Special Tribunal Against Russia, Explained

As Russia continues to bomb Ukraine and destroy its infrastructure, Kyiv is promoting the creation of the Special Tribunal for the Crime of Aggression against Ukraine.

In an interview with Kyiv Post, Ukraine’s Special Envoy Anton Korynevych explained the general idea of the Tribunal, now supported by a host of prominent figures and institutions, including in the EU.

In this overview, we elucidate five facts about the Tribunal that are central to its creation and running in a simple way.

Fact 1. The Special Tribunal is akin to the Nuremberg trials

The Special Tribunal’s main purpose is to hold Russian culprits, foremost President Vladimir Putin, Minister of Foreign Affairs Sergey Lavrov, Prime Minister Mikhail Mishustin, Minister of Defense Sergey Shoigu, and other top officials accountable for the crime of aggression – i.e. a large-scale premeditated murder that entails the plotting and waging of aggressive war, branded as a supreme crime during the post-WWII Nuremberg trials.

These inquiries took place between Nov. 20, 1945 and Oct. 1, 1946, when the Allies formed the International Military Tribunal. A total of 21 of the most important surviving leaders of Nazi Germany in the political, military, and economic spheres, as well as six German organizations, were tried, with many observers believing this event to be an important contribution to German’s collective guilt.

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While the structure of the new Tribunal is not yet fully devised, Ukraine has already declared that it will be based on the norms and approaches applied by the International Criminal Court and set out in its Rome Statute.

It will also encourage states and intergovernmental and non-governmental organizations to contribute funds, equipment, and services to the Special Tribunal, including expert personnel.

It is slated to consist of a Trial Chamber and an Appeals Chamber, the Prosecutor, and a Registry, servicing the Chambers, the Office of the Prosecutor and Defense.

Fact 2. The Special Tribunal complements the International Criminal Court’s (ICC) activities

The establishment of the Tribunal does not in any way obstruct the ICC’s investigation of Russia’s war crimes in Ukraine, including genocide, crimes against humanity, and war crimes.

Forty-three states have already submitted their requests to review the situation in Ukraine. Kyiv also gave consent to the ICC’s jurisdiction over all crimes committed during the armed conflict since 2014.

However, while the ICC remains a key body of international criminal justice, it cannot investigate and prosecute individuals for the crime of aggression against Ukraine unless both states ratify the Rome Statute and the Kampala Amendments on the crime of aggression, or the act of aggression is established in a UN Security Council resolution and the Security Council refers the situation to the ICC.

Accordingly, the establishment of the Special Tribunal will not affect the jurisdiction of the ICC. It will only serve to complement its work.

Fact 3. The Special Tribunal’s completion will take time

The Tribunal can and will be a time-consuming endeavor, not least because it requires getting the governments of many countries on-board. Some are less comfortable with the idea than others, which requires advocacy and communication.

Ukrainian authorities have already established many contacts with Western governments, civil society, organizations, and the media. However, much more needs to be done in order to promote the establishment of such a Tribunal.

To accelerate the process, Ukraine is considering opening the Interim Prosecutor’s Office, which will be staffed with prosecutors from the Ukrainian Prosecutor General’s Office and will be working on procedural management of the investigation of the crime of aggression under the Criminal Code of Ukraine.

The establishment of the Tribunal will also take time as it requires arresting and trying Russian officials as, per the official plan, the accused shall be tried in their presence (even though Korenyvych says that Russia could be tried in absentia).

While the Nuremberg trials took less than one year to complete, in today’s war and international law context, such a time frame looks somewhat optimistic.

The trial of Slobodan Milošević and Ratko Mladić, who were charged, among other things, with facilitating the 1995 genocide in Srebrenica, shows that it takes a lot of time to serve justice.

While Milošević died in 2006 without facing the verdict, Mladić was convicted on Nov. 22, 2017, 22 years after slaughtering Bosniak Muslims en masse.

Fact 4. All crimes shall be punished

Russia’s crimes in Ukraine come in all different shapes and forms, and the crime of aggression, for which the Special Tribunal is being created, is just one of them.

A report commissioned by the Independent International Commission of Inquiry on Ukraine of the United Nations this month highlighted many atrocities in Kyiv, Chernihiv, Kharkiv, and Sumy Oblasts committed by the Russians: from sexual violence performed on a four-year-old child and an elderly woman to torturing people in rooms with no light or ventilation.

These crimes will neither be forgotten nor overlooked in the name of punishing the crime of aggression only.

Furthermore, while Ukraine is not ready to take Russia to court for carrying out genocide just yet, President Zelensky’s Office is not ruling out such a possibility.

“There is incitement to genocide, it’s just a fact – open RIA Novosti and read it. They simply say that we don’t exist,” Korynevych emphasized recently.

Fact 5. It aims to serve justice beyond Ukraine 

Russia’s war on Ukraine is not the only ongoing armed conflict worldwide, including in the countries of the Global South where many culprits must be held accountable.

The Tribunal paves the way for the establishment of similar institutions to serve justice to the victims of other evil individuals such as Bashar Al-Assad, supported by Russia, and show dictators worldwide, of which there is a raft, that wars and war crimes are always punishable – even if it takes time to complete the task.

Ukraine and its partners are already holding discussions on the issue in the United Nations with other countries. The fact that an overwhelming majority of them voted to condemn Russia’s annexation of Ukrainian territory, leaving it in the group of rogue states such as North Korea, Belarus, Nicaragua, and Syria, shows that countries around the world understand the evil nature of Russia’s invasion of Ukraine and the need to punish it accordingly.