Special Tribunal for the Prosecution of the Crime of Aggression by the Russian Federation against Ukraine: Analysis of the Statute, Comparison with Historical and Contemporary International Courts, Examination of the Detention of Accused Persons, and the Impact of the UN Charter and UN and EU Resolutions

Special Tribunal for the Prosecution of the Crime of Aggression by the Russian Federation

against Ukraine: Analysis of the Statute, Comparison with Historical and Contemporary

International Courts, Examination of the Detention of Accused Persons, and the Impact of the

UN Charter and UN and EU Resolutions

Author: Denys Keshkentii, International Lawyer, Attorney in International Criminal Law

On 25 June 2025, Ukraine and the Council of Europe concluded an agreement to establish a

Special Tribunal for the prosecution of the crime of aggression committed by the Russian

Federation against Ukraine. This Tribunal aims to address jurisdictional gaps in the International

Criminal Court (ICC) and the International Court of Justice (ICJ), which are unable to effectively

prosecute the crime of aggression due to immunities of high-ranking officials and the lack of

enforceable mechanisms for implementing decisions. This article analyses the Tribunal’s Statute,

compares it with the Nuremberg Tribunal (1945–1946), the International Criminal Tribunal for the

former Yugoslavia (ICTY, 1993–2017), the objectives and mandates of the ICC and ICJ, examines

the mechanisms for detaining accused persons in the newly established Tribunal, and explores the

possibility of holding citizens of Belarus, North Korea, Iran, and other military allies of Russia

accountable for supporting the aggression.

The crime of aggression, as defined in Article 8 bis of the ICC Rome Statute, is one of the most

serious international crimes. However, existing international judicial institutions, such as the ICC

and ICJ, are limited in their ability to prosecute this crime in the context of the Russia-Ukraine war

due to Russia’s withdrawal from ICC jurisdiction in 2016 and the ICJ’s lack of jurisdiction over

individuals. The Special Tribunal, established through the agreement between Ukraine and the

Council of Europe on 25 June 2025, seeks to overcome these limitations. The article provides a

detailed examination of the Tribunal’s legal foundations, jurisdiction, enforcement mechanisms,

conditions for the detention of accused persons, the international legal context, and the potential

for holding citizens of other states accountable for facilitating Russia’s aggression.

Historical Context of International Tribunals

Nuremberg Tribunal (1945–1946)

The Nuremberg Tribunal, established by the Allied powers after World War II, was the first

international court to prosecute crimes against peace, the precursor to the modern crime of

aggression. It tried 24 high-ranking Nazi officials, establishing the principle of individual

responsibility. Key figures, such as Hermann Göring, were convicted of crimes against peace, war

crimes, and crimes against humanity, with sentences, including the death penalty, enforced by the

Allied forces. However, the Tribunal faced criticism for “victors’ justice” due to its failure to

address crimes committed by the Allies. Nuremberg set a precedent for prosecuting aggression,

but a modern tribunal requires broader legitimacy.

International Criminal Tribunal for the Former Yugoslavia (ICTY)

The ICTY, established by the UN Security Council in 1993 (Resolution 827), investigated crimes

committed during the Balkan wars and concluded its work in 2017. It prosecuted war crimes,

genocide, and crimes against humanity, convicting individuals such as Radovan Karadžić (2016, 40

years’ imprisonment) and Ratko Mladić (2017, life imprisonment). Enforcement of its decisions

relied on cooperation with the EU and NATO. The absence of jurisdiction over the crime of

aggression limited its ability to address the root causes of the conflict, but the ICTY’s experience in

collaborating with regional organizations is valuable for the new Tribunal.

International Criminal Court (ICC)

The ICC, established in 2002 under the Rome Statute (1998), is a permanent court with jurisdiction

over genocide, war crimes, crimes against humanity, and, since 2018, the crime of aggression. Its

jurisdiction is limited to member states or cases referred by the UN Security Council. Russia’s

withdrawal from ICC jurisdiction in 2016 precludes the prosecution of its officials for aggression. In

2023, the ICC issued an arrest warrant for Vladimir Putin for war crimes, and in 2024, warrants

were issued for Sergey Kobylash, Viktor Sokolov, Sergey Shoigu, and Valery Gerasimov for war

crimes (Article 8(2)(b)(ii)) and crimes against humanity (Article 7(1)(k)). However, the lack of

enforcement mechanisms renders these actions ineffective, highlighting the need for a Special

Tribunal.

