Ukrainian President Volodymyr Zelensky and Secretary General of the Council of Europe Alain Berset on June 25 agreed to establish a Special Tribunal for the Crime of Aggression against Ukraine. The agreement, supported by all 46 Council of Europe member states, will establish a tribunal to address crimes of aggression in response to Russia's ongoing invasion. The crime of aggression refers to the decision by a state leader to wage a war that may violate Article 2(4) of the UN Charter, which prohibits the threat or use of force against the territorial integrity or political independence of any state. The tribunal's jurisdiction may also extend to Russian allies participating in the conflict.

The Council of Europe emphasized that the tribunal will uphold international legal standards, including rule of law, due process rights, and judicial independence. Additionally, the Council said that the tribunal will adopt a general legal framework in adherence to the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial, protection against retroactive punishment, and access to an impartial venue. The inclusion of crimes of aggression in the Rome Statute, which established the International Criminal Court (ICC) framework, further supports a commitment to prosecution.

Currently, the ICC addresses war crimes and crimes against humanity, but has limited jurisdiction over crimes of aggression. This leaves a gap in which political and military leaders who commit crimes of aggression may escape prosecution. The new tribunal is intended to complement the ICC by providing a mechanism to hold political and military leaders accountable for the decision to wage an unlawful war. The tribunal will also support Ukraine's efforts to document harm caused by the invasion, with a view toward potential reparations

A challenge the tribunal faces is securing the physical custody of individuals accused of crimes of aggression. Previous efforts to arrest Russian President Vladimir Putin, who remains subject to a 2023 arrest warrant for alleged war crimes, have been unsuccessful. Still, the ICC and Council of Europe maintain that international legal efforts serve to reinforce the rule of law and deter future violations through increased visibility and accountability. President Zelensky stated: "It will take strong political and legal co-operation to make sure every Russian war criminal faces justice—including Putin. This is the path we must walk—all the way to real charges and real verdicts."

From JURIST, June 26. Used with permission.

Note: The US withdrew from the international investigation of Russian aggression in Ukraine earlier this year. Russia was expelled from the Council of Europe in March 2022.

See our last report on war crimes accusations against Russia.