Russia committed the first crime of aggression against Ukraine back in 2014 by occupying Crimea, but holding Russia’s high-ranking officials accountable became one of the major priorities for Ukraine’s international policy after Russia’s full-scale invasion.
Russia can veto resolutions in the Security Council of the UN, and the International Criminal Court still doesn’t have jurisdiction to judge for the crime of aggression (Plus, Russia called off its signature from the Rome Statute after the annexation of Crimea), so Ukraine and its allies searched for other options to get justice.
In January 2023, the Ukrainian delegation, along with the representatives of the European Commission and the Council of Europe and other legal experts, led the first meeting of the Core Group for Establishing a Special Tribunal for the Crime of Aggression against Ukraine within the framework of the Council of Europe.
At the beginning of February 2025, the Core Group held its 13th meeting. The European Commission reported that the participants laid down legal foundations for the establishment of the tribunal and agreed on key elements of the “Schuman draft Statute,” the core legal document of the future tribunal. The final meeting is set to happen in March.
While the Council of Europe and Ukrainian officials hoped the tribunal would be established this year, President Donald Trump made a sharp turn in the USA’s views on Ukraine and refused to acknowledge that it was Russia and Russian aggression that started the war in the country.
Gwara Media talked to legal experts about the future tribunal and new and old challenges awaiting Ukraine and the Core Group in holding Russia accountable through it.
Tribunal has to be established urgently
American representatives in the UN refused to call Russia an aggressor and, on February 24, voted against Ukraine’s resolution condemning Moscow’s aggression.
Andrii Mikheiev, an international law expert at the International Center for Ukrainian Victory, says that the current American position is not a surprise (e.g. because the USA also withdrew its signature from the Rome Statute of the ICC). Nevertheless, he notes, the matter of establishing a tribunal can become leverage for future negotiations that America will actively utilize — mainly during bilateral talks with Russia.
“It is rather easy to predict that the issue of the tribunal will be brought up at negotiations,” Mikheiev says. “It is not established yet, so this idea could be cheaply and painlessly sold: here, we [USA — ed.] are agreeing that the tribunal will not happen, and you [Russia] are yielding something else to us.”
“It’s a very likely scenario, which is why now, the most important question of the tribunal’s creation isn’t its Statute, or key institutions, or regulations, but the speed [with which it can be established].”
Mikheiev says that it’s vital to ensure the tribunal exists before it comes up as leverage in negotiations. “The tribunal that’s already established, has a Statute, a known list of judges and participant countries will be very hard to eliminate. It’s almost impossible to force all countries to withdraw their signatures. At the same time, it’s very easy to get rid of the tribunal that doesn’t exist yet, the mere idea of it.”
On February 21, The Telegraph wrote, referring to the Western official, that during the 13th meeting of the Core Group, American envoys refused to label Russia as an “aggressor.” Without acknowledging aggression, they cannot participate in granting the tribunal jurisdiction to investigate said aggression. European diplomats told journalists that the loss of the USA would be a “major blow” to the project.
“Ukraine uses the European system of human rights protection, so the representation of [countries] on the European continent matters for us first and foremost,” Oksana Cherviakova, representative of the Ombudsman in Kharkiv Oblast, told Gwara. “But we’d want to involve as many countries as possible because then they’ll accept responsibilities to physically arrest the criminal and transfer them [to the established court.]”
Cherviakova stresses that the massive involvement of the Council of Europe and 40 countries is already a signal that “military and political leadership of the aggressor country will be held accountable.”
Russian disinformation
While Vladimir Putin, enabled by the new direction of Washington, is slowly leaving political isolation, and Europeanleaders like Orban and Fico want Ukraine to be “a buffer between Russia and the West” and say Zelenskyy “needs this war,” lawyers and human rights experts Gwara talked to empathize the importance of speaking out about Russian war crimes more and advocating for holding Moscow accountable.
During three years of full-scale invasion, Russia killed 2,809 people and destroyed over 37,000 residential buildings only in Kharkiv Oblast.
Tamila Bespala, legal expert of Kharkiv Human Rights Protection Group, says that, in her experience of talking to lawyers from other countries, “not all believe that we have a real war, that all crimes that were committed here really have been committed.” Resolving this is only possible by shedding more light on the consequences of the Russian aggression, Bespala believes.
Russia systemically lies and denies responsibility for committing war crimes (or their overall existence) in different languages, using different mediums. Oksana Cherviakova notes that these methods of hybrid war are so efficient in Europe because “people are not prepared and not protected.”
“In Ukraine, people already have experience [of dealing with, e.g. misinformation], they live through it and overcome challenges. Europe, being away from the frontline, has news… But the farther they are from the frontline, the more credibility news from Ukrainian, Russian, and other sources have,” Cherviakova says. “And, regarding the tribunal, of course, part of the aggressor’s efforts will be dedicated to opposing its creation. But that doesn’t mean we have to stop and do nothing.”
Andrii Mikheiv says that to counter the influence of Russian narratives, Europe has to “communicate that the tribunal will be created as much as possible. Communicate that no peace agreements, no compromises that might be achieved now, no ceasefire can cancel out the crimes that have already been committed.”
