The new Special Tribunal for the Crime of Aggression against Ukraine is formally becoming a reality. At a meeting in Chisinau, Moldova, last month, ministers from 36 states plus the European Union agreed to support the entity.
Its “a huge and unprecedented achievement,” says Gabija Grigaitė Daugirdė, who as Lithuania's deputy minister of justice and then deputy minister of foreign affairs shepherded the process during the four long years since the first core group meeting. Now a lecturer in international law at Vilnius University, she describes this moment as “extraordinary” in international law, because it has happened as “a permanent member of the UN Security Council has been relentlessly attacking Ukraine and its civilians and has actually taken international law into hostage, because the institution [UNSC] that had to enforce international law actually was incapable of doing that”.
It is against the backdrop of that grinding war following the Russian invasion of Ukraine, with both sides causing major damage and no real prospects for peace, let alone peace talks, that the Council of Europe has taken the lead and been busy filling legal gaps. First there was a Register of Damage, then an International Claims Commission. Ukraine’s ambassador to The Netherlands Andrey Kostin – a former chief prosecutor – spoke of a web of accountability mechanisms at a recent International Bar Association meeting. The STCA – now the acronym is set – is a major element in that web.
“When you do something of this scope, in this unprecedented way, you are always under threat of being harassed, and experiencing hybrid attacks,” says Grigaitė Daugirdė. “What is important now is not to lose the moment because the aggression is still there and war is still there. So the sooner it becomes operational, the better.”
“Pissing into the wind”
At the Chisinau meeting the technical part – an enlarged partial agreement between the Council of Europe and states – was agreed by the EU and 36 states, including Australia and Costa Rica from beyond Europe. That’s well beyond the 16 needed to make a commitment for the establishment of the tribunal. However, for more than three quarters of those states who signed up, their commitment is dependent on the precise budget. And “a final budget has not been drawn up – it’s missing,” says Astrid Reisinger Coracini, Professor of International Law at the University of Vienna. At this stage, the EU reiterated its commitment of 10 million euros for an advanced team “to prepare the institutional, logistical and organisational foundations of the Special Tribunal,” over the next 24 months.
This period is described as the “skeleton phase,” by Ukrainian officials. They say during that period the “STCA’s Management Committee will be constituted and will enter into a host-country agreement with the Netherlands.” Its model is the governance of the ICC: “The Committee will function in a manner similar to that of the Assembly of States Parties to the International Criminal Court – it will make all principal decisions, including on budgetary matters, the recruitment of key personnel, and the appointment of the prosecutor and judges. It will also be able to sign agreements with states and international organizations, which will cover pivotal issues such as the arrest, transfer, or detention of indicted individuals.”
Council of Europe officials speaking on background say there are a series of workshops being held in The Hague, each tackling one of the main issues which will help define the budget parameters: individual or group trials? Witnesses and perpetrators to be interviewed online or via video? Witness protection measures? Role of the defence? All those elements will have expert input from current practitioners and guide how big the STCA budget should be. The Council hopes that this budget scoping phase will be concluded by the beginning of 2027 to enable states to fully commit and for the tribunal’s management to start the important processes of establishing the court, electing judges and a prosecutor.
But Nadia Volkova, director of the Ukrainian Legal Advisory Group, an NGO, says there are “many grey areas” to be resolved. And she puts it bluntly: “To use a crude analogy, from the get go, it's just like pissing into the wind every step of the way. They managed to push it through and they have it now, but then there is no strategy. There is only an aspiration as to where they want to be.”
The “compromise clause”
Even with a rudimentary sketch of the practical side of how it will operate, there are a myriad of issues – mainly legal – that need resolution. “I don't think the authors and the drivers of the process have the answers because a lot of it is left down to the judges under the rules and procedure,” says Volkova.
One of the “main” legal issues, Reisinger Coracini says, is how exactly proceedings will be transferred from Ukraine to the STCA. There is a “compromise clause” in the STCA statute, she says, that gives the international prosecutor powers not only to receive information but also “independent investigation powers”. But there is “built-in tension” in that transfer, she suggests. “If the international prosecutor is completely independent, they could not only conduct additional investigations within transferred proceedings, but also add or discontinue proceedings. This might not always be in the interest of Ukraine. On the other hand, one would also not want a prosecutor of an international tribunal to be completely bound by what is done on the national level.”
