By Galina Korol | 2025-05-26

KYIV -- The bombs have not stopped falling, but the pursuit of justice has already begun. For the first time in modern history, the international community is laying the groundwork for a war crime tribunal while the war is still raging.

In Luxembourg on May 14, European ministers took a bold step: they agreed to create a special tribunal to prosecute the crime of aggression against Ukraine. This is an active attempt to hold Russian President Vladimir Putin and his inner circle accountable now, not someday.

Putin ordered a full-scale invasion of Ukraine in February 2022.

'A green light on a symbolic day'

After almost three years of diplomatic groundwork, the green light to establish a special tribunal for the crime of aggression against Ukraine came on a day heavy with symbolism: May 9, when Russia held its annual Victory Day celebrations commemorating its defeat of Nazi Germany.

That same day, ministers and diplomats from more than a dozen European nations gathered in Lviv, Ukraine, to adopt a joint statement, the first high-level political commitment to establishing the tribunal.

"To start things, we have the Core Group, and I am happy that the technical work [to establish the tribunal] has been done," said Kaja Kallas, the European Union's top diplomat, as quoted by Ukrinform on May 10.

She noted that "around 40 countries are already involved" and that participation remains open to all.

"This is a monumental event because sadly, people have started to forget the lessons of World War II, primarily in Russia," Alexei Baranovsky, a journalist, lawyer and veteran of the Freedom of Russia Legion, a volunteer unit of Russian citizens fighting alongside Ukrainian forces, told Kontur.

The tribunal offers hope that "the reintegration of this Nazism, which has manifested itself as 'Rashism,' will be halted and punished harshly," he said.

Political and legal hurdles notwithstanding, the drive to establish the tribunal has gained unprecedented traction.

Building a case while missiles fly

In theory, the International Criminal Court (ICC) could prosecute the crime of aggression. But a catch exists: the ICC has jurisdiction over this crime only if both the aggressor and the victim state have ratified the Rome Statute, the treaty that established the court. Russia has not.

"This means that the International Criminal Court is restricted," Andrii Yakovlev, a lawyer, managing partner of tje Umbrella law firm and analyst at the Regional Center for Human Rights in Kyiv, told Kontur.

A United Nations (UN)-backed tribunal was also off the table: Russia's veto power on the Security Council made that route politically unviable. Instead, momentum shifted toward building the tribunal through a regional framework -- the Council of Europe.

"The next thing that happens according to the procedure is that the Council of Europe signs an agreement with Ukraine, and subsequently, other countries can join too," Yakovlev explained.

The tribunal is expected to be based in The Hague.

Aggression that made other crimes possible

Gleb Bogush, a legal scholar and researcher at the University of Cologne in Germany, emphasized the centrality of the aggression charge.

"Without the aggression, there wouldn't have been all the other crimes, and a large portion of the harm that was done is encompassed by this crime of aggression," he told Kontur. The tribunal's very existence "will put additional pressure not just on the Russian government but also on other states that support this aggression or tolerate it."

The issue of personal immunity remains a major obstacle, however.

"Can this tribunal investigate the crime of the so-called troika -- that is, Putin, [Russian Foreign Minister Sergey] Lavrov and [Prime Minister Mikhail] Mishustin?" Yakovlev asked.

Unlike the UN Security Council, the Council of Europe lacks the authority to waive the immunity of sitting heads of state and top officials, complicating the path toward prosecution at the highest levels.

Immunity loopholes and legal fictions

No definitive answer to one of the tribunal's most critical legal questions exists yet: whether sitting heads of state may be prosecuted. The tribunal's charter has yet to be officially published, and its treatment of immunity remains ambiguous.

"There are clauses of well-known international bar associations that say that immunity [when a special tribunal is reviewing cases] will be respected, but only while the individual occupies that position," explained Yakovlev.

Such interpretations have drawn criticism.

"This is of course absurd," said Oleksandra Matviichuk, director of Ukraine's Center for Civil Liberties, in an April 26 interview with Deutsche Welle.

The tribunal's purpose is to hold accountable those responsible for the aggression that enabled Russia's broader campaign of atrocities in Ukraine since 2014, she said.

Sources familiar with the draft statute say the term "personal immunities" will not appear, according to European Pravda editor Sergiy Sydorenko. Instead, the statute will declare that "functional immunities do not apply."

"This means that officials involved in planning and facilitating the aggression cannot claim they were merely performing their official duties," Sydorenko explained in a May 9 article.

Notably, the statute will not prohibit investigations of senior leaders, including Putin. Prosecutors may pursue charges against Belarusian dictator Alyaksandr Lukashenka and North Korean leader Kim Jong-un.

"In other words, the prosecutor will carry out the investigation, draw up an indictment, present it publicly and submit it publicly to the permanent pre-trial judge for further proceedings," an anonymous source involved in tribunal negotiations told European Pravda.

Proceedings would be paused while a suspect remains in office but would resume automatically once he or she leave power.

Bogush voiced skepticism about this approach. Delaying prosecutions, he argued, risks enabling authoritarian leaders to evade justice indefinitely.

"This establishes the lifelong impunity" of figures like Putin, Lukashenka or Kim, he warned.

The risk of political influence

Another concern is the tribunal's perceived independence.

"The foundation of any international court -- and what distinguishes it from a national court -- is its independence from national authorities," Bogush said.

While Ukrainian officials will play the main role in the tribunal's work and in evidence gathering, control over the investigation, particularly the decision of whom to indict, must remain beyond the reach of political influence.

"How will this court be viewed?" Bogush asked, raising the issue of legitimacy among states that support Russia or seek to remain neutral.

The ICC's arrest warrants for Putin, former Defense Minister Sergei Shoigu and chief of the General Staff Valery Gerasimov have not stopped them from continuing their "bloody deeds," he noted.

"We're seeing different people going nonchalantly [to Russia], posing for photos and shaking hands [with Putin and other government officials]."

Despite the legal and political hurdles ahead, one message remains clear: "The tribunal for the crime of aggression hasn't been forgotten and hasn't fallen into oblivion," Bogush said.