International Court of Justice (ICJ)

The ICJ, established in 1945 as the principal judicial organ of the United Nations, adjudicates

disputes between states but lacks jurisdiction over individuals. In the case of Ukraine v. Russia

(2022), the ICJ ordered Russia to cease hostilities, but the decision was ignored due to the absence

of enforcement mechanisms (International Court of Justice, 2022). This underscores the need for a

tribunal to address individual responsibility.

Council of Europe

The Council of Europe, established in 1949, is not a judicial body but plays a key role in promoting

human rights and the rule of law. Following Russia’s expulsion in 2022, it unites 46 member states

and coordinates the establishment of the Special Tribunal through the European Prosecutors’

Network (EPN), ensuring regional support and legitimacy.

Norms of the UN Charter, UN Resolutions, and EU Measures Regarding Russia’s Actions Since

2014

UN Charter

The UN Charter provides the legal foundation for condemning Russia’s aggression:

- Article 2(4): Prohibits the use of force against the territorial integrity of states. Russia’s annexation

of Crimea and actions in eastern Ukraine since 2014 violate this provision.

- Article 2(7): Prohibits interference in the internal affairs of states, underscoring Ukraine’s

sovereignty and condemning Russia’s support for separatism.

UN Resolutions

- General Assembly Resolution 68/262 (27 March 2014): Condemned the annexation of Crimea as

illegal, calling for non-recognition of its altered status.

- Security Council Resolution 2202 (17 February 2015): Endorsed the Minsk Agreements, the nonimplementation of which by Russia highlights its violation of international law.

- General Assembly Resolution ES-11/1 (2 March 2022): Condemned Russia’s full-scale invasion,

demanding an end to hostilities.

EU Measures

- European Parliament Resolution (13 March 2014): Condemned the annexation of Crimea and

supported Ukraine’s sovereignty.

- Sanctions (2014–): Economic restrictions against Russia, asset freezes, and export/import bans.

- European Peace Facility (2022): Allocated €500 million for lethal weapons to Ukraine.

These norms and measures provide the legal basis for the Special Tribunal’s activities.

Analysis of the Special Tribunal’s Statute

The Tribunal’s Statute, published on 23 June 2025 by Iryna Mudra, includes:

- Article 5: Jurisdiction over the crime of aggression since 2014 (annexation of Crimea).

- Article 8: Economic sanctions, asset freezes, and travel bans.

- Article 12: Cooperation with the Council of Europe through the EPN.

- Article 15: Engagement of the EU and G7 for the enforcement of decisions.

However, the Statute has faced expert critiques:

- Jennifer Trahan: The “hybrid” model may conflict with Ukraine’s Constitution (Article 125) and

requires a UN mandate to overcome immunities.

- Philippe Sands: Jurisdiction should cover the period from 2014 onward.

- Carrie McDougall: Proposes a residual mechanism for long-term cases.

- Olena Temchenko: Emphasizes the importance of cooperation with the ICC.

Enforcement Mechanisms

Enforcement of the Tribunal’s decisions relies on cooperation with the Council of Europe, EU, G7,

and Interpol. Precedents from arbitrations demonstrate the effectiveness of economic pressure:

- Naftogaz v. Gazprom (2018): $2.56 billion in payments from Gazprom (Stockholm Chamber of

Commerce, 2018).

- Everest and others v. Russia (2018): Up to $150 million in compensation for “de facto control” in

Crimea (Permanent Court of Arbitration, 2018).

- Ukrnafta v. Russia (2019): $44.5 million in compensation for expropriation of assets in Crimea

(Permanent Court of Arbitration, 2019).

The International Forum in Kyiv (21 August 2023) recommended a hybrid model and cooperation

with the ICC. The Ukraine Week (15–19 July 2024) supported the proposed hybrid model with

international judges. The Brussels Forum (5 February 2025) proposed the “Schuman Statute

Project” without immunities. The Lviv Forum (9 May 2025) suggested a regional approach with 39

states and cooperation with the Register of Damages. The Statute partially incorporates these

recommendations, but its regional focus limits global legitimacy.

