Over two years into Russia's full-scale invasion of Ukraine, the international community is still grappling with how to hold Moscow accountable for the crime of aggression on Ukrainian soil. Amid various proposals, one idea gaining traction is the creation of a special tribunal based on a treaty between Ukraine and the Council of Europe (CoE) or its member States. This approach could provide a robust legal framework to prosecute high-ranking Russian officials, circumventing the limitations of the International Criminal Court (ICC) in addressing the crime of aggression.
The Necessity of a New Tribunal
Since the invasion's outset, discussions about establishing a tribunal to prosecute Russian aggression have been ongoing. The ICC's jurisdictional constraints necessitate an alternative mechanism. While some proposals suggest a tribunal formed by a treaty between the United Nations and Ukraine, a special tribunal involving the CoE represents the latest viable option.
In April, during the Ministerial Conference on Restoring Justice for Ukraine, 44 participating States endorsed a political declaration. This declaration called for a solid legal foundation and broad international support to establish the special tribunal. European Commissioner for Justice Didier Reynders highlighted discussions around a potential multilateral or bilateral agreement between the CoE and Ukraine as a legal basis for this tribunal. By May, the CoE Committee of Ministers had tasked the Secretary General with preparing the necessary documents to facilitate consultations on a possible draft agreement between the CoE and Ukraine.
International vs. Domestic Tribunals
To effectively prosecute high-ranking Russian officials, the tribunal must be perceived as sufficiently "international." This means it cannot be part of any domestic legal system and must act on behalf of the "international community as a whole." The tribunal's establishment must involve more than one State or an international organization and a State, and it must be based on international law.
Historically, international tribunals like the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were created by UN Security Council resolutions, demonstrating that the Security Council's authority under Chapter VII of the UN Charter could establish such bodies. In contrast, tribunals like the Extraordinary African Chambers and the Kosovo Specialist Chambers, although created by international agreements, are formally integrated into domestic legal systems and derive their judicial powers from national laws, rendering them domestic rather than international.
Creating a Truly International Tribunal
To overcome the personal immunities of acting state leaders, the tribunal must be "truly international." This concept extends beyond the mere involvement of multiple States. According to the International Criminal Court (ICC), a truly international court acts on behalf of the international community as a whole, not just specific States.
For example, the ICC, established by a multilateral treaty with at least 60 State parties, and tribunals created by the UN Security Council, such as the ICTY and ICTR, are considered truly international. These tribunals operate independently of any single nation’s legal system and represent the collective will of the international community. The involvement of the Security Council or the broad endorsement from the General Assembly further legitimizes such tribunals.
The Council of Europe’s Role
A tribunal based on a treaty between Ukraine and the CoE, or between Ukraine and CoE member States, can be considered international if it is not embedded in any domestic legal system. The CoE has a track record of involving non-member States in its treaties, suggesting that a special tribunal's treaty could be open to global participation. This inclusivity is crucial to achieving the required 60 State ratifications, similar to the Rome Statute of the ICC, ensuring the tribunal’s broad international legitimacy.
The CoE’s potential involvement in establishing this tribunal is a promising development. By creating a framework that allows non-member States to join, the CoE can enhance the tribunal’s legitimacy and effectiveness. The CoE Committee of Ministers has already authorized exploring options for an expanded agreement that includes support, financing, and administration from non-member States.
Conclusion
As Ukraine continues to seek justice for the aggression committed on its territory, the creation of an international tribunal through a treaty with the CoE offers a promising avenue. Such a tribunal would not only facilitate the prosecution of Russian officials but also reinforce the principles of international law. By ensuring the tribunal's establishment and operation are international in character, involving multiple States and open to global participation, the international community can provide a robust and legitimate response to the crime of aggression.
This tribunal's formation would signify a collective commitment to justice, transcending national boundaries and demonstrating solidarity with Ukraine. In the face of ongoing aggression, a truly international tribunal offers a path to accountability and reinforces the global legal order, ensuring that crimes of aggression do not go unpunished.
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