For Grigaité Daugirdé this is a real concern: Belarus, Lithuania’s neighbour, and a source of continuing hybrid attacks, contributed to Russia’s war “by giving its territory to the aggressor”. North Korea, she says, did the same by “sending their troops”. But, she asks, “what happens if Ukraine, for different political reasons decide not to refer Lukashenko [Belarus president] to the tribunal? Then if Lithuania decides to separately send Lukashenko's file, would our prosecutors be able to do that? I don't see any argument or obstacle as to why the tribunal’s prosecutor should not be able or willing to receive additional documentation, but of course, it will depend on their courage, and ability to ground their decision.”
Immunity for Russia’s Troika
Much of the four years of negotiations leading to this moment was spent on the thorny question of immunities of state officials. “We have a clear provision in the statute that functional immunities shall not apply,” says Reisinger Coracini, referring to the usual principle that officials of foreign States cannot be prosecuted in the courts of another State for acts committed in the exercise of their functions. When it comes to war crimes, this immunity is lifted. But debates on these issues have continued in places like the UN International Law Commission. “I would therefore hope that we will get a very strong and clear and legally sound decision by the judges at a very early stage, which engages with and discusses all the arguments; an authoritative and convincing kind of Tadic decision [the first decision by the UN Yugoslav tribunal in 1995] on functional immunities.”
Then come personal immunities attached only to heads of state, prime ministers and ministers for foreign affairs – in the case of Russia, Vladmir Putin, Mikhail Mishustin, and Sergey Lavrov, also referred to as the ‘troika’. “It is clear that there will be a procedural stop when it comes to confirming a potential indictment against the Troika,” Reisinger Coracini warns. “The pre-trial judge shall not confirm indictments against members of the Troika and will suspend proceedings. But you also have the expectations coming from Ukraine – maybe not so much the government because they have signed off on this – but the expectations of the population that this will be a tribunal that should be able to go after those very much at the top of the military and political hierarchy. I believe this is a question of managing expectations, but it will remain a source of frustration.”
Volkova says “there isn't a lot of understanding or even interest in the tribunal right now. There's no trust in this tribunal yet, there's no belief that it will work and be effective. So by the time it's established, it will need to prove itself”.
Who is a victim?
Reisinger Coracini wonders about another issue: victims’ participation. “We don't really have experience with how a special tribunal should deal with victims of the crime of aggression. The only international tribunals that we had were the post-World War II on the crimes against peace [at Nuremberg and Tokyo], but there was not really any victim participation in the way we understand victim participation today – how the voices of victims should be heard, how victim communities should be treated, or even who will count as a victim of the crime of aggression. These are far-reaching questions that the special tribunal will face, and I think it's very important how the tribunal will deal with them.”
“The definition of a victim is not in the statute,” Volkova notes. There’s been an ongoing discussion, she says, “whether it should be the entire Ukraine or just specific individuals who have suffered. What we've heard lately and informally is that most likely there will be representation from different regions from Ukraine. But which regions and how they're going to choose, I have no idea. I guess that will have to be defined in the rules of evidence and procedure. And that’s a huge task for anyone to take on because there's so much responsibility. You are defining a victim of a crime of aggression for the entire state. On what authority? Who the hell are you to tell me whether I'm a victim or not? That's definitely one of the key aspects where civil society will be quite active. Victims’ associations have a voice and hopefully they will not stand back and will also have a say in all of this.”
“My biggest hope is that it will not take another five years before the tribunal becomes operational because this tribunal is the final cherry on the justice cake,” says Grigaitė Daugirdė. “We all say that Russia, of course, first of all, has to be defeated on the battlefield. But a big part of defeating Russia is defeating Putin and his imperial mindset. And this tribunal does exactly that because it sends a very clear signal that despite the fact that you are permanent member of the UN Security Council, despite the fact that you actually made those decisions as sitting head of state, despite that fact that this tribunal would still have to wait before an indictment could be enforced, still the indictment will be there, the evidence will be presented publicly, and all these efforts will be part of history. Because history is written by judgments, it is written by tribunals.”
