To restore justice, Ukrainian and international lawyers are working to establish a Special Tribunal for the Crime of Aggression against Ukraine — one intended to put the scales of justice back in balance. Last month, the Committee of Ministers of the Council of Europe met in Chisinau to approve the Enlarged Partial Agreement, the final legal step towards launching the Special Tribunal.
We spoke with Anton Korynevych, Director of the Department of International Law and International Legal Response to Aggression at the Ministry of Foreign Affairs of Ukraine, about what the Special Tribunal is, where the process of establishing it currently stands and why justice must be pursued specifically for the crime of aggression.
What is the Special Tribunal for the Crime of Aggression against Ukraine? Why do we need to establish a separate body to try Russians for launching the invasion?
The Special Tribunal for the Crime of Aggression against Ukraine is a new body of international criminal justice that Ukraine is currently working to establish together with its international partners.
It will be a new independent subject of international law — in essence, an independent international organisation — with jurisdiction to prosecute individual members of the senior political and military leadership of states for committing the crime of aggression against Ukraine.
The Tribunal will have jurisdiction over one crime only: the crime of aggression, and only as it relates to Ukraine. It will therefore be an ad hoc tribunal that will eventually complete its work, unlike the International Criminal Court, which is a permanent body of international criminal justice.
The Special Tribunal will not interfere with the International Criminal Court. It will, in essence, be an additional component, because the International Criminal Court cannot exercise jurisdiction over the crime of aggression against Ukraine.
The Special Tribunal is being established to close one of the most obvious and glaring gaps: the current absence of an international mechanism for accountability for the crime of aggression against Ukraine.
Why can the ICC not consider the crime of aggression?
The International Criminal Court is investigating the situation in Ukraine in relation to three categories of the gravest international crimes: genocide, crimes against humanity and war crimes.
The ICC has already issued six arrest warrants for Russian nationals for the alleged commission of war crimes and crimes against humanity, including Vladimir Putin. However, the ICC cannot exercise jurisdiction over the crime of aggression against Ukraine because its jurisdiction over that crime is specific. It differs from its jurisdiction over the other three categories of international crimes I have mentioned and, in essence, requires one of two additional conditions to be met.
First, for the ICC to investigate and prosecute the crime of aggression, both states must be parties to the Rome Statute of the ICC and to the Kampala Amendments defining the crime of aggression. Today, only 49 states meet this condition. The Russian Federation is not among them and, of course, will not be in the near future. We understand that too. Unfortunately, this basis cannot apply in our case.
There is a second condition. If the United Nations Security Council refers a situation to the International Criminal Court, the ICC may consider the crime of aggression. But we understand that, given the current architecture of the UN Security Council, this cannot happen. In other words, the Security Council will not refer the situation in Ukraine to the ICC. This is perfectly clear both to us in Ukraine and to our international partners, who support both the ICC and the establishment of the Special Tribunal. That is precisely why we are creating the Special Tribunal.
The Special Tribunal must ensure accountability for the crime of aggression against Ukraine. The crime of aggression is the crime that gave rise to all the other crimes committed in Ukraine. Had there been no crime of aggression, there would have been no war crimes committed on our territory since 2014.
We are therefore convinced that it is not enough to speak only of accountability for what we might call the ‘consequence crimes’: genocide, crimes against humanity and war crimes. We must also speak of accountability for the foundational crime from which everything began — the crime of aggression.
The Russian-Ukrainian war is the largest war of aggression in the world since 1945. After the Second World War, accountability for the crime of aggression was secured through the Nuremberg and Tokyo International Military Tribunals. Since this is the largest war in 80 years, we believe Russia must be held accountable for the crime of aggression just as those responsible were held accountable in 1945, 1946, 1947 and 1948.
The crime of aggression encompasses responsibility for the war as a whole — for planning, launching and waging it and for issuing the orders. It is not a single act or episode; it is the war in its entirety. If we ensure accountability for the crime of aggression against Ukraine, we ensure accountability for the entire war of aggression against Ukraine.
Who will be in the dock at the Tribunal? Individual members of the senior political and military leadership, or a state?
The crime of aggression is a crime. The Nuremberg Tribunal held that the gravest international crimes are committed not by abstract entities or states, but by specific individuals — human beings. And those individuals must be held accountable for committing such grave international crimes.
Accordingly, those held accountable before the Special Tribunal will be natural persons: representatives of the senior political and military leadership of the Russian Federation and, quite possibly, representatives of other states. That will be for the Tribunal itself to decide, because its jurisdiction is not limited solely to Russian nationals. It may prosecute a national of any state who has committed aggression against Ukraine. Thus, the Special Tribunal will focus on holding these individuals accountable.