Examination of Detention of Accused Persons

Article 10 of the Tribunal’s Statute establishes that detained persons will be held in facilities of

Council of Europe member states, in accordance with the standards of the European Convention

on Human Rights (ECHR) and the European Committee for the Prevention of Torture (CPT). The

proposed location is The Hague or other locations (yet to be determined). Transportation of

detainees will occur through international warrants and Interpol (Article 12). Enhanced measures

to prevent escape, similar to those of the ICTY, will be implemented. Pre-trial detention without a

court decision is limited to 72 hours.

Legal Challenges:

- Immunities: Complicate the transfer of high-ranking Russian officials.

- Rights of the Accused: Compliance with ECHR requirements (Article 5) and principles of lawful

detention is complex across multiple jurisdictions.

In Absentia Proceedings:

- Article 4(1): Permitted, provided proper notification and provision of defence counsel.

- In absentia proceedings do not apply to crimes carrying life imprisonment.

- All individuals convicted in absentia retain the right to a retrial.

Practical Challenges:

- Detaining accused persons (e.g., Vladimir Putin) is hindered by Russia’s unwillingness to

cooperate, with most evidence located in Russia.

- Legal Obstacles: Immunities of high-ranking officials (ratione personae) cannot be legitimately

overcome without a UN mandate.

- Legitimacy: The Tribunal’s regional basis may be perceived as a “Western” project, similar to

Nuremberg.

- Without Russia’s cooperation, the Tribunal’s effectiveness may remain symbolic. Overlap with

the ICC or the Register of Damages could lead to conflicts and loss of original evidence.

Possibility of Holding Citizens of Belarus, North Korea, Iran, and Other Russian Allies Accountable

The Special Tribunal has the potential to prosecute not only Russian citizens but also individuals

from states that facilitate aggression against Ukraine, such as Belarus, North Korea, and Iran,

which provide Russia with military, logistical, or economic support, potentially qualifying as

complicity in the crime of aggression.

Legal Basis

- Article 8 bis of the Rome Statute: The crime of aggression includes planning, preparation,

initiation, or execution of an act of aggression that violates the UN Charter. Complicity (Article

25(3) of the Rome Statute) encompasses aiding, abetting, or providing means for the commission

of a crime.

- Tribunal Statute (Article 5): Jurisdiction covers the crime of aggression committed since 2014 and

is not limited by the nationality of the accused if their actions contributed to the aggression.

The Nuremberg Tribunal prosecuted individuals who were not German citizens but facilitated Nazi

crimes. Similarly, the ICTY prosecuted individuals of various nationalities for complicity in Balkan

crimes.

Belarus plays a key role in supporting Russia’s aggression:

- Providing territory for the invasion of Ukraine in February 2022.

- Conducting joint military exercises and hosting Russian troops.

High-ranking Belarusian officials, such as Alexander Lukashenko, could face prosecution for

complicity if the Tribunal establishes their direct contribution to planning or executing the

aggression.

North Korea supplies Russia with weapons, including artillery shells and ballistic missiles, used in

Ukraine, violating UN Security Council resolutions (e.g., Resolution 1718, 2006). This could qualify

as aiding the crime of aggression. Potential accused: Officials responsible for arms exports, if their

actions are proven.

Iran supplies Russia with drones (Shahed-136) and related production technologies, used in

attacks on civilian targets in Ukraine. This could constitute complicity in the crime of aggression.

Potential accused: High-ranking officials of the Islamic Revolutionary Guard Corps.

Other Allies: States or non-state actors providing financial, logistical, or military support (e.g.,

through mercenaries or cyberattacks) could also face prosecution if their actions meet the criteria

for complicity.

The Tribunal’s Statute does not explicitly address jurisdiction over citizens of third states, which

may require additional agreements with Council of Europe member states or a UN mandate.

Collecting evidence against officials from Belarus, North Korea, or Iran is complicated by their

closed regimes and refusal to cooperate. Prosecuting citizens of third states could undermine

international support for the Tribunal, particularly among Global South countries. The absence of

modern precedents for prosecuting third-state citizens for aggression creates legal uncertainty.

Recommendations

- Expand Article 5 of the Statute to explicitly include complicity by citizens of third states.

- Cooperate with the ICC, with clear delineation of mandates, to investigate war crimes related to

arms supplies.

- Engage international organizations (e.g., the UN) to legitimize the prosecution of Russia’s allies.

