Ukraine Faces Uphill Battle in Quest for Special Tribunal to Prosecute Russia's War of Aggression

More than three years after Russia's initial invasion of Ukraine in 2014, and over two years since the full-scale invasion began in February 2022, the pursuit of justice for the crime of aggression remains a central, yet challenging, goal for Ukraine. While the International Criminal Court (ICC) has issued arrest warrants for Russian officials concerning war crimes, it lacks jurisdiction over the crime of aggression in this specific conflict. This limitation has spurred Ukraine to advocate for a special international tribunal to prosecute Russia's leadership for initiating and waging the war, but the path toward establishing such a tribunal is fraught with legal and political obstacles.

The Need for a Special Tribunal

The primary impetus for establishing a special tribunal stems from the ICC's jurisdictional limitations. The ICC's Rome Statute, which governs its operation, stipulates that the court can only investigate the crime of aggression if both the aggressor and the victim states have ratified the statute, which neither Russia nor Ukraine has done. While the ICC can prosecute war crimes, crimes against humanity, and genocide allegedly committed by Russian forces in Ukraine, it cannot address the overarching crime of aggression – the act of initiating an illegal war.

Ukrainian authorities have documented over 140,000 alleged war crimes committed by Russian forces since the full-scale invasion began. The ICC has issued six warrants against high-ranking Russian officials, including one against President Vladimir Putin, for the deportation of Ukrainian children. However, holding Putin and his inner circle accountable for the act of aggression itself requires a different legal mechanism.

Hurdles and Challenges

Despite widespread international condemnation of Russia's actions, establishing a special tribunal faces significant hurdles. These challenges include:

• Immunity: Heads of state and other high-ranking officials typically enjoy immunity from prosecution under international law. Overcoming this immunity is a major legal obstacle, as there is no established precedent for waiving such immunities in this context.
• Lack of International Consensus: While many countries support the idea of a tribunal, some are hesitant due to concerns about setting a precedent that could be used against their own leaders in the future. Securing broad international support and cooperation is crucial for the tribunal's legitimacy and effectiveness.
• Russia's Influence: Russia's permanent membership on the UN Security Council gives it the power to veto any resolution establishing a tribunal under the UN framework. This necessitates exploring alternative legal models outside the Security Council's purview.
• Defining Aggression: Defining the "crime of aggression" and establishing clear criteria for prosecution presents another challenge. The definition outlined in the Kampala Amendments to the Rome Statute could be contested, as only a limited number of countries have ratified them.
• Enforcement: Even if a tribunal is established and issues indictments, apprehending and bringing Russian leaders to trial would be a formidable task, particularly if they remain in Russia.

Potential Models and Approaches

Several models for establishing a special tribunal have been proposed, each with its own advantages and disadvantages:

• International Tribunal Based on a Multilateral Treaty: This model would involve establishing a tribunal through an agreement among a group of states, similar to the establishment of the International Criminal Tribunal for the former Yugoslavia. This approach would provide a strong legal basis for the tribunal and ensure international legitimacy.
• Hybrid Tribunal: This model would combine international and Ukrainian legal personnel and operate within the Ukrainian judicial system. This approach could offer a way to overcome immunity issues under Ukrainian law, but it may face challenges in terms of impartiality and international recognition.
• UN General Assembly Resolution: While not legally binding, a resolution by the UN General Assembly endorsing the creation of a special tribunal could provide significant political and moral support for the initiative.

Ukraine is reportedly considering two models for the tribunal, emphasizing the importance of an international profile to underscore that the court would address a crime against the entire global community, not just a conflict between two states.

Implications and the Path Forward

The establishment of a special tribunal would have far-reaching implications. It would send a strong message that aggression is unacceptable and that those who initiate illegal wars will be held accountable. It would also provide a measure of justice for the victims of the war in Ukraine and contribute to the restoration of international order.

However, the challenges are significant, and progress has been slow. As of early 2025, despite unanimous support from the Parliamentary Assembly of the Council of Europe, the tribunal has not begun its work, with experts suggesting little progress is likely this year. A key sticking point remains the hesitation of some of Ukraine's Western partners regarding the prosecution of Vladimir Putin himself.

To move forward, Ukraine needs to continue to build international support for the tribunal, address the legal challenges related to immunity and jurisdiction, and work with its partners to develop a viable and effective legal model. The creation of such a tribunal would add to Russia's diplomatic isolation and make a return to "business as usual" more difficult.

Conclusion

The pursuit of a special tribunal to prosecute Russia's war of aggression in Ukraine is a complex and challenging undertaking. While the obstacles are significant, the potential benefits in terms of justice, accountability, and deterrence are substantial. The establishment of such a tribunal would not only hold Russian leaders accountable for their actions but also send a powerful message that aggression will not go unpunished in the 21st century. The lack of political will remains the decisive factor, and Ukraine's continued efforts to galvanize international support will be crucial in overcoming the remaining hurdles.