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A TRIBUNAL IN WAITING THAT CANNOT TOUCH VLADIMIR PUTIN — FOR NOW  
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Gleb Bogush

The Insider

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_ The tribunal will focus on the crime of aggression against Ukraine,
but Putin is immune while in office. Even with its limitations, it is
a significant step towards the first court to prosecute the crime of
aggression since Nuremberg and Tokyo. _

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On June 25, Ukrainian President Volodymyr Zelensky and Council of
Europe Secretary-General Alain Berset signed
[[link removed]] the treaty
[[link removed]] establishing
the Special Tribunal for the Crime of Aggression against Ukraine.
Although discussions to set up such a judicial body began in February
2022, it is only now that the plans have taken shape.

What defines the crime of aggression?

In 2010, the ICC states parties adopted
[[link removed]] a definition
[[link removed]] for
the crime of aggression the “planning, preparation, initiation or
execution, by a person in a position effectively to exercise control
over or to direct the political or military action of a State, of an
act of aggression which, by its character, gravity and scale,
constitutes a manifest violation of the UN Charter.” Russia, which
at the time was an ICC observer state under President Dmitry Medvedev,
fully supported
[[link removed]] the
definition — fifteen years later, Medvedev declared
[[link removed]] the ICC “a legal
nonentity.”

The concept of the crime of aggression is grounded in the belief that
illegal war is evil in itself. The International Military Tribunal in
Nuremberg described
[[link removed]] the
launching of a war of aggression as “the supreme international crime
differing only from other war crimes in that it contains within itself
the accumulated evil of the whole.”

Aggressive war, by its nature, violates human rights. The UN Human
Rights Committee held
[[link removed]] in
2019 that every deprivation of life resulting from an act of
aggression amounts to a violation of the right to life. International
humanitarian law does not classify all killings in wartime as war
crimes. Only by prosecuting the crime of aggression can state leaders
be held accountable for the killing of soldiers and civilians
resulting from an unprovoked attack, even if those deaths resulted
from actions that would be seen as acceptable under the laws of war.
War crimes, by definition, can be committed by both sides of an armed
conflict — and often are. Focusing solely on prosecuting war crimes
committed in a conflict that resulted from a clear act of aggression
from one side creates a false perception of legal and moral
equivalence between aggressor and victim. Hence the necessity of
prosecuting the crime of aggression.

Aggression is a “leadership crime” — one for which political and
military leaders of the aggressor state are held responsible, along
with officials of any co-aggressor states. In the case of Russia’s
war of aggression against Ukraine, this includes Belarus and
potentially North Korea.

Why was the tribunal controversial?

A special tribunal was deemed necessary because, under current
conditions, the International Criminal Court (ICC) cannot
independently initiate proceedings for the crime of aggression in
Russia’s war against Ukraine. This particular crime falls under a
special legal regime, and the only mechanism for referral to the ICC
is through the United Nations Security Council — an unworkable
solution in this case, as Russia holds veto power as a permanent
member of this UN organ. The ICC states parties are scheduled to
review amendments to the Rome Statute
[[link removed]] in
early July aimed at closing this loophole. However, those changes,
even if adopted, will likely apply only to future acts of aggression,
not to the ongoing war in Ukraine.

Europe struggled for years to reach a consensus on a tribunal. The
idea was first publicly proposed just four days after the start of
Russia’s full-scale invasion, when University College London law
professor Philippe Sands published an op-ed in the _Financial Times_
[[link removed]]. His
proposal was swiftly endorsed by dozens of legal scholars and
political leaders, including former UK Prime Minister Gordon Brown,
who co-authored a declaration
[[link removed]] supporting
the initiative. The idea went on to gain backing from the Ukrainian
government and several other states.

The idea of a tribunal was first publicly proposed just four days
after the start of Russia’s full-scale invasion of Ukraine.

Ukraine initially pushed for a full-fledged international tribunal
modelled on the post-conflict ad-hoc tribunals established in the
1990s to try persons responsible for the atrocities in of Rwanda and
the former Yugoslavia. However, the proposal faced immediate
criticism, including from members of the Group of Seven (G7) —
particularly the United States. While the Biden
administration supported
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idea of holding Putin and his inner circle accountable for the crime
of aggression, it advocated for a court based in Ukraine with
international participation. U.S. officials argued that the immunity
enjoyed by Putin and other senior Russian officials posed a clear
legal obstacle to prosecuting them in an international forum.

There were also concerns
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the feasibility of garnering broad international support, especially
outside Europe, and securing a strong majority in the UN General
Assembly, which would have needed to endorse the creation of such a
tribunal. The “hybrid tribunal” model eventually approved
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the G7 countries, including the UK and Germany, was seen by some
observers as a diplomatic compromise.

Beyond Europe, the idea of a tribunal drew objections from many
countries in the Global South, where it was perceived as a “court
against Russia” — set against the backdrop of Western impunity for
illegal military actions, and especially U.S.-led invasion of Iraq in
2003. There were also concerns about the feasibility of garnering
broad international support, especially outside Europe, and securing a
strong majority in the UN General Assembly, which would have needed to
endorse the creation of such a tribunal.

The idea of a tribunal drew objections from many countries in the
Global South, where it was perceived as a “court against Russia”
— set against the backdrop of Western impunity for past military
interventions.

The International Criminal Court expressed unexpectedly lukewarm
support for the tribunal idea. Prosecutor Karim Khan called
[[link removed]] for
a “consolidation” of efforts within the ICC framework, effectively
characterizing the tribunal project as a dilution of prosecutorial
efforts. Observers, however, saw
[[link removed]] this
as a sign of institutional competition and a “turf war.”