Conclusion

The Special Tribunal is an innovative instrument for prosecuting the crime of aggression, grounded

in the norms of the UN Charter (Articles 2(4), 2(7)), UN resolutions (68/262, ES-11/1, 2202), and EU

support. Its strengths—clear regional jurisdiction, cooperation with the Council of Europe and ICC,

and a hybrid model—enhance its prospects for success. The potential to hold citizens of Belarus,

North Korea, Iran, and other Russian allies accountable strengthens the Tribunal’s scope but

requires clarification of jurisdiction and international support. Weaknesses, such as immunities,

Russia’s non-recognition, and practical and logistical challenges, necessitate additional solutions

to ensure effectiveness. Detention of accused persons in accordance with ECHR standards and in

absentia proceedings are feasible but require clear procedures and international cooperation.

List of links:

- Amnesty International. (2023). Ukraine: Establishment of the special tribunal for the crime of

aggression must ensure victim-centred justice.

- Council of Europe. (1999). European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (CPT) Standards. https://www.coe.int/en/web/cpt/standards

- Council of Europe. (2025). Agreement on the establishment of a Special Tribunal for the Crime of

Aggression against Ukraine (document № 0900001680b678ca).

https://www.coe.int/en/web/portal/-/the-council-of-europe-and-ukraine-sign-an-agreement-onestablishing-a-special-tribunal

- European Convention on Human Rights (ECHR). (1950).

https://www.echr.coe.int/Documents/Convention_ENG.pdf

- European Council. (2025). Restrictive measures against Russia.

https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-ukraine/

- European External Action Service. (2022). EU support to Ukraine.

https://www.eeas.europa.eu/eeas/ukraine_en

- European Parliament. (2014). Resolution on the situation in Ukraine.

https://www.europarl.europa.eu/doceo/document/TA-7-2014-0248_EN.html

- Heller, K. J. (2022). Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea.

http://opiniojuris.org/2022/03/07/creating-a-special-tribunal-for-aggression-against-ukraine-is-abad-idea/

- International Court of Justice. (2002). Arrest Warrant of 11 April 2000 (Democratic Republic of the

Congo v. Belgium). https://www.icj-cij.org/case/121

- International Court of Justice. (2022). Ukraine v. Russia. https://www.icj-cij.org/case/182

- International Criminal Court. (1998). Rome Statute. https://www.icc-cpi.int/resourcelibrary/documents/rs-eng.pdf

- McDougal, C. (2023). Prosecuting the crime of aggression: Challenges and opportunities. Journal

of International Criminal Justice, 21(3), 345–367.

- Permanent Court of Arbitration. (2018). Everest and others v. Russia. https://pcacpa.org/en/cases/

- Permanent Court of Arbitration. (2019). Ukrnafta v. Russia. https://pca-cpa.org/en/cases/

- Sands, P. (2022). The crime of aggression and the Ukraine conflict. The Guardian.

https://www.theguardian.com/commentisfree/2022/mar/15/ukraine-russia-crime-aggression

- Sterio, M. (2024). Hybrid tribunals and the crime of aggression. *Case Western Reserve Journal of

International Law, 56*(1), 123–145.

- Stockholm Chamber of Commerce. (2018). Naftogaz v. Gazprom. https://sccinstitute.com/

- Temchenko, O. (2023). Special Tribunal for Ukraine: Differences from Nuremberg and ICTY.

https://gurt.org.ua/articles/

- Trahan, J. (2023). Why a hybrid tribunal is not the answer. Just Security.

https://www.justsecurity.org/

- United Nations. (1945). Charter of the United Nations. https://www.un.org/en/about-us/uncharter

- United Nations General Assembly. (2014). Resolution 68/262: Territorial integrity of Ukraine.

https://undocs.org/A/RES/68/262

- United Nations General Assembly. (2022). Resolution ES-11/1: Aggression against Ukraine.

https://undocs.org/A/RES/ES-11/1

- United Nations Security Council. (2006). Resolution 1718: Non-proliferation/Democratic People’s

Republic of Korea. https://undocs.org/S/RES/1718

- United Nations Security Council. (2015). Resolution 2202: Minsk Agreements.

https://undocs.org/S/RES/2202

- United Nations. (1993). Statute of the International Criminal Tribunal for the Former Yugoslavia.

https://www.icty.org/en/documents/statute

- United Nations. (2017). Completion strategy report: ICTY.

https://www.icty.org/en/about/completion-strategy