Why Europe’s new tribunal initiative could reshape accountability for Russia’s war
The Ukrainian flag flies at half-mast outside the Council of Europe headquarters in Strasbourg following recent Russian attacks on Ukrainian civilians, as European states move forward with efforts to establish a special tribunal for the crime of aggression against Ukraine (Photo: https://www.coe.int)
The Committee of Ministers of the Council of Europe on May 15 approved an enlarged partial agreement establishing the Steering Committee for the Special Tribunal for the Crime of Aggression against Ukraine — a step Kyiv and its partners see as critical in closing one of the biggest accountability gaps in international law. While international courts can prosecute war crimes, crimes against humanity, and genocide, holding political leaders accountable for launching a war of aggression remains far more complicated. In an interview with The New Voice of Ukraine, Maksym Vishchyk, legal adviser with the Global Rights Compliance Foundation, explained why the decision is significant, how long the tribunal could take to become operational, and what legal and political challenges still lie ahead.
Demian Shevko: Why is this decision important?
Maksym Vishchyk: The crime of aggression is a key facilitator of other international crimes, including war crimes, crimes against humanity, and potential genocide committed by Russian forces in Ukraine. In many ways, aggression serves as the umbrella crime that enables other atrocities to occur.
Despite its central role, however, mechanisms for prosecuting the crime of aggression remain extremely limited and are largely confined to domestic jurisdiction in Ukraine. There are historical reasons for that.
The Tokyo and Nuremberg tribunals were effectively the only international institutions to prosecute the crime of aggression after the concept clearly emerged in the 1940s and became embedded in international law following the adoption of the UN Charter in 1945 and the prohibition of the use of force it crystallised.
Since then, multiple international institutions have gained jurisdiction over war crimes, crimes against humanity, and genocide. But none has universal jurisdiction over the crime of aggression.
The International Criminal Court includes the crime of aggression in its statute, but its jurisdiction is highly restricted. It applies only in situations where the relevant parties clearly and unequivocally accept the court’s jurisdiction over that specific crime.
As a result, Ukraine has largely been left with domestic prosecutions while international mechanisms remain insufficient.
That forced the Ukrainian government to look for innovative ways to make the crime of aggression prosecutable at the international level. Establishing a tribunal capable of addressing this accountability gap is therefore fundamental not only for Ukraine, but for international justice efforts more broadly.
Demian Shevko: How long could it take for the tribunal to become operational?
Maksym Vishchyk: It is difficult to estimate precisely because establishing any international institution is a lengthy and complicated process.
Still, Ukraine and its international partners in Europe and beyond are steadily moving forward. According to Ukrainian government sources, the tribunal could potentially begin operating as early as next year.
Before that can happen, however, several important steps still need to be completed. These include drafting internal policies, developing procedural rules, addressing budgetary issues, and hiring the necessary staff.
This is not a fast process, but it is a steady one. Given the pace of work so far, I believe the launch of operations next year is realistic.
That said, everything depends on several broader factors, including the political will of states supporting the tribunal, long-term financial commitments, and various technical and infrastructural issues related to its functioning.
Demian Shevko: What obstacles remain to establishing such a tribunal?
Maksym Vishchyk: There are several major challenges.
One of the most important is sustaining political will over time. States are supporting the initiative now, but maintaining that level of commitment over the coming years will be crucial. Political priorities can change when governments change, and support may weaken.
There are also logistical and institutional limitations. International courts and tribunals are often overwhelmed and under-resourced. Financial and staffing constraints can limit their ability to prosecute all individuals of interest.
In addition, there are many unresolved legal questions that the tribunal itself may ultimately help shape.
For example, there is the question of the element of "leadership". This is an inevitable component of the crime requiring that only persons capable of significantly influencing, controlling or directing states' policies bear responsibility for the crime. Anyone below this threshold cannot be held responsible. How should the scope of "leadership" be defined in the context of aggression? How many individuals should fall within the tribunal’s jurisdiction? Should it focus only on the extremely limited number of highest-ranking Russian officials? Should the scope include three people, five, or perhaps more?
But the crime of aggression presents a unique challenge because there is effectively no international precedent for prosecuting it beyond Nuremberg and Tokyo.
These are significant legal questions, and the tribunal could play an important role in further developing international law in this area.
Demian Shevko: Why was the Council of Europe chosen instead of the United Nations or another international mechanism?
Maksym Vishchyk: In theory, several models for establishing such a tribunal were available.
We have seen purely international tribunals in the past, such as those for Rwanda and the former Yugoslavia, created through resolutions of the UN Security Council. There have also been hybrid mechanisms combining domestic and international elements.
But the crime of aggression presents a unique challenge because there is very little precedent for prosecuting it beyond Nuremberg and Tokyo. For that reason, it was important for the tribunal to remain international in character.
Ukraine and its partners explored multiple options, including mechanisms within the United Nations system. However, the UN Security Council was never a realistic option because Russia would certainly veto such an initiative, alongside potentially other states that either committed acts of aggression in recent decades or could plausibly face similar accusations.
That forced Ukraine to seek alternative international mechanisms, including regional ones. The Council of Europe ultimately became the platform willing to host the creation of the tribunal.
This is important because it arguably preserves the tribunal’s international nature. It prevents the process from appearing as if only a small group of states arbitrarily decided to create a court targeting officials from another country.
The broad number of supporting states also reinforces the tribunal’s international legitimacy.
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