It will indeed concern only the political and military leadership — those ‘at the top of the tree’ — because the crime of aggression is a leadership crime committed by a narrow elite. Only those who, by virtue of the powers vested in them, could issue orders to launch and wage the war can be held responsible for it.
It cannot be a lieutenant or sergeant in the armed forces. It must be someone with the authority to order the use of the relevant forces and assets. That is why the Special Tribunal is about accountability at the very highest level.
That does not mean other people will not be held accountable. They will — but not for the crime of aggression before the Special Tribunal. They may instead be prosecuted for war crimes or crimes against humanity before the International Criminal Court, or before national courts in Ukraine and other states.
If senior leaders are convicted by the Special Tribunal, could they then also be tried by the ICC, which has issued arrest warrants? Does accountability for the crime of aggression come first, followed by accountability for crimes against humanity? Or are these two separate tracks that need not be linked?
They are two separate tracks. The Special Tribunal will operate in parallel with the International Criminal Court, because the ICC’s jurisdiction indeed covers the three categories of crimes we have discussed.
The Special Tribunal will deal with accountability for the fourth category. In theory, the two proceedings can run in parallel. We see no problem with that, and neither do our international partners. What matters is that justice is done.
The Special Tribunal has one very important feature: it can conduct proceedings in absentia. It can carry a case all the way through in the accused’s absence, rather than stopping at arrest warrants, and proceed to a full trial and judgment without the accused being physically present.
For example, a Russian national may remain in Moscow or Rostov, while the Tribunal not only issues an arrest warrant but also delivers a judgment finding that person guilty.
Other international criminal courts and tribunals currently do not have such powers, which is why we regard the ability to conduct proceedings in absentia as a genuinely powerful feature of the Special Tribunal.
And if the Tribunal delivers a judgment in absentia, what happens next? If the person remains in Moscow, for example, how can they actually be brought to justice?
If they remain in Moscow, then until the Russian Federation starts cooperating with the Special Tribunal, it will be difficult to do anything physically. We understand that.
But it will already be part of the historical record: the person will no longer merely be a suspect subject to an arrest warrant, but a convicted criminal. There will be a judgment stating the sentence: ten, twenty or thirty years in prison, life imprisonment, confiscation, fines and so on.
This means that in civilised states that recognise and cooperate with the Special Tribunal, that person will not be able to move freely or escape the consequences. Those states will be under an obligation to arrest the person and surrender them to the Special Tribunal to serve a just sentence.
I would not want readers to come away thinking that suspects will simply sit in Moscow and face no consequences. They will, because they will already have been recognised as criminals by an international judicial body. This is not a Ukrainian court or part of the Ukrainian judicial system; it is an independent international body of criminal justice. These people can be convicted and receive full sentences.
I think that matters greatly. It also dismantles the Russian narrative — the mantra about imaginary ‘gatherers of lands’. In the eyes of the international community, including the Special Tribunal, they will not be gatherers of lands, but international criminals.
On 15 May this year in Chisinau, 34 member states of the Council of Europe, the EU, Australia and Costa Rica supported the Enlarged Partial Agreement. Tell us more about it: why was this an important event for the Tribunal?
The Enlarged Partial Agreement is one of the three core constituent instruments of the Special Tribunal required for its establishment and launch.
The first is the Agreement between Ukraine and the Council of Europe on the Establishment of the Special Tribunal, signed in Strasbourg on 25 June 2025 by President of Ukraine Volodymyr Zelenskyy and Secretary General of the Council of Europe Alain Berset. The Verkhovna Rada ratified the Agreement on 15 July, with 323 Members of Parliament voting in favour. This is the foundational agreement between Ukraine and the Council of Europe under which the Special Tribunal is established as a separate international organisation.
The second constituent instrument is the Statute of the Special Tribunal. It is the set of rules and provisions under which the Special Tribunal will operate — its basic document, akin to a constitution. The Statute is an integral part of and an annex to the Agreement between Ukraine and the Council of Europe on the Establishment of the Special Tribunal. It was therefore also signed on 25 June last year and ratified by the Verkhovna Rada on 15 July together with the bilateral Agreement.
The third element in this architecture of constituent instruments is the Enlarged Partial Agreement on the Management Committee of the Special Tribunal. Unlike the first two documents, it is not a bilateral agreement between Ukraine and the Council of Europe, but a multilateral one. Through this Agreement, the Special Tribunal becomes a multilateral initiative.
The Enlarged Partial Agreement is an instrument found only within the Council of Europe. No other international organisation has such a mechanism.
What is it?
