DCU Conflict Institute

The Road Not (Yet) Taken: A Special Tribunal for the Crime of Aggression against Ukraine

In his famous poem, The Road Not Taken, Robert Frost laments the fact that travelling one road precludes travelling another but acknowledges that taking the road less travelled can make all the difference. The journey towards accountability for the crime of aggression has begun but we have reached a fork in the road.

Between 19 and 21 March, the 14^th meeting of the Core Group on the creation of a Special Tribunal for the Crime of Aggression against Ukraine concluded more than two years of work with agreement on the technical legal basis for such a tribunal within the framework of the Council of Europe. This is a decisive step towards setting up an accountability mechanism for a crime that has not been prosecuted since the Tribunals at Nuremberg and Tokyo at the end of the Second World War. The proposal is for an internationalised court of limited jurisdiction derived from Ukrainian law but based outside Ukraine and focussing on senior political and military leadership who bear most responsibility for the catastrophic aggression against Ukraine (see here). Overall, this would be a tiny number of powerful and extremely well-protected people including the so-called “Troika” of the President, Prime Minister and Minister for Foreign Affairs of the Russian Federation. Such a mechanism wouldn’t substitute domestic prosecutions of war crimes in Ukraine, rather it would augment those efforts.

However, now comes the real challenge, as the discussion moves from the technical to the political and at a moment of such international upheaval, the prospect of securing sufficient political backing for the establishment of a credible and effective tribunal is far from certain. Yet, failure to secure meaningful accountability for Russia’s egregious crimes in Ukraine will embolden the perpetrator, inspire other authoritarian states and will inevitably make us all less safe. In this piece, I consider where we stand in terms of the establishment of a Special Tribunal.

Background to the Special Tribunal for the Crime of Aggression

Russia’s war on Ukraine began in 2014, but it took a full-scale invasion in February 2022 for the world to focus the minds on the openly genocidal persuasion of the Russian government. It triggered an unprecedented international response including at the level of UN, Council of Europe and the EU. In parallel with supporting Ukraine in its existential battle, from an international law perspective early attention focussed on the collection and preservation of evidence of war crimes and other serious violations of international law. This included reinforcing Eurojust’s mandate through the commencement of the work of the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) as part of the Joint Investigation Team. An Independent International Commission of Inquiry on Ukraine was also established by the Human Rights Council in 2022 to investigate all alleged violations and abuses of human rights, violations of international humanitarian law and related crimes.

Already then, an enhanced role for the Council of Europe was being considered as a possible framework for a future tribunal (e.g. as discussed by Heller here and later by Stendel here). What makes the CoE a credible option is its institutional architecture (i.e. an established structure with expert secretariat), legal tools (i.e. treaty-making powers and depository functions) and the practical judicial experience of the European Court of Human Rights. It also offers a well-established inter-governmental platform for dialogue and cooperation.

The Fourth Summit of Heads of State and Government in May 2023 and the signature of the Reykjavik Declaration copper fastened accountability as a key part of the new raison d’etre of the organisation (see here). In particular, it established the Register of Damage Caused by the Aggression by means of a treaty known as an “Enlarged Partial Agreement.” This flexible cooperation mechanism is also open to non-member states, international organisations and any other State that has voted in favour of the UNGA Resolution on the “Furtherance of remedy and reparation for aggression against Ukraine” or any state that requests to join subject to “taking into particular account the position of the Government of Ukraine.”

The Register of Damages records claims of compensation for damages, loss, or injury drawing on the experience of the United Nations Compensation Commission (“UNCC”). Ukrainian citizens and residents can submit claims for damage or destruction of residential immovable property as well as claims for the death of an immediate family member. The Enlarged Partial Agreement establishing the Register must be seen in the context of para 7 of Ukraine’s Peace Formula which emphasises the importance of a three tier approach to justice – investigations, prosecutions and reparations. To those ends, the preamble underscores that the Register is a first step to be followed by an international compensation mechanism which would serve as a means to manage reparations.

What has been Agreed?

In January 2023, a so-called Core Group comprising senior legal experts from approximately 40 states along with the Council of Europe and the European Union convened to consider accountability options. Over two years and fourteen meetings the group brought legal shape to a mechanism to hold Russian leadership to account for what the Nuremberg described as the ‘supreme international crime.’

The necessity for such an initiative stems from the fact that the International Criminal Court’s (ICC) jurisdiction over the crime of aggression is limited to States party to the Rome Statute. As Russia is not a party, those who are most responsible for the invasion of Ukraine, including senior political and military leadership, are effectively untouchable from an ICC perspective. This situation is intolerable to Ukraine, but it also represents an affront to international law and the rules based international order.

Ultimately, 38 states (including Ukraine), the Council of Europe, the European Commission and the European External Action Service signed off three draft documents:

1. a so-called “Schuman draft Statute”, the core legal text that will govern the functioning of the Special Tribunal, establishing a definition of the crime of aggression, the court’s jurisdiction and applicable law, key parameters related to investigation, prosecution and trials, including the establishment of a prosecutor as well as questions related to immunities;

2. an Enlarged Partial Agreement on a Special Tribunal, which will be an international treaty for the purposes of the Vienna Convention on the Law of Treaties covering the management and resourcing of the Special Tribunal;

3. And finally, a draft bilateral agreement between the Government of Ukraine and the Council of Europe, extending Ukraine’s domestic jurisdiction to that of the Special Tribunal.

