A team of international lawyers worked on the creation of the Tribunal from the Ukrainian side. From the very beginning, it was Ambassador-at-Large Anton Korynevych, later he was joined by then-Ministry of Justice employees Iryna Mudra, Mykola Yurlov and their teams. The group that worked on the Tribunal included legal advisors — representatives of the Foreign Ministries of their countries.
The Ukrainian team in Riga after the next meeting of the group working on the creation of the Special Tribunal: (left) Ambassador at Large Anton Korynevych, (center) Head of the delegation, Deputy Head of the Special Tribunal Iryna Mudra, (far right) Director of the Department of International Cooperation of the Ministry of Justice Zakhar Tropin and his deputy Mykola Yurlov. The 12th meeting of the group on the establishment of the Special Tribunal, which took place in Riga at the end of December 2024.
The group had to find its own way. The classic path was for the International Tribunal to be established by the UN Security Council, but Russia would veto this decision. In addition, they wanted to be able to try Russian President Vladimir Putin, who is responsible for the aggression. Only an International Tribunal established by the UN Security Council or the International Criminal Court (ICC) can try a sitting president.
So at first, Western partners, in particular the G7 countries, did not want to create the Tribunal at all. Then they did not want to give it the authority to prosecute Putin, as well as the Russian Prime Minister and Foreign Minister. Part of the group was against trying the criminals without their presence, Ukrainian representatives insisted that this would not be able to punish anyone, because Russia would refuse to extradite anyone.
On February 22, 1993, the UN Security Council unanimously votes in favor of Resolution 927, which established the International Criminal Tribunal for the former Yugoslavia.
Getty Images / «Babel'»
The partners also proposed that the Tribunal be based on Ukrainian legislation. Ukraine was against judges passing sentences on attacks on Ukraine “in the name of Ukraine”. Kyiv was particularly helped in defending its position by representatives of Switzerland, the Czech Republic, Belgium, Lithuania, Latvia, Estonia, Luxembourg, Romania, and Liechtenstein.
How will the tribunal be established?
The Tribunal (in essence, an international organization) will be established on the basis of an agreement between Ukraine and the Council of Europe. This agreement must be ratified by the Verkhovna Rada of Ukraine. The agreement is accompanied by the Statute of the Special Tribunal, which will stipulate what is considered a crime of aggression and how the Tribunal should operate. Another document is an expanded partial agreement on the establishment of the Tribunal, which will be signed by states that are not members of the Council of Europe. It is expected that Japan, Canada, Australia, Costa Rica, Guatemala and other countries will sign the agreement.
If at the beginning of the negotiations on the establishment of the Tribunal, the partners insisted that it be guided by Ukrainian legislation, now the Tribunal will be guided primarily by its Statute and international law. If the Statute and international law do not contain answers to the Tribunalʼs questions, then the judges and prosecutors will be guided by Ukrainian law, as well as the practice of international tribunals for Yugoslavia, Rwanda, and others.
The former president of Yugoslavia (and then Serbia) Slobodan Milosevic, despite doubts, ended up on trial at the International Tribunal.
Getty Images / «Babel'»
Where will the Tribunal sit?
In the Netherlands, namely in the traditional capital of justice — The Hague. After the establishment of the Tribunal, the Netherlands will conclude a separate agreement with it, which will allocate a building for it. It is not yet known in which building it will be located.
Who exactly will fall under the jurisdiction of the Tribunal?
The crime of aggression is a leadership crime, so the Tribunal will not try ordinary soldiers or even brigade commanders. The Tribunal will prosecute the political and military leadership — those who made the decision to attack Ukraine. This includes at least 20 Russian political and military leaders. And, of course, Russian President Vladimir Putin.
Will Putin be tried?
While he is president, no. But the Tribunal will be able to investigate Putinʼs actions.
Ukraine has convinced its partners that the Tribunal should investigate the actions of the “troika”: President Vladimir Putin, Prime Minister Mikhail Mishustin, and Foreign Minister Sergei Lavrov — up to the stage where the prosecutor writes an indictment, presents it, and hands it over to the investigating judge. However, they will only be able to be tried after they leave their positions.
The Tribunal could potentially investigate the actions of both Belarusian President Alexander Lukashenko and North Korean President Kim Jong Un. The former allowed Russian troops to advance on the Kyiv region through Belarusian territory, while the latter replenished the Russian army with its own fighters. Investigating Kim Jong Unʼs actions is a bit more difficult, because the Koreans have so far only fought in the Kursk region, they have not entered Ukraine. However, Ukraine insists that it was in self-defense in the Kursk region and resisted Russian aggression. If Kim Jong Unʼs involvement is proven, this Tribunal will become the only place in the world where Kim Jong Un can be prosecuted for at least one of his crimes.
North Korean President Kim Jong Un may also be subject to a special tribunal investigating the crime of aggression.