It is an agreement open to any member state of the Council of Europe and to any other state in the world wishing to join. Council of Europe member states that do not wish to participate are not compelled to do so.
The instrument of enlarged partial agreements was designed to prevent a process from being blocked if not all 46 member states of the Council of Europe wish to participate in addressing a particular issue. The Enlarged Partial Agreement on the Management Committee of the Special Tribunal was approved and its text was signed in Chisinau on 15 May this year at the ministerial session of the Committee of Ministers of the Council of Europe.
It was supported by 36 states and the European Union — 37 participants in total, which is a very strong result. The group includes non-European states: Costa Rica and Australia. We hope more non-European countries will join, as the process of accession to the Enlarged Partial Agreement is ongoing.
The Enlarged Partial Agreement establishes the Management Committee of the Special Tribunal. It will function much like an assembly of participating states: each state participating in the Agreement will have its own representative. The Committee will take all key decisions on the major aspects of the Tribunal’s operation and functioning — finances and security, the selection of the Prosecutor and judges and the approval of the various rules governing the Tribunal’s work. It will be the highest decision-making body.
It is therefore very important for the Management Committee to begin its work as soon as possible. For that to happen, the Enlarged Partial Agreement approved in Chisinau on 15 May this year must enter into force. That is simply how international law works.
States must now complete their domestic procedures in relation to the Enlarged Partial Agreement. In some states, including Ukraine, that will mean ratification or accession through Parliament. In others, such as Poland, a government decision accepting the binding force of the Agreement will suffice. It depends on the rules of each state. Once the 36 states and the EU complete their domestic procedures, the Agreement will enter into force and the Management Committee will begin its work.
Chisinau was a major benchmark — a historic milestone. But we are not stopping; we need to keep working.
Is there a set number of states that must join the Enlarged Partial Agreement?
No. But it is important that the major contributors to the Council of Europe’s budget join the Agreement: the United Kingdom, France, Italy and Germany. It is also important that the EU be part of the process, because that ensures the sustainability of the Special Tribunal.
How are we working with states outside the Council of Europe or the European Union to encourage them to join the Agreement?
We began working with them through the Coalition of States, or Core Group, while that mechanism was still operating. Within this informal format, we regularly met legal advisers from the foreign ministries of the participating states and worked on the texts of the three documents we have discussed today. Membership was not limited to Europe: Costa Rica and Australia were involved. As you can see, the groundwork we began with them has resulted in these states now being part of the process. Other states from other regions also took part and we continue to work with them. We hope there will be good news in the future about more non-European states joining the Enlarged Partial Agreement. It is difficult work, but it has to be done.
Will Ukraine have the decisive say in selecting judges and prosecutors, or in making any other decisions about the Tribunal’s work?
We are dealing with international law and international institutions, where every participant has an equal vote. There are no priorities or privileges. But I am convinced that a situation in which Ukraine’s voice is not heard or not given sufficient weight is simply impossible. So I am confident everything will be fine. Much more important is to get the whole mechanism launched and moving. That is the key.
We have come a very long way and keep taking important steps towards the operational launch of the Special Tribunal. It is now a political and financial question. But as a lawyer, I can say that we have laid a very strong legal foundation for the Special Tribunal. I hope — and this is what we are working towards — that everything else will also take off, as they say.
Are you aware of any instances in which Russia has tried to obstruct the establishment of the Special Tribunal?
We know that the Russian Federation is following the process. Russian officials are hardly pleased by the prospect of where this could lead: being recognised as international criminals and everything that follows. Naturally, they do not like it, and we know that Russia is trying to throw a spanner in the works in various forums. I will not go into the details of how exactly, but we can see that it concerns them. But it does not deter us. What matters is launching everything as quickly as possible and ensuring that the Special Tribunal becomes an operational and effective body.
What has been most important to you in this process, apart from launching the Tribunal itself?
The lawyers — particularly foreign ministry legal advisers within the Core Group — developed excellent documents as the foundation for the Special Tribunal.
Many of my colleagues who worked with us in the Core Group — legal advisers from other states — have noted how unique this entire process is. One of them told me that the result exceeded all his expectations and hopes. He had not expected it to come together so well; indeed, no one was certain it could be achieved.
Another, who has enormous experience in international law, said that the Special Tribunal and its constituent instruments were the most important achievement of his professional life.
I think such an assessment from leading European legal advisers shows how important this result truly is. We now hope to finish the job through political will, including by resolving the financial questions.
I want to see a building with people working inside it. I want to see the Special Tribunal up and running. That is the goal now. Of course, after that I want to see judgments. But I understand that we must proceed step by step. So, for me, the vision of a building in The Hague with people at work inside it is the main goal at this stage.
