Establishment of Special Tribunal to Prosecute Russian Leaders for Aggression Against Ukraine

In a significant step towards accountability, a special tribunal has been created to prosecute high-ranking officials of the Russian government, including President Vladimir Putin, for the crime of aggression against Ukraine. This development comes more than three years after the onset of the Russian invasion, as international legal efforts to hold perpetrators accountable gain traction.

On a recent occasion in Strasbourg, representatives from the Council of Europe and the Ukrainian government formalized an agreement to establish this tribunal, which aims to address a critical gap in international law concerning the prosecution of aggressive warfare. Ukrainian President Volodymyr Zelenskyy emphasized the necessity of strong political collaboration to ensure that all Russian war criminals, including Putin, are held accountable for their actions.

Kaja Kallas, the EU High Representative for Foreign Affairs and Security Policy, highlighted the extensive documentation of Russia's military actions, asserting that there should be no room for doubt or impunity regarding these acts.

The new tribunal will operate under the framework of international customary law and United Nations resolutions. It is expected to be located in The Hague, addressing a significant legal void that the International Criminal Court (ICC) has been unable to fill. The ICC can only prosecute individuals for crimes committed during wartime, but not for the act of initiating an aggressive war itself. Furthermore, since Russia has not ratified the Rome Statute of the ICC, its leaders cannot be prosecuted directly by this court.

In March 2023, the ICC issued an arrest warrant for Vladimir Putin, accusing him of the unlawful deportation of Ukrainian children amidst the conflict, with Ukrainian authorities documenting almost 20,000 minors forcibly taken to Russia. However, human rights organizations warn that the actual number of unreported cases could be substantially higher. Subsequently, additional arrest warrants were issued for other leading Russian military officials, including then-Defense Minister Sergei Shoigu and General Valery Gerasimov, in connection with attacks on civilian infrastructure.

Moreover, Ukraine has initiated legal proceedings against Russia at the International Court of Justice (ICJ). Unlike the ICC, the ICJ addresses disputes between states, such as border issues or treaty violations. Ukraine's lawsuit accuses Russia of misusing the international genocide convention to justify its invasion, claiming that Russia's allegations of genocide against Russians in the Donbas region are unfounded. The ICJ has accepted jurisdiction in this matter, and proceedings are currently ongoing.

Additionally, several cases against Russia are pending at the European Court of Human Rights (ECtHR), including those related to the downing of the MH17 passenger aircraft in eastern Ukraine and the ongoing human rights violations in Crimea since its annexation. Following its withdrawal from the Council of Europe in September 2022, Russia can no longer be subjected to new complaints at the ECtHR; however, previously submitted cases are still under review, and the court's judgments theoretically remain enforceable.

Furthermore, various national jurisdictions, including those in Germany, France, Spain, and Lithuania, are investigating alleged war crimes committed by Russian officials under the principle of universal jurisdiction, which allows countries to prosecute serious crimes regardless of where they occurred.

The newly established tribunal is set to commence its operations in the coming months, following the appointment of judges and prosecutors. However, it is crucial to note that it is highly improbable that defendants such as Vladimir Putin will be tried in person, as sitting heads of state typically enjoy immunity. Additionally, Russia does not recognize the authority of international courts, making extradition unlikely. Therefore, proceedings will likely occur in absentia.

Despite these challenges, the Council of Europe underlines the tribunal's significance in gathering evidence and formulating charges, serving as a model for future legal actions against acts of aggression by Russia or other states.