By Galina Korol | 2024-05-17

KYIV -- Discussions of a special tribunal to try Russia for its invasion of Ukraine are gaining steam.

The Committee of Ministers of the Council of Europe (CoE) took a key step toward helping Ukraine hold Russia accountable, Ukrainian Foreign Minister Dmytro Kuleba tweeted April 30.

"This significant decision directs the CoE Secretary General [Marija Pejčinović Burić] to prepare the necessary documents to facilitate consultations in the Core Group on the Tribunal and the potential project of an agreement between Ukraine and the Council of Europe on its actual establishment," Kuleba wrote.

Kuleba hailed the decision by the Committee of Ministers, calling it "an important practical step towards putting the tribunal into action."

"Each such step brings us closer to proving that justice for the crime of aggression against Ukraine is inevitable," he wrote.

It is significant that international desire exists to create the tribunal, observers say.

Discussions about a special tribunal for Russia's crime of aggression against Ukraine have been going on since 2022.

This step by the Council of Europe can truly be considered a positive signal, said Ihor Chalenko, a political analyst and director of the Center for Analysis and Strategies.

"This really is good news, but so far no conceptual decision has been made on how we should actually create this court," Chalenko told Kontur.

The desire to create the tribunal matters, Yuriy Bilous, a Kyiv lawyer who collects evidence of Russia's war crimes against Ukraine, told Kontur.

Bilous emphasized the necessity of establishing a precedent in which the tribunal not only comes into existence but also possesses the capability to successfully prosecute.

Three possible models

One option is Ukraine could take the approach like the one followed in 1993, when the UN Security Council voted to establish the International Criminal Tribunal for the former Yugoslavia.

The court, which was located in The Hague, prosecuted those who violated international humanitarian law in the former Yugoslavia starting in 1991.

The question at the forefront is what mandate this court will be given -- "meaning, based on what powers it will be created and operate," said Oleksandr Pavlichenko, a rights activist and an executive director of the Ukrainian Helsinki Human Rights Union.

"Essentially the question that had been floating around for the last two years was whether it would be the UN or not the UN. Now by all appearances that question is settled," Pavlichenko told Kontur.

Ukraine has steered away from the UN because "the resolution needs to be supported by all the members of the Security Council, including Russia, which consistently exploits its veto power and which no one is willing to expel from the body," Bilous explained.

A second option is a hybrid format, where the tribunal functions under Ukrainian law but with the support of international partners.

However, Bilous also warned of drawbacks in this scenario.

One is that only a fully international special tribunal can overcome immunity from foreign countries' courts that Russian President Vladimir Putin, Foreign Minister Sergey Lavrov and Prime Minister Mikhail Mishustin would be sure to claim.

Another is Ukraine's constitution, which holds that the "judges have to be Ukrainian citizens," he said.

If Ukraine wanted to remove that provision and thus make the court more palatable internationally, it would have to amend its constitution, "but how are we going to do that during a war? It's not allowed," Chalenko told Kontur.

Thus, a third scenario is necessary, said Chalenko, who envisions a tribunal based on a multilateral agreement between Ukraine and other states or a bilateral agreement between Ukraine and the CoE.

An example of such a tribunal was the Nuremberg court that convicted Nazi war criminals in 1945-1946.

"Russia itself constantly points out the historical significance of Nuremberg ... I think the best option will be to take the third approach and use an international agreement to create a distinct parallel to Nuremberg for Russia's crimes," he said.

Hoping for a tribunal this year

Now work turns toward forming a tribunal, possibly as early as this year.

On April 2, the conference "Restoring Justice for Ukraine" took place in The Hague.

"Forty-four states supported the creation of a special tribunal for Russia's crimes committed against Ukraine during the war. The politicians approved the corresponding declaration," the Ukrainian news outlet Suspilne Novini reported on April 3, citing the Dutch government's press office.

The creation of the tribunal is in the final stages, European Commissioner for Justice Didier Reynders told journalists from Deutsche Welle during the conference.

"The next step is a matter of political will ... by the end of the year this should be possible," Deutsche Welle quoted Reynders on April 5.

The timeline for creating the special tribunal is in fact important because no one can predict the precise turn of events, Pavlichenko said.

"A center for gathering evidence opened last summer and is operating in The Hague. It is one component of this tribunal. The International Criminal Court is doing the initial work, essentially examining the categories of crimes of everyone except for the crime of aggression," Pavlichenko said.

Establishing such a tribunal requires considerable, painstaking work and a great deal of money, said Bilous.

"The decisions by the Council of Europe that we're discussing today are, among other things, a partial step toward this tribunal becoming a reality. It will be a reflection of justice for a huge number of people in our country," he said.