The UK, Germany and Moldova have agreed to join the Agreement on the Establishment of a Special Tribunal for the Crime of Aggression against Ukraine, according to Ukrainian Foreign Minister Andriy Sybiha on Tuesday.
The crime of aggression is one of the four core crimes defined by the Rome Statute, alongside genocide, crimes against humanity, and war crimes (including grave breaches of the Geneva Conventions).
Sybiha, speaking at an external EU ministerial meeting in Kyiv alongside the EU’s top diplomat, Kaja Kallas, said the addition brings the total to 13 Council of Europe (not to be confused with the EU Council) members and one external nation, whereas the legal minimum to set up the tribunal is 16.
“We are counting on a much wider range of participants. Sixteen is only the legal minimum. I urge all colleagues to actively work on expanding this list of states,” Sybiha said, according to a foreign ministry press release.
“I hope that additional announcements will be made in the coming days. We are actively working on this.”
The full list of nations includes the UK, Estonia, Spain, Costa Rica, Latvia, Lithuania, Luxembourg, Moldova, the Netherlands, Germany, Slovenia, Ukraine, Croatia and Sweden, according to Iryna Mudra, deputy head of Ukraine’s Presidential Office.
What is a Special Tribunal?
A special tribunal is an ad hoc international court that prosecutes individuals for the four main crimes in conflicts when existing courts lack jurisdiction or capacity.
Past examples include the International Criminal Tribunal for the former Yugoslavia (ICTY) formed by the UN for those responsible for war crimes committed during the Balkan Wars of the 1990s, or the International Military Tribunal (IMT) after WWII – commonly known as the Nuremberg trials – responsible for prosecuting key figures of the Nazi regime.
Why a new Special Tribunal?
The new tribunal will focus on trying the Russian leadership for invading Ukraine under the framework of the Council of Europe, with support from other states.
The Council of Europe is a human rights organization that includes/included non-EU countries such as the UK, Turkey, Ukraine and Russia – until it was kicked out in 2022.
The new Special Tribunal intends to fill the gap that existing jurisdictions cannot fill.
In this case, since the International Criminal Court (ICC) lacks jurisdiction over the crime of aggression (though it retains jurisdiction over the three other main crimes), the Special Tribunal is here to fill that gap.
Who does it target?
The Special Tribunal aims to hold the Russian leadership responsible for invading Ukraine.
As such, soldiers or officials committing war crimes, such as the execution of civilians and sexual violence committed during the war, are not within the scope of the tribunal, and they are subject to other jurisdictions, such as the national courts within Ukraine.
Kyiv Post covered the concepts of war crime jurisdictions in an earlier article.
Can the tribunal bring Kremlin leader Vladimir Putin to trial?
Yes and no.
While the tribunal targets the Russian leadership, sitting heads of state, heads of governments and foreign ministers (the so-called “troika members”) enjoy political immunity while in office, meaning they are unlikely to be physically detained and stand trial in person.
However, the Special Tribunal can still investigate cases, prepare charges, and, when possible, arrest the accused and bring them to trial.