Nuremberg trial for Kremlin: How Special Tribunal for Russian aggression would work

For Ukraine, which has been advocating for three years to create a body capable of effectively prosecuting Russia’s military and political leadership, this event is truly significant. However, it is worth noting that the Tribunal will likely be unable to reach Russia’s top leadership trio.

Three years and three options

Ukraine began advocating for the establishment of a war crimes tribunal against Russia from the very first days of the full-scale invasion. Even then, Russian forces showed no concern for the precision of their missiles or rocket artillery, frequently targeting civilian infrastructure. On February 26, Ukrainian Prime Minister Denys Shmyhal announced that Russia’s leadership would face a tribunal.

Shortly thereafter, Ukraine filed a case with the UN International Court of Justice in The Hague. In parallel, the UN set up a commission to investigate war crimes, and prosecutors from the International Criminal Court (ICC) also began documenting Russian actions.

Crimes are being recorded and investigated both by Ukrainian law enforcement and international bodies. For example, through the meticulous work of investigators and consistent diplomatic efforts, Ukraine succeeded in persuading the ICC to issue an arrest warrant for Vladimir Putin over the unlawful deportation of children. However, when it comes to establishing a tribunal, Kyiv has continually encountered obstacles.

The Ukrainian side has advocated for the creation of an ad hoc tribunal, that is, one established specifically to prosecute the crime of aggression. It must also be international, since broader recognition of the tribunal's legitimacy by other countries increases the chances that war criminals will be held accountable. Ukraine insists on a tribunal, rather than relying solely on the ICC, as the court is restricted by the jurisdiction of the Rome Statute, which Russia has not ratified.

"That is why we believe that our tribunal, the Special Tribunal for the Crime of Aggression against Ukraine, must focus solely on this specific crime and only on the situation in Ukraine. We are not trying to invent a universal mechanism or create any alternative practice," said Anton Korynevych, Ambassador-at-Large of Ukraine’s Ministry of Foreign Affairs.

By 2023, discussions had resulted in three options: a UN General Assembly resolution to establish the tribunal, or the signing of an international treaty between the UN and Ukraine. However, it eventually became clear that the UN member states lacked the political will to create a tribunal by majority vote.

The second option involves a broad-format international treaty and declaration, initiated by Ukraine through its signature. This model closely resembles the Nuremberg precedent, in which a country signs, ratifies, and recognizes the tribunal’s legitimacy.

The third option is a hybrid model, where the core of the proceedings would be based within Ukraine’s judicial system, supplemented by an international component. This approach is the least favorable for Ukraine, as it doesn’t constitute a truly international tribunal. As a result, the legitimacy and recognition of its verdicts could be questioned. Moreover, implementing such a model would require constitutional amendments - something that is not feasible under martial law.

When it comes to precedents such as the tribunals for Yugoslavia or Rwanda, those were created by the United Nations Security Council under Chapter VII of its Charter. However, Russia is a permanent member of the Security Council and vetoes anything that could harm or threaten it in any way.

Another contentious issue that met strong resistance in discussions was the possibility of lifting diplomatic immunity from the so-called Russian trio - Vladimir Putin, Sergey Lavrov, and Nikolai Patrushev. These individuals are protected from prosecution as long as they remain in office. However, they and especially Putin are considered the key war criminals responsible for unleashing war in Europe.

"Creating an international tribunal that overcomes the hurdle of head-of-state immunity is a significant challenge. It can be achieved, especially with strong support from the Council of Europe and participation from other countries. However, I personally believe that a tribunal that recognizes head-of-state immunity could undermine its very purpose. We know who is most responsible for this crime of aggression; it’s Vladimir Putin who must be brought to justice," Mark Ellis, executive director of the International Bar Association and an expert in international law, said in an interview with RBC-Ukraine.

However, there was not enough political will to lift immunity or to establish an ad hoc tribunal. According to experts, the countries that opposed removing immunity from the trio feared that doing so would set a precedent in international law. Since international tribunals are not limited by statutes of limitations, such a precedent could eventually be used not only against Russia.

Among the countries reportedly opposed to lifting immunity were the United States and some G7 member states.

Another concern that slowed down the process was the idea of creating a tribunal against a nuclear power. Yugoslavia or African nations were never major players on the global political stage. Russia, on the other hand, holds a level of authority that is still viewed by some countries as untouchable and threatening.

The situation worsened further when Donald Trump won the US presidential election. Washington immediately announced sanctions against the ICC and withdrew from the group investigating Russian war crimes in Ukraine. At that point, the idea of a tribunal appeared to lose relevance in both the short and medium term.

European compromise

At the beginning of 2025, Iryna Mudra, Deputy Head of the Presidential Office responsible for the creation of the tribunal, stated that the tribunal itself would not be established by the end of the year, but there would be progress. According to her, the tribunal will be created based on an agreement with the Council of Europe, and this model could be fairly considered international.

On May 9, foreign ministers from over ten European countries, led by Kaja Kallas, arrived in Lviv. Addressing the media, she, along with Ukrainian Prime Minister Denys Shmyhal and Foreign Minister Andrii Sybiha, announced their intention to create an international tribunal against Russian aggression. It will be based on the decision of the Coalition of 40 European countries. In other words, the trial of Russia will be modeled after the Nuremberg Trials, except it will take place not in Nuremberg, but in The Hague.

In his speech to the ministers, Denys Shmyhal reported that over three years, Ukraine had recorded more than 167,000 crimes of aggression and war crimes committed by Russia. Russian troops have killed 616 children and injured more than 1,800 others, while another 19,000 have been unlawfully deported to Russian territory.

"40 countries have united in a coalition to create a special tribunal under the Council of Europe for this purpose. A new Nuremberg for the Kremlin. The main task of the Special Tribunal is the investigation, criminal prosecution, and trial of individuals who bear primary responsibility for the crime of aggression against Ukraine," Shmyhal said.

According to Andrii Sybiha, the Council of Europe will be the central institution in this process. The declaration, which has already been called the Lviv Declaration, will initiate the creation of the Tribunal. From May 13 to 15, formal procedural agreements will begin in Luxembourg, which has taken on the role of coordinator. The next step will be an agreement between the Council of Europe and Ukraine. The Tribunal is expected to start its work in 2026.

The fact that, three years into the war, the countries, together with Ukraine, have reached a framework that satisfies or nearly satisfies everyone is undoubtedly a positive signal and a promising trend. However, the question of how to condemn the Russian trio remains open. Although the Tribunal will specifically deal with the crime of aggression, for which the political and military leadership is accused, it is unlikely that Putin will end up in the dock, at least while he remains in the Kremlin.

"Can they be tried in absentia? Yes, they can. But, of course, the limitation is that as long as they are in office, it has limitations. But I think the important signal is that everything can be ready, and nobody is behind the law because this is important," noted Kaja Kallas on this matter.