What is the Special Tribunal and why is it needed?
The Special Tribunal for the Crime of Aggression against Ukraine is a separate international court designed to establish the personal responsibility of the highest political and military leadership of the aggressor state. Its task is to give a legal assessment of the decision to attack Ukraine itself and to determine who made and implemented this decision.
This is not about considering individual episodes of the war, but about responsibility for the key crime – aggression as such.
Why was a new mechanism needed?
Despite the fact that the International Criminal Court investigates war crimes, crimes against humanity and genocide, its powers regarding the crime of aggression are limited. Russia has not ratified the Rome Statute, and therefore the ICC has no jurisdiction over the crime of aggression against Ukraine.
It was this gap that became the basis for the initiative of Ukraine and its partners to create a separate tribunal – a body that would have the necessary powers to hold accountable for the crime of aggression.
Legal basis of the tribunal
The tribunal is being established on the basis of a mandate from the Council of Europe and a relevant international agreement. Its statute defines a clear international status: it is not a national or “hybrid” court, but a full-fledged international body that operates exclusively within the framework of international law.
This format is designed to ensure the independence of judges, prosecutors and procedures from any political influence.
Who will be able to be tried by the tribunal?
According to the statute, only those persons who actually control or direct the political or military activities of the state can be held responsible for the crime of aggression. This refers to the highest leadership: the head of state, the head of government, the minister of foreign affairs.
They can be accused if it is proven that they planned, initiated, ordered or otherwise participated in the aggression.
Are immunities in effect?
The statute of the tribunal establishes the principle: official position does not exempt from responsibility. At the same time, a procedural balance is provided for – an indictment against a current head of state or government is not approved by a judge while the person is in office.
That is, the mechanism of responsibility is preserved, but final procedural decisions can be postponed until the end of the term of office.
Possibility of a trial in absentia
One of the features is the possibility of considering the case in the absence of the accused (in absentia). If the defendant does not appear in court, the trial can take place without him.
In this case, the tribunal is obliged to ensure the right to defense: if the person does not have a lawyer or refuses to appoint one, the court itself determines the defense lawyer. At the same time, the person convicted in absentia retains the right to demand a new trial of the case if he appears before the court in person.
How will the tribunal cooperate with the ICC?
The Special Tribunal does not duplicate the work of the International Criminal Court, but complements it. While the ICC deals with war crimes, crimes against humanity or genocide, the new body focuses exclusively on aggression.
In the event of a person being transferred to the ICC on other charges, the proceedings in the Special Tribunal may be suspended until the completion of the relevant procedures.
Risks and challenges
The creation of the tribunal takes place in conditions of global political polarization. Not all states recognize its jurisdiction, and the court’s decisions may be subject to political criticism.
Additional discussions are caused by the mechanism of absentia trials. Some experts question the practical effectiveness of sentences if the accused remain under the protection of their own state.
There is also the question of universality: will this tribunal become a new standard of international justice or will it remain an exception related to a specific situation.