Special Tribunal for Ukraine: Justice, Immunity, and the Future of International Law
The push for accountability regarding the war in Ukraine has taken a significant step forward with the movement too establish a Special Tribunal for the Crime of Aggression. This could potentially hold senior leaders accountable for the invasion of Ukraine. Though, critical debates surrounding immunity for high-ranking officials and the prospect of trials *in absentia* raise concerns about the tribunal’s effectiveness and fairness. Will this tribunal truly deliver justice, or will it be hindered by political compromises and legal loopholes?
The Genesis of a Special Tribunal
The initiative to create a Special Tribunal for the Crime of Aggression against Ukraine gained momentum following Russia’s full-scale invasion on February 24, 2022. This tribunal aims to address a critical gap in international law. While the International Criminal Court (ICC) can prosecute war crimes and crimes against humanity, it currently lacks jurisdiction to prosecute the crime of aggression in Ukraine, unless the UN security Council or Ukrainian government refers the case.
The Council of Europe is spearheading the effort, with the Committee of Ministers tasking its Secretary General to lead the establishment of the Special Tribunal. On 14 May 2025, Ukraine officially requested the Council of Europe to establish a Special Tribunal for the Crime of Aggression.
Immunity vs. Accountability: A Contentious Issue
One of the most significant points of contention revolves around the issue of immunity for high-ranking officials. The current draft Statute reportedly grants “personal immunities” to members of the Troika (Head of State, Head of Government, and Minister for Foreign Affairs). This provision has sparked considerable criticism from human rights organizations.
Did You Know? International criminal tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have historically rejected the concept of immunity for heads of state when prosecuting international crimes.
These groups argue that immunity undermines the very purpose of the tribunal. Moreover, high-ranking officials might bear the greatest obligation for the crime of aggression. Granting them immunity would enable them to evade prosecution.
Amnesty International Ukraine’s director,Veronika Velch,stated that any immunity provisions currently in the Tribunal’s draft legal framework must be urgently removed or risk compromising future justice for victims of aggression.
Trials *In Absentia*: A Risky Proposition?
The possibility of holding trials *in absentia* (without the presence of the accused) also raises concerns. While the draft Statute reportedly allows an accused person to request the reopening of proceedings, these trials may affect perceptions of objectivity and impartiality. International legal norms generally favor the right of the accused to be present and defend themselves.
Pro Tip: To ensure fairness, the Tribunal should prioritize securing the presence of the accused. If trials in absentia become necessary, robust measures must be in place to guarantee the defendant’s fair trial rights, including effective legal portrayal.
The tribunal needs to ensure any trials held *in absentia* respect the fair trial rights of the accused, including by effective representation by counsel even where they do not appear.
Ensuring Impartiality and Independence
To maintain credibility, the Special Tribunal must adhere to international legal standards. This includes ensuring impartiality and independence in all investigations, prosecutions, and adjudications, in line with international law and applicable European Convention on Human Rights’ standards.
Kate Vigneswaran, Director of the Global Accountability Initiative at the ICJ, emphasized that the Tribunal has to ensure complete compliance with international standards to maintain credibility.
Cooperation and Collaboration
Effective cooperation between various international bodies is crucial for the Tribunal’s success. This includes collaboration with:
- The Council of Europe’s Register of Damage.
- The Claims Commission.
- The International Center for the Prosecution of the Crime of Aggression against Ukraine (ICPA).
- The International Criminal Court (ICC).
States should also ratify the Ljubljana-The Hague Convention on International Cooperation in the investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War crimes and other International Crimes as a basis of cooperation with the Tribunal, and also international cooperation between states.
the Path Forward: Global Justice for Aggression
While the Special Tribunal represents a significant step, it’s essential to recognize that thorough accountability for the crime of aggression requires a broader international effort. The United Nations and the international community must continue working towards a global justice response for the crime of aggression against Ukraine and other countries.
Such an international mechanism should also exclude the possibility of any immunity for those alleged to have committed the crime of aggression.
Victims’ Rights: Central to the Process
Victims of Russia’s aggression deserve justice. All victims must be heard, and their rights to truth, justice, and reparations must be central to all discussions and actions taken as the establishment of the Special Tribunal moves forward.
The ICC has issued arrest warrants for Russian officials, including Vladimir Putin, for war crimes and crimes against humanity. Though, the ICC currently lacks jurisdiction to prosecute the crime of aggression in Ukraine.
Key Considerations for the special Tribunal
| Issue | Concern | Potential Impact |
|---|---|---|
| Immunity for Leaders | Granting immunity to high-ranking officials. | Undermines accountability and allows potential perpetrators to evade justice. |
| Trials In Absentia | Holding trials without the presence of the accused. | Raises concerns about fairness and impartiality. |
| International Cooperation | Lack of coordination between international bodies. | Hinders investigations and prosecutions. |
| Victims’ Rights | Failing to prioritize the needs and rights of victims. | Undermines the legitimacy and purpose of the Tribunal. |
How can the Special Tribunal ensure that victims’ voices are heard and their rights are protected throughout the legal proceedings?
What steps can be taken to strengthen international cooperation and ensure effective investigations and prosecutions?
Pro Tip: Engage with organizations like the International Federation for Human Rights (FIDH) and Amnesty International to stay informed and support efforts to promote accountability and justice.
