Firstly, the bloc needs to act now, before a peace deal is negotiated, in order to lock in and protect accountability efforts in Ukraine. And this should include a swift establishment of the proposed Special International Tribunal for the Crime of Aggression.
Russia’s aggression against Ukraine is the original crime that paved the way for all other international crimes committed in Ukraine. And unlike war crimes, crimes against humanity and genocide, there’s no international tribunal that can prosecute the crime of aggression — which means an ad hoc tribunal does, indeed, need to be set up.
Since 2023, a group of nearly 40 countries — mostly from Europe but also from Asia, Oceania, North America and Central America — have all been working with Ukraine to establish this tribunal, and they’re now close to agreeing on how it would operate.
In short, the tribunal would be mandated to investigate Russia’s top leaders for their role in preparing and launching the war of aggression against Ukraine. It would be created by the Council of Europe, and it would be based on a treaty between Ukraine and the Council of Europe, drawing from a combination of territorial jurisdiction stemming from Ukraine and international law.
Such a tribunal would be valuable not only for its prosecutions but because its actions — indictments, in particular — would set the historical record regarding how the war started and who was behind it, much like the Nuremberg trials did for World War II.
As for timing, establishing the tribunal now, before any serious peace negotiations, would help ring-fence any attempts to roll back accountability. And once the tribunal is in existence, it would take on a life of its own, largely operating beyond political bargaining, making it virtually impossible to shut down.