Getty Images / «Babel'»
The "troika" have been dealt with. And the rest? Will they need to be arrested to be tried?
No, it is not necessary. The statute provides that the accused can be tried in absentia, that is, without his participation. This rule will work for everyone except the aforementioned “troika”. Usually, international tribunals do not allow this. For example, the International Criminal Court can only hold hearings when the criminal has been detained. The same was the case with the International Criminal Tribunal for Yugoslavia, which is why the first trials there began only three or four years after its launch.
The in absentia procedure is not new. Russian criminals in Ukraine are currently being tried under it. The same procedure was used by Croatian courts to try war crimes cases committed during the war in Yugoslavia. This procedure will allow the Tribunal to consider all the evidence and pass sentences on former Defense Minister Sergei Shoigu, Deputy Secretary of the Security Council of the Russian Federation Dmitry Medvedev, Director of the Foreign Intelligence Service Sergei Naryshkin, Chief of the General Staff Valery Gerasimov, Director of the FSB Alexander Bortnikov, and many others.
Maybe the Tribunal will thereby violate the rights of the accused?
No. First, during the trial, the accused will be represented by a qualified lawyer. For this purpose, a separate independent Department of Legal Defense will be created in the Tribunal to defend the defendants free of charge, or the defendants will be able to conclude contracts with other lawyers with whom they wish to cooperate. If, after the verdict, the accused is detained, the entire trial will be held again, but with his participation.
Will the tribunal consider that the aggression began in 2014 or 2022?
This issue will be decided by the judges. The Statute will state: “The Tribunal shall have jurisdiction over the crime of aggression against Ukraine.” The Statute does not specify the date when Russia began its aggression against Ukraine.
At the same time, the Statute defines what constitutes aggression. The definition has been expanded, so it is quite possible that Russia’s attack on Ukraine’s Crimea and Donbas in 2014 also falls under the jurisdiction of the Tribunal. At least the International Center for the Prosecution of the Crime of Aggression against Ukraine (ICPA), which has been operating in The Hague since 2023, has been collecting evidence of Russian crimes since 2014.
The first days of Russian aggression in Ukrainian Crimea, February 2014. In the photo: Russian military personnel without chevrons or any identifying marks.
Getty Images / «Babel'»
How will cases reach the Tribunal?
The Prosecutor General of Ukraine will decide which cases and against whom to transfer to The Hague. The ICPA Center will transfer all materials to the Prosecutor Generalʼs Office. In addition, the Prosecutor Generalʼs Office has a major case on Russian aggression: the Ukrainian prosecutorʼs office is documenting the crime of aggression and already has 735 suspects. So the Tribunal will not conduct pre-trial investigations from scratch, and this, according to the Ukrainian team, can save time and resources for the investigation.
If Putin is detained, who will try him first — the International Criminal Court or the Tribunal?
The International Criminal Court will be the first. It will initially consider the case, and the Tribunal will suspend the investigation and resume it only after the ICC verdict. It is assumed that the Tribunal and the ICC will cooperate.
How will judges and prosecutors be elected?
They will be delegated by the states that create the Tribunal. They will form a steering committee from representatives of the founding states. The states will nominate their candidates for the positions of judges and prosecutors, and the committee will vote for them. It is planned that the case in the first instance will be considered by three judges, and the appeal by a chamber of five judges. Ukraine will also be able to delegate judges and prosecutors to the Tribunal. It is unlikely that the states will agree on a Ukrainian prosecutor, but Ukrainians will be able to join the prosecutorʼs team.
How will the Tribunal punish the guilty?
Up to 30 years in prison or life imprisonment. Also provided is confiscation of personal assets located outside Russia and a fine. The amount of the fine will be determined by the judges.
When will the Tribunal start operating?
On paper, it will be created after the Verkhovna Rada ratifies the agreement between Ukraine and the Council of Europe. Perhaps as early as 2025, the Tribunal will receive premises in The Hague and will be able to purchase services. However, it will not be able to start an investigation yet.
In fact, the Tribunal will become operational when it receives adequate funding: according to an optimistic estimate, this is 2026. This requires that some countries sign an expanded agreement, as well as an agreement on cooperation with the Tribunal, and ratify them.
These agreements will mean that states have committed to funding the Tribunal, as well as handing over suspects to it. The size of the contributions will most likely be determined according to the Council of Europe scale, which will take into account the population of each country. It is not yet known how many countries will have to ratify the agreement for the Tribunal to start operating.
Will Interpol help the Tribunal search for Putin and other suspects?
This is a difficult question. The Tribunal could sign a cooperation agreement with Interpol. But experience shows that Interpolʼs cooperation with the International Criminal Court is not very effective.
How long will the Tribunal exist?
When the Tribunal has considered all its cases, including those in absentia, it should be dissolved. If after that any of the convicts who were not present at the sessions are detained, a special Residual Mechanism for the investigation of the crime of aggression will remain at the Council of Europe.