“The world no longer has a choice between force and law; if civilization is to survive, it must choose the rule of law.”—Paul Krugman

Introduction

The Council of Europe’s establishment of a Special Tribunal for the Crime of Aggression against Ukraine represents a significant development in the international justice landscape. As nations grapple with the legal ramifications of aggression in the geopolitical arena, this tribunal serves as both a reflection of political realities and a potential vehicle for accountability. In this analysis, we will explore the political underpinnings of this new tribunal, the challenges and opportunities it presents, its relationship to existing international frameworks, the caliber of international legal expertise it brings together, and ultimately the broader implications for global justice and accountability.

Political Compromise as a Driving Force

At the heart of the tribunal’s creation lies a “bright red thread” of political compromise. The formation of such tribunals is often steeped in the intricate dynamics of international politics, and this tribunal is no exception. Although it may not represent a flawless legal framework for ensuring accountability, it arises from a coalition of nations committed to addressing the aggression perpetrated by the Russian Federation against Ukraine.

This compromise—whilst illuminating the imperfections of the international justice system—presents a pragmatic solution favored by a Core Group of Nations. This group, recognizing the limitations of existing structures, opted to pursue a path that emphasizes political will over perfect legal solutions. Consequently, the tribunal’s design reflects the realities of international relations rather than an ideal vision of justice.

Challenges and Opportunities

The compromises inherent in the tribunal’s formation generate both challenges and opportunities. From a procedural standpoint, the establishment of this legal structure provides an essential framework for the documentation and investigation of Russia’s aggression against Ukraine. This formal mechanism opens avenues for collecting evidence, identifying perpetrators, and engaging with witnesses—activities that are critical for building a substantial case against those responsible for the invasion.

Moreover, the tribunal signifies a collective determination among member states to address this international crisis, creating a unified front against aggression. Unfortunately, in the context of global power dynamics, obtaining a broad consensus for effectiveness remains a challenge. However, the tribunal’s creation is also an opportunity to pave the way for future accountability measures, which can serve as a blueprint for addressing similar situations worldwide.

Diverging from the UN Paradigm

While there was an initial inclination toward seeking solutions within the General Assembly of the United Nations, the political climate did not align with the hope for a UN-based tribunal. This divergence highlights an essential truth: international politics can often obstruct the pursuit of justice through established mechanisms. Yet rather than retreating from the quest for accountability, member states created an alternative solution.

This initiative underscores the ability of nations to coalesce around shared values despite the challenges posed by institutional limitations. By creating a tribunal outside the UN framework, the Council of Europe and its partners have taken a decisive step toward emphasizing the importance of state responsibility in upholding international law.

A Pool of Expertise at Its Helm

The tribunal’s success will hinge greatly on the expertise brought by its leadership. The statute envisions the inclusion of seasoned professionals from the international criminal law community, including individuals who have held positions such as Chief Prosecutors, Registrars, and judges in various international courts. The emphasis on an open and fair nomination process for these roles is critical and underscores a commitment to transparency and integrity.

This wealth of experience is essential for the tribunal’s credibility and effectiveness, as these individuals are tasked with navigating the complexities of prosecuting aggression. Moreover, the requirement for nominees to have previously held significant roles in other international tribunals will enhance the tribunal’s competence, allowing it to draw on established practices and lessons learned from past endeavors.

Developing a Strategic Legal Process

Importantly, the statute affords the tribunal the necessary time and space to cultivate an efficient and effective prosecutorial process. With a capable Chief Prosecutor at the helm, the tribunal is poised to build a comprehensive case against those who perpetrated or facilitated aggression, potentially including high-profile figures like President Vladimir Putin and his inner circle.

While the statute does not grant the Chief Prosecutor unilateral power to indict individuals such as Putin, it allows the tribunal to publicly outline the trajectory of accountability and the legal justifications for charges. This documentation of wrongdoing serves dual purposes: it establishes a historical record for future reference and sends an unequivocal message to aggressors that they may be held accountable for their actions.

Conclusion

In conclusion, the establishment of the Special Tribunal for the Crime of Aggression against Ukraine, while not devoid of imperfections, marks a significant step in the evolution of international justice. It is a testament to the tenacity of nations seeking accountability and a powerful demonstration that the pursuit of justice can thrive outside conventional frameworks when politics obstruct the way forward.

Although the tribunal may face limitations—particularly in its power to directly indict high-ranking officials—it serves as a potent warning to dictators and strongmen across the globe. It compels them to reckon with the notion that aggression as a foreign policy can and will have consequences. Ultimately, Vladimir Putin’s day of reckoning may not be far off, and the tribunal’s creative statute could lay the groundwork for a new paradigm in judicial accountability.

Let us embrace this effort and advance it in a manner that reflects our collective resolve: that Europe and the wider world will not tolerate aggression, and that the rule of law, guided by principles of justice, will ultimately prevail over the rule of the gun. Together, we stand at the brink of an opportunity for monumental change—an opportunity to redefine the landscape of international accountability for generations to come.

David M. Crane served as the founding Chief Prosecutor of the United Nations Special Court for Sierra Leone, where he indicted then-President Charles Taylor of Liberia—the first time in modern history that a sitting head of state was charged with international crimes.