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The March 2022 Bucha massacre is one of the most-evidenced of Russia's war crimes (Photo: Rodrigo Abd)

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The idea of a special tribunal for the crime of aggression against Ukraine – explained

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“The evidence of Russia’s war crimes in Ukraine is plain to see. Unpunished crimes only encourage new atrocities,” said EU foreign affairs chief Kaja Kallas on Monday (13 October), as she pledged €10m to support the creation of a special tribunal for the crime of aggression against Ukraine. 

Kallas made the announcement during a press conference in Kyiv alongside Ukraine’s foreign minister, Andrii Sybiha. The topic was also discussed on Monday by EU ministers for home affairs during a meeting in Luxembourg.

But what exactly would such a tribunal mean in practice?

What is a special tribunal, and why is it needed?

Special tribunals are a dedicated international court created to prosecute specific crimes, separate from existing institutions like the International Criminal Court (ICC). 

From a legal point of view, the tribunal is necessary since the ICC cannot legally prosecute Russia for attacking Ukraine because Russia never ratified the Rome Statute of the ICC.

But the special tribunal is designed to work alongside the ICC, coordinating with it. 

Already in 2023, EU justice commissioner Reynders admitted that going through the ICC was the "gold solution" and called setting up the special tribunal the "silver" solution. The golden solution was always very unlikely since such an attempt would have been blocked by Russia, a permanent member of the UN Security Council with a veto right.

“If we want to prevent wars in the future, we must punish the states and leaders who start wars now,” said Oleksandra Matviichu, a Ukrainian human rights lawyer and head of the Centre for Civil Liberties. 

“A lot has changed since the Nuremberg tribunal, but Ukraine had to make enormous efforts to convince the international community that we should not wait and make justice dependent on the outcome of the war,” she said.

Further reading: Prosecuting Russia: The possibilities, challenges and risks of a special tribunal (April 2023)

How would it work?

The tribunal will have the power to investigate and prosecute Russian political and military leaders considered responsible for the crime of aggression against Ukraine.

The crime of aggression, dubbed the "mother of all crimes" or “the supreme international crime” as no other war crimes would be committed without it. It involves using armed force against another state's sovereignty, territorial integrity, or political independence, according to the UN. 

The tribunal will be established within the Council of Europe's institutional structure. And it will prosecute crimes that occur only in Ukraine.

Further reading: Ukrainian Nobel Prize winner: what are European countries waiting for? (July 2025)

Why is it controversial?

Even if a tribunal is legally sound, it has struggled to gain global credibility, especially among countries of the Global South, which see the establishment of special tribunals as selective by Western states, with examples such as the invasion of Iraq or the lack of action against Israel over Gaza fuelling scepticism.

“The complete absence of any accountability for those responsible at the leadership level at the time shows a strange understanding of the so-called rule-based international legal order, which should guarantee the same application of the law for everyone,” Kai Ambos, a German jurist and professor of criminal law at the University of Göttingen, argued in 2023.

Ambos also wrote that the regional initiative under the Council of Europe only provides “limited legitimacy” and that setting up a fully operational tribunal — with its own staff, buildings, and procedures could take years.

Further reading: Why Putin war crimes 'tribunal' will need backing of Global South (January 2023)

Previous examples and main legitimacy challenges

The Ukrainian tribunal is often compared to the Nuremberg Trials (1945–1946) where, after World War II, and for the first time in history, state leaders were held personally responsible for launching illegal wars. But legal scholars argue that the comparison is misleading since the International Military Tribunal was a result of the Allies winning the war and the military defeat of Nazi Germany — which seems unlikely when it comes to Russia.

Further reading: How to apply the Nuremberg model for Russian war crimes (September 2022)

How will the tribunal be funded? 

Another of the challenges is how this special tribunal will be funded, leaving it up to voluntary contributions, which increases the uncertainty.

The tribunal will be run and funded by the countries that choose to participate, under the so-called "enlarged partial agreement".

The Council of Europe said that the exact costs are still being worked out and that they are likely to be similar to other international or internationalised criminal tribunals.

For example, the International Criminal Tribunal for Rwanda (ICTR) which was set up by the UN Security Council to prosecute crimes linked to the genocide in the African country, spent about $1bn [€860m] over its first 10 years, delivering one verdict. Costs are often cited as surpassing $2bn. 

So Monday’s announcement of €10m, the first concrete such pledge, remains far from what would in total be needed. 

Who has been leading this initiative?

In February, senior legal experts from the European Commission, the European External Action Service, the non-EU Strasbourg-based Council of Europe, Ukraine and 37 states laid down the legal foundations for the establishment of a special tribunal in the “Schuman draft Statute”.

The creation of this special tribunal was officially requested by the Ukrainian authorities on 13 May 2025 — a few days after a coalition of states gathered in Lviv to endorse the move, including Kallas and other EU high-ranking officials. 

Finally, in July, Ukraine and the Council of Europe signed an agreement to establish this tribunal, including the statutes of its jurisdiction.

Further reading: Legal scholars: Prosecuting Putin 'legally problematic' (November 2022)


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