the European Union, all united in their commitment to justice and international law. The establishment of this tribunal is not merely a legal development but a symbol of a new era in combating impunity for war crimes. It signifies a paradigm shift — recognizing aggression as a prosecutable crime under international criminal law for the first time since World War II. This tribunal marks a significant step in bringing to justice those responsible for decisions to initiate conflict, breaching the UN Charter and international norms. For years, the crime of aggression remained beyond reach of international courts, but now, for the first time in decades, it is becoming a criminal matter with judicial proceedings. The United Nations General Assembly explicitly acknowledged Russia’s aggression through resolution ES-11/7 adopted on February 24, 2025, affirming the need to legally evaluate Russia’s actions. The process of creating the tribunal gained momentum because the International Criminal Court (ICC), despite its significance, lacks jurisdiction over the crime of aggression unless parties have ratified the Rome Statute, which Russia has not. The specificity of defining aggression has sparked disputes among member states, with amendments introduced only in 2010 at Kampala, but with limited applicability due to the requirement of consent. This created jurisdictional gaps, especially concerning major aggressors like Russia. The idea of a specialized tribunal was seriously discussed beginning in 2022, supported by prominent legal experts and public figures—including former Nuremberg prosecutor Benjamin Ferencz, and ex-Prime Ministers Gordon Brown and John Major—drawing parallels with the Nuremberg trials, which set historical precedents for prosecuting crimes against peace and war. The very concept of criminalizing aggression as a distinct category in international law represented a breakthrough. The envisioned tribunal differs from traditional models: it’s a hybrid structure combining features of international and national courts, designed to be recognized as part of the broader international criminal justice system. Its structure involves panels of judges, an Office of the Prosecutor, and a registry, with appointments made by participating states evaluated by an independent commission. Its primary mandate is to hold accountable those responsible for authorizing or executing illegal attacks, notably the political and military leadership—such as the Russian president, prime minister, and foreign minister—whose decision-making led to war. Though investigations can formally include these high officials, proceedings may be suspended while they remain in office, posing a vulnerability. Yet, legal debates continue regarding immunity, drawing on precedents like the International Court of Justice’s ruling in the Democratic Republic of Congo v. Belgium case, which confirmed that sitting foreign ministers enjoy immunity from criminal prosecution while in office, although they can be prosecuted in specialized international tribunals after their tenure. The tribunal aims to evaluate actions of key Russian officials, including members of the Security Council, and possibly Belarusian and North Korean leaders. Importantly, the tribunal also incorporates in absentia proceedings—trials conducted when the accused refuses to participate. Such procedures, used in tribunals on Lebanon, Sierra Leone, and the Central African Republic, allow for justice to be served even if the accused is not physically present, provided due process is maintained. For Ukraine, this is crucial, especially considering the events of 2014, including the annexation of Crimea, the invasion of Donbas, and the creation of puppet administrations. Ukrainian law recognizes February 20, 2014, as the start of occupation, and European Court of Human Rights confirmed Russia’s effective control over Crimea by late February. A flexible legal interpretation of these dates could serve as the basis for establishing the timeline of the aggression under international law. The unique aspect of this tribunal is that it is not created by the UN Security Council, which is blocked by Russia’s vetoes, but in partnership with the Council of Europe and other states, offering broader legitimacy. However, regional opposition and doubts about legitimacy remain a challenge—highlighting the importance of a collective effort grounded in the rule of law. Given the current geopolitical realities, some have questioned whether a UN General Assembly-based tribunal could be a better alternative, mitigating issues of legitimacy rooted in the UN Charter’s architecture. Yet, history shows that the Assembly, via mechanisms like the Uniting for Peace resolution of 1950, can assume responsibilities when the Security Council is paralyzed. Since the invasion of Ukraine in February 2022, this mechanism has been activated. The UN Charter is a living document, amenable to reinterpretation in the face of new challenges, and a universal tribunal could cover a broader spectrum of crimes—similar to models used in Cambodia or Myanmar. Why such paths have not been taken remains a matter of speculation. Currently, Russia has declared it will not recognize the tribunal’s legitimacy; however, justice must proceed regardless of non-recognition. Principles of accountability must be enforced even in the absence of cooperation from the accused. Signing the agreement marks only the beginning, with subsequent organizational steps including staff appointment, budget allocation, and procedural arrangements. Ensuring efficiency remains the highest priority because the tribunal’s ultimate goal is not just to prosecute aggression but to become an integral part of the broader justice architecture addressing war crimes, crimes against humanity, and potential genocide stemming from the conflict. The International Criminal Court covers some of these crimes, but it is insufficient to meet the scale of atrocities committed. A resilient and well-structured tribunal can serve as a testament to the international community’s determination to uphold justice, send a firm political-legal message, and prevent impunity. The process is long and complex, demanding unwavering commitment. The supporting countries must maintain their resolve, pushing forward the justice process and ensuring that accountability becomes a reality — not just a symbol. Only through sustained effort and political will can eventual justice be achieved, reaffirming that aggression will always be met with legal consequences, regardless of geopolitical complexities.