None of these documents have been made public for the time being, however, it is likely the Enlarged Partial Agreement follows the precedent established by the Register of Damages, especially as regards budget which foresees contributions of its Participants and Associate Members and allows for voluntary contributions. It would be surprising if the Statute hasn’t taken cues from the Rome Statute of the ICC. Its content is especially important as it will clarify controversial issues related to immunities (see here and here) and the conduct of trials (i.e. in absentia or in person only).

It is expected such a court would be established outside Ukraine, possibly the Hague or Strasbourg, and it would allow Ukraine to refer the dossiers of domestic investigations related to the crime of aggression to the Prosecutor of the Special Tribunal who could then draw on evidence accumulated within the framework of the International Centre for the Punishment of the Crime of Aggression (ICPA) to pursue prosecutions.

The Pursuit of Reparations

The establishment of a Register of Damages does little to advance justice for victims without the establishment of a corresponding Claims Commission underpinned by a Compensation Fund to provide for reparations. What is envisaged – though also not yet agreed – is that an International Claims Commission could be established to supersede the Register of Damages (see here), inheriting and augmenting its work including facilities and resources. The EU noted the immediate priority is to take the ‘zero draft’ of the instrument setting up the Claims Commission to formal negotiations by the end of March. But how to fund reparations?

Enter stage right: Frozen Russian assets!

It is estimated some €274bn in Russian assets are being held in European member states, the US and elsewhere. The lion’s share of these assets, €183bn, is being held at Euroclear, a Belgian clearinghouse for financial transactions. As of last year, the interest from Russian assets is already being seized. Euroclear announced that €1.55 billion in interest accrued from Russian assets was transferred to the European Fund for Ukraine in July 2024 with a further €2 billion expected to be transferred imminently. The question of whether these assets can be seized or leveraged as a countermeasure – for instance to allow for low interest, high capital borrowing – to help rebuild Ukraine, let alone to compensate individuals directly or to fund securitisation, is a matter of significant contention, though it seems like the wind is starting to blow in this direction. Nevertheless, given that it took 26 months to reach agreement on technical aspects of a Special Tribunal, it seems unlikely the Internationals Claims Commission and Compensation Fund will be established this year (as expected by Kyiv). One question is whether any action will be taken on the establishment of a Special Tribunal for the Crime of Aggression unless and until an International Claims Commission is established.

Some Words of Caution…

Despite the unity amongst most European states about the need to pursue accountability, there are significant challenges ahead. Agreement on the technical process of developing a Special Tribunal for the Crime of Aggression may not translate into concrete political support to establish it. States have a multitude of potentially competing interests including stopping the war, reinforcing European defences, reducing scope for conflict with key international allies, managing political capital vis-à-vis other tragic conflicts such as Israel’s genocide in Gaza, and no less importantly, minimising consequences on their economies and costs on their taxpayers. This is the realpolitik context that must be acknowledged. All the more so as Europe braces for a broader trade war with the USA. There are risks too in terms of legitimacy and effectiveness.

If a Special Tribunal only focusses on a small group of elite prosecutions, at a tremendous cost and with no guarantee of ever apprehending let alone convicting these suspects, what does this do for individual justice in Ukraine and the broader system of international criminal justice? Indeed, some may argue that the pursuit of this initiative serves only to further undermine the International Criminal Court which is under enormous duress at present. Some suggest the focus should be on massively reinforcing Ukrainian domestic criminal proceedings, and reinforcing the ICC rather than pursuing further fragmentation of the international criminal justice system.

Such questions are all the more prominent now that the US Administration is pursuing an irrational, deeply protectionist and dangerous approach to international relations. Initially, the US had played an active and important role in these discussions about the Special Tribunal, but since President Trump won the election that support progressively waned. Now the US has precisely zero interest in prosecuting President Putin. This will be seen as further increasing the political and financial burden on European states to compensate for the lack of US support. But is a Europe-only, or Europe-mainly, Special Tribunal credible?

Though there are no easy answers, we must maintain perspective. The integrity and long-term future of the international legal framework is of paramount importance. Short-termism will not only fail our collective duty towards Ukraine, it will ultimately come home to roost.

Conclusion

The pursuit of accountability is a matter of first principles. Russia has flagrantly violated the UN Charter as well as international humanitarian law and international human rights law by invading Ukraine, targeting civilians, destroying infrastructure, displacing millions and traumatising an entire generation. These are indisputable and observable facts. Russia must bear the legal consequences for its internationally wrongful acts, including making reparation for the injury, including any damage caused by such acts. To sustain a rules-based order and the integrity of international law, the international community must pursue meaningful accountability for the crime of aggression. Indeed, if it does not, can we even speak of the existence of such a crime?

When faced with a revanchist Russia and recalcitrant United States, Europe must show new leadership for age-old values. The blueprints for the Special Tribunal and International Claims Commission now exist. Sometimes taking road less travelled is what makes all the difference…

The original article is available on Opinio Juris : here