“Jurisprudence and justice have to be beyond politics, beyond political compromises and above them. This is why, no matter what, the tribunal has to be created, it has to work, and its work has to lead to sentences. For Europe, it’s important to show its conviction in this matter.”
Two sides of Core Group’s confidentiality
For most of the experts Gwara talked to, the turn in the direction of the States’ foreign affairs policy, including at the 13th Core Group meeting, wasn’t a surprise. European officials, according to the Telegraph, were “shocked,” finding out about the latter.
Countries helping Ukraine with prisoners of war exchanges with Russia or helping return the children Russia abducted from occupied territories of Ukraine often don’t want the fact of their assistance to be public. Similarly, few people know what 40 states are included in the Core Group. Confidentiality protects participating envoys.
Tamila Bespala believes that the pressure Russia might put on the countries supporting the tribunal is one of the threats to its future existence.
Cerviakova agrees that limited public information about participants and about the contents of the future tribunal’s Statute is necessary to “minimize obstacles” to its establishment. “The less information those who want to disrupt the process have, the fewer obstacles will exist during creation and voting for [the Statute].”
Andrii Mikheiev also agrees that the confidentiality of the Core Group makes sense but says there’s a hypothetical risk to it: the nature of the Core Group’s meetings might not be known to leaders of the key ruling structures of the envoys’ countries.
“What countries’ envoys are saying, doing, what conclusions they’re coming to [at these meetings] has to be known to the leadership of their countries,” Mikheiev stresses. “For instance, if Germany (theoretically!) is opposing establishing a procedure for criminal proceedings in absentia, it shouldn’t be because one person, one envoy, opposes it. It has to be a thought-out position of the Bundestag, German Ministry of Foreign Affairs, Ministry of Justice that is conveyed through this envoy.”
Accountability and transparency, established in this way, will make stances of the participating states predictable and consistent and will allow to find a right focus of diplomatic cooperation with them, Mikheiev believes.
Immunity under international law and other concerns
The special tribunal is capable of overcoming the immunity of Russian high-ranking politicians: Putin’s, Prime Minister Mistushyn’s, and the head of Russia’s Foreign Affairs Ministry, Lavrov’s. Experts Gwara talked to say that the issue of immunity is the most controversial question in the tribunal’s establishment.
First, countries’ envoys fear that such regional Tribunals will, by precedent, be created by those who would want to investigate their countries’ political leadership for the crime of aggression. Secondly, envoys are anxious about possible ramifications from Russia’s side.
Finally, the legitimacy of the future tribunal’s decisions about arresting or detaining political leaders — and any other verdicts — can be debated. Currently, the tribunal’s establishment is supported by only 40 states, which means it doesn’t have proper international coverage as the previous ones did (e.g., the Rome Statute was ratified by 60 countries).
“We’re talking about 40 states under the Council of Europe. While the Council is a powerful organization, it is regional. Not enough countries not from Europe support the tribunal,” Andrii Mikheiev says. “But there are big hopes that the other will join after it is established.”
Another challenge, Mikheiev says, is the lack of consensus in regards to trying the accused in absentia. The past international tribunals and the ICC almost didn’t have issues with arrest and extradition of the suspects and/or accused, he says, so in absentia procedures weren’t necessary.
“This time, we won’t see defendants in court,” Mikheiev says. Without them, he continues, there will be no verdicts, and the proceeding will eventually stop.
He adds that this matter is important not only for sentencing but also for establishing additional financial obligations for the crime of aggression: “Apart from imprisonment, there has to be confiscation of assets and fines and a founding of the compensation fund for victims of aggression, at least via the ICC model.”
Not enough attention is paid to finding people guilty of the crime of aggression post-mortem [after death]. “Aggression is the supreme crime, the father of all other crimes. To simply stop the investigation because the person [accused of aggression] is dead is wrong. There has to be at least a commission’s conclusion, without a full verdict, that, if the [accused] person were alive, they would be found guilty. A quasi-verdict of sorts. Then, justice will be found.”
As of today, the Council of Europe and Europcomission — as is the Ukrainian political leadership — keeps the establishment of the Special Tribunal in focus. In 2023, the Council of Europe created the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine and is currently developing a mechanism for damage compensation. General Secretary of CoE Alain Berset said to European Pravda, Ukrainian media, that the Council’s ambition is to establish the Tribunal in 2025.
When ICC orders aren’t working — Mongolia accepted Putin’s plane even having ratified Rome Statute, and UN’sSecretary-General António Guterres attended BRICS summit in Russia — and international relations with Russia become more and more acceptable, Ukraine’s society and leaders put a lot of hope into tribunal’s establishment and restoration of justice.
“International humanitarian law is violated by the Russian Federation every day. But for now, we do not see any consequences for that. And here, the international community has to consider what to do about it. On this level, only agreements and unity in decisions between countries can be productive,” Oksana Cherviakova says, adding:
“Ukraine demands new norms for international law with its blood. But what’s clear for Ukraine today, this outrageous unfairness; it takes time for the rest of the world to accept. To admit that existing norms do not work.”
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The project is co-financed by the governments of Czechia, Hungary, Poland and Slovakia through Visegrad Grants from the International Visegrad Fund. The mission of the fund is to advance ideas for sustainable regional cooperation in Central Europe.
The project is supported by the Ministry of Foreign Affairs of the Republic of Korea.
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