EU says international lawyers have “laid foundations” for special tribunal to try Putin and Russia’s leadership over invasion of Ukraine

A public demonstration against Russian singer Anna Netrebko's appearance at the Berlin State Opera in September 2023. Photo: Natalia Smolentceva (X: @ananats)

The European Union has announced a significant breakthrough in the push to establish a special tribunal to prosecute Russia for the crime of aggression, marking what it hails as a crucial step toward holding Vladimir Putin and his top officials accountable for the invasion of Ukraine.

In a statement released late on Tuesday, the EU’s executive arm said senior legal experts from the European Commission, the European External Action Service, the Council of Europe, Ukraine, and 37 states had “laid the foundations” for the tribunal, aimed at ensuring that Russian political and military leaders “who bear the greatest responsibility” for the war ultimately face justice.

“When Russia decided to roll its tanks across Ukraine’s borders, violating the UN Charter, it committed one of the gravest offenses: the crime of aggression. Now, justice is coming. Justice for Ukraine,” commented European Commission President Ursula von der Leyen.

The crime of aggression refers specifically to the act of launching an aggressive war against another state. Unlike war crimes and crimes against humanity — which can be prosecuted at all levels, including against lower-ranking military personnel from both sides of a conflict — the crime of aggression applies only to members of a country’s leadership who were responsible for ordering the attack.

“There has to be a clear division between war crimes and the crimes of aggression,” EU High Representative Kaja Kallas told journalists. “War crimes can be prosecuted by the ICC (International Criminal Court), but the crime of aggression can only be prosecuted by [a] Special Tribunal. It is clear that the crime of aggression is a leadership crime… Therefore, it is extremely important that there is also accountability for the crime of aggression. No one from Russia’s leadership is untouchable. That is the message that this tribunal sends.”

Ukraine first proposed the tribunal just days after Russia launched its full-scale invasion, but nearly three years of legal wrangling delayed progress as experts debated the appropriate judicial framework.

Talks on the tribunal had been stalled over the issue of immunity for Russian leaders. As a compromise, it is understood that Putin and other senior figures would not face prosecution while in office, according to a report by The Guardian.

While the International Criminal Court (ICC) in The Hague has already issued an arrest warrant for Putin and other Russian officials over the deportation of Ukrainian children, it lacks jurisdiction over the crime of aggression, as Russia never ratified the ICC treaty.

Another option — amending the ICC’s Rome Statute through the UN General Assembly — has been floated, but experts warn that it would be difficult to implement, given that many ICC member states do not recognize the court’s authority over cases related to the crime of aggression.

To move forward, the CoE, which consists of 46 member states and which expelled Russia following the invasion, has offered to host the tribunal. CoE Secretary General Alain Berset said he hoped work on a legal framework could be completed this year.

Berset, who met with former U.S. President Donald Trump in Paris in December during the reopening of Notre Dame, said it was “not so clear” how the tribunal might be affected by potential U.S.-led peace talks. “We try to go as fast as possible in a highly uncertain context,” he said.

Berset also emphasized that backing from the United States and its allies would be critical for the tribunal’s success. “It’s clear to everyone that without the G7, this tribunal will never take off,” he added.

The Insider has covered the potential contours of Putin’s criminal trial in a series devoted to international tribunals, which can be found below.