Critical international legal analysis of the Agreement between the Council of Europe and Ukraine on the establishment of a Special Tribunal for the crime of aggression against Ukraine

Puzyreva Yuliya Vladimirovna ORCID: 0000-0003-4448-2200 PhD in Law Academic Secretary; Dissertation Council 03.2.006.01; Kikot Moscow University of the Ministry of Internal Affairs of Russia Moscow, Akademika Volgina str., 12 yuliya_dugina@mail.ru

On June 25, 2025, the Council of Europe signed an Agreement with the leadership of Ukraine on the establishment of a Special Tribunal for the Crime of Aggression against Ukraine (hereinafter referred to as the Special Tribunal) (Agreement between the Council of Europe and Ukraine on the Establishment of the Special Tribunal for the Crime of Aggression against Ukraine. June 25, 2025 [Electronic resource] // URL: https://docs.cntd.ru/document/1902312 (date of request: 09/15/2025)). This decision was met with a lightning response from the Russian Foreign Ministry, which stressed that "the work and decisions of this body will be negligible for us. We will regard the accession of any state to it as a hostile demarche reflecting a desire not to resolve, but to worsen the current crisis around Ukraine. Restrictive measures provided for in the legislation of the Russian Federation will be taken with respect to such a tool of contract justice. The actions of its most zealous enthusiasts will also be given a criminal legal assessment" (On the signing of the agreement between the Council of Europe and Ukraine on a "Special Tribunal". Briefing by the official representative of the Russian Foreign Ministry, M.V. Zakharova, June 26, 2025 [Electronic resource] // URL: https://www.mid.ru/ru/foreign_policy/news/2032397/#8 (date of request: 09/15/2025).

The legal decisions taken between the Council of Europe and Ukraine have raised an important and complex legal question on the agenda: how possible is it to create a new international criminal justice body (hereinafter referred to as the IJJ) under the auspices of an international regional organization, bypassing the United Nations (hereinafter referred to as the UN) in favor of the interests of Western states and a unipolar view of the ongoing conflict in Ukraine? In order to resolve this issue, the article will analyze the historical background, expert legal approaches and decisions of the main bodies of the Council of Europe on the creation of a Special Tribunal based on them, after which objective legal and doctrinal counterarguments will be presented to invalidate the concluded agreement, as well as to challenge the legitimacy of the new model of the creation of the Independent The Special Tribunal.

For the first time, the idea of creating an interim OMA under the auspices of the Council of Europe arose in April 2022, when the Parliamentary Assembly of the Council of Europe (hereinafter PACE) discussed The issue of the operational establishment of a "special international criminal tribunal with a mandate to investigate and prosecute the crime of aggression allegedly committed by the political and military leadership of the Russian Federation" (Parliamentary Assembly. Recommendation 2231 (2022). The Russian Federation’s aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes. [Electronic resource] // URL: https://pace.coe.int/pdf/4507c7b51ec344aa23f7ad754b1bbd2673ccd9a0159c82211c614ea329f2905e/rec.%202231.pdf (date of request: 09/15/2025)).

The legal initiatives were preceded by research by Western experts on the development of various approaches to models for the creation of criminal courts for the crime of aggression against Ukraine, ranging from the option of copying the mechanism for establishing the Nuremberg or Tokyo tribunals, ending with proposals for the development of a hybrid (mixed) court based on existing practices in the field of international criminal justice (The Russian Federation's aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes. Report. Committee on Legal Affairs and Human Rights. Doc. 15510. 26 April 2022. [Electronic resource] // URL: https://pace.coe.int/pdf/4bc8a7831b0c055b84c3075c8c7b9a964f1262035f204342fd4dea431f22d365/doc.%2015510.pdf (date of request: 09/15/2025)). Considering that these options turned out to be not so acceptable for Ukraine and Western states in terms of rapid and successful implementation, a new model was developed for creating a special NGO through Ukraine's cooperation with the Council of Europe. It should be noted that in parallel, a project was being developed to establish such a judicial body under the auspices of the European Union ^[1]. However, given the organization's limited membership and a number of other controversial arguments, the decision was made in favor of the Council of Europe.

Within the framework of the Western concept of establishing a Special Tribunal, the following legal algorithm for legalizing decisions in this area was proposed: Ukraine was instructed to apply to the Committee of Ministers, based on Article 15 (a) of the Statute of the Council of Europe, with a request for recommendations to member States to adopt a "common policy" regarding support for the Special Tribunal. Such an appeal grants the Council of Europe the authority to conclude an agreement with Ukraine on the establishment of this body (The Russian Federation's aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes. Report. Committee on Legal Affairs and Human Rights. Doc. 15510. 26 April 2022. [Electronic resource] // URL: https://pace.coe.int/pdf/4bc8a7831b0c055b84c3075c8c7b9a964f1262035f204342fd4dea431f22d365/doc.%2015510.pdf (date of application: 09/15/2025)), and the member States of the Council of Europe acquire a leading role in this process, initiating negotiations, providing political and financial support to the tribunal and participating in the appointment of its members in accordance with the procedures established in the treaty. After the adoption of such an agreement, the Council of Europe may enlist the support of the UN General Assembly, the European Union or other regional organizations, which will provide support for a new joint resolution on aggression against Ukraine.

The answer to the question of why the jurisdiction of the Special Tribunal should include only one member, the crime of aggression, lies in the fact that this is the only international crime for which the International Criminal Court (hereinafter referred to as the ICC) cannot currently exercise its jurisdiction. In 2010, the Kampala Review Conference of the Rome Statute of the ICC adopted amendments defining the concept of aggression as an international crime and its elements, as well as the conditions for the Court to exercise jurisdiction over this crime. In 2017, at a meeting of the Assembly of States Parties to the ICC Statute, a resolution was adