EU supports creation of special tribunal to prosecute Russia’s aggression against Ukraine

Brussels – A new legal initiative is taking shape in Europe, with political and institutional support from the EU and several international partners: an ad hoc tribunal to punish Russia’s crime of aggression against Ukraine. The project, announced Friday (May 9) by the European Commission, the Council of Europe, and Ukrainian Prime Minister Denys Shmyhal, aims to fill a loophole left open in international law, which currently prevents the International Criminal Court from taking full action against Moscow because Russia does not recognize its jurisdiction.

The new court will be established under Ukrainian law with the support of international partners. It will be based in the Netherlands, which is already the symbolic and operational center of international criminal justice. Its task will be exclusive: to try the crime of aggression, namely the act by which Russia launched the large-scale invasion of Ukraine in February 2022. According to the European Commission’s announcement, the tribunal will operate with the joint support of the Commission, the European External Action Service, the Council of Europe, and the Ukrainian Prosecutor General’s Office. It will be funded by a coalition of states, including the Netherlands, Japan, and Canada, with the ambition to start work by the end of 2025.

Unlike other international crimes such as genocide or war crimes, the crime of aggression targets political and military leadership: it aims to identify and try those who decided and directed the invasion, focusing on the personal role of figures such as the president, prime minister, and foreign minister. In this sense, the tribunal takes the form of a tool to attribute responsibility to those with the highest decision-making power and not only to the material perpetrators of crimes on the ground. Ukrainian President Volodymyr Zelenskyy has repeatedly stressed the importance of securing justice for the original crime from which all other atrocities stemmed, stating that only a credible and impartial trial can serve as a deterrent against future aggression. For this reason, the new tribunal aims to set a legal and political example for the international community, reaffirming the principle that impunity cannot be the norm in armed conflicts.

The European Commission president, Ursula von der Leyen, called the initiative a necessary response to a flagrant violation of international law: “When Russia chose to advance its tanks beyond Ukraine’s borders, breaking the UN Charter, it committed one of the most serious violations: the crime of aggression. Now, justice is coming.” The tribunal project is part of the broader framework of legal support provided by the European Union, which has already helped establish the International Center for the Prosecution of the Crime of Aggression, based in The Hague and supervised by Eurojust. This center is currently building the judicial files needed to prepare future prosecutions. As for the evidence required, the EU High Representative for Foreign Policy Kaja Kallas has no doubts: “Every inch of Russia’s war has been documented. This leaves no room for doubt about Russia’s blatant violation of the UN Charter. Russian aggression will not go unpunished.”

The path leading to the court’s operation will not be without obstacles. According to the norms of international law, the top leaders of a state enjoy immunity as long as they remain in office, which could postpone the start of any actual trial. However, the mechanism envisaged will allow the preservation of evidence and the initiation of pre-trial proceedings, with the possibility of starting the trial as soon as legal conditions allow. The next step now will be the formal adoption of the legal acts by the Council of Europe and the appointment of judges and prosecutors through an independent committee.