The Council of Europe’s regional international tribunal ultimately
emerged as a compromise solution. In 2023, a Core Group on the
tribunal was formed
[[link removed]],
bringing together representatives from around 40 countries: the EU
member states, the United States, the United Kingdom, Australia, and
Switzerland. However, following Donald Trump’s return to the White
House, the United States withdrew
[[link removed]] from
the initiative.

The group’s efforts produced
[[link removed]] three
key documents: a draft agreement between Ukraine and the Council of
Europe, the Tribunal’s statute, and what is referred to as an
“enlarged partial agreement,” which governs the tribunal’s
operations. Membership is open to Council of Europe members (though
participation is not mandatory) as well as third countries.

WHAT DO WE KNOW ABOUT THE STRUCTURE OF THE FUTURE TRIBUNAL?

Documents published by the Council of Europe indicate the following
parameters for the special tribunal:

* The tribunal will be established through an international treaty
between Ukraine and the Council of Europe, with membership open to
other states.
* It will apply international law — including the ICC’s
definition of aggression, and, as the last resort, Ukrainian criminal
law when necessary.
* The Judges and a prosecutor will be selected by a managing
committee from participating states.
* Ukraine’s attorney general will provide files on suspects. If
the prosecutor finds the legal and evidentiary basis then
investigations can be launched and indictments can be submitted to
judges. The prosecutor cannot initiate cases independently.
* The tribunal is likely to be based in The Hague, though the final
hosting location will be determined via future bilateral agreements.
* It can hold trials in absentia, but only for individuals not
covered by immunity. This means that the so-called “troika” of top
officials — the head of state, the head of government (prime
minister), and the foreign minister — cannot be prosecuted while
they remain in office, though charges against them can be prepared at
any time.

Trials of Vladimir Putin and Sergey Lavrov will only be possible after
they leave their official positions, as their immunity remains in
effect while they are in office.

A document
[[link removed]] published
by the Council of Europe “expresses hope” that work on
establishing the tribunal will be completed by 2026. However, the
feasibility of that timeline depends on the actions of participating
states, which must still ratify the agreement, approve the budget, and
carry out other necessary steps.

What questions remain unanswered?

While the new special tribunal on the crime of aggression against
Ukraine will not be able to hold trials in absentia for Russia’s top
leadership — the so-called “troika” — this does not mean that
it cannot investigate their actions. It appears the architects of this
compromise aimed to sidestep the legal challenges of head-of-state
immunity by imposing restrictions on the “not-fully-international”
body.

Legally, the decision conflates two distinct issues: trials in
absentia, and immunity. Immunity is either present or it is not. If
the head of state is immune before an international tribunal — a
claim that remains legally debatable — then the prosecution of that
individual is barred — both in person and in absentia.

Recognizing the immunity of a dictator before an international
tribunal could send a dangerous signal. Leaders like Vladimir Putin,
Alexander Lukashenko, and Kim Jong Un are de facto lifelong autocrats.
In effect, by acknowledging their immunity, the tribunal’s founding
states not only legitimize their rule but also offer them a blueprint
for avoiding international justice: cling to power at any cost. In
Putin’s case, that cost is a continuation of the current war of
aggression.

Recognizing the immunity of a dictator before an international
tribunal could send a dangerous signal.

Moreover, given that all states involved in the tribunal’s founding
group are also part of the ICC, the compromise agreed to on June 24
undermines the credibility of arrest warrants already issued by the
International Criminal Court (ICC) — particularly those against
Putin and Israeli Prime Minister Benjamin Netanyahu. It remains
unclear who exactly the tribunal’s creators envision as defendants,
especially since aggression is legally classified as a “leadership
crime.” Still, the tribunal will retain the ability to prosecute
individuals who have left office, as well as key ministers and
military commanders who remain in positions of secondary authority in
Moscow and Minsk.

The tribunal’s dependence on Ukrainian officials to determine the
list of suspects could also become a source of criticism and raise
legitimacy concerns. It is crucial the tribunal not repeat
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mistakes of the Special Tribunal for Lebanon, which was dissolved
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December 31, 2023, after issuing only a single conviction in absentia,
one related to the 2005 assassination of former Lebanese Prime
Minister Rafik Hariri.

Is a “compromise” tribunal better than none at all?

Delays in the tribunal’s formation risk eroding support for its very
existence, and there is a real chance it could prove ineffective. But
international criminal justice is always a long game. When it comes to
prosecuting leaders of powerful states, success stories are rare. Many
dictators and aggressors have evaded trial altogether. Yet even a
limited tribunal can have a meaningful impact. It may become the first
genuine judicial process for the crime of aggression since Nuremberg
and Tokyo, keeping global attention on the issue.

Many dictators and aggressors have evaded trial altogether.

The tribunal could also play a vital role during a potential future
political transition in Russia. Cooperation with the tribunal may
become a precondition for reintegrating Russia into the international
community. Indeed, comprehensive justice, including accountability
through this tribunal, would likely only be possible following such
reintegration. Its creation avoids the false binary between inaction
today and hypothetical justice “tomorrow.”

_Gleb Bogush [[link removed]] is research
fellow at the Institute for International Peace and Security Law,
University of Cologne [[link removed]]._

_The Insider [[link removed]] is an online publication
specializing in investigative journalism, fact-checking, and exposing
fake news. It was founded by independent Russian journalist Roman
Dobrokhotov._

* the crime of aggression
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* ICC
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* Vladimir Putin
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* Russia
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* Ukraine
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* Nuremberg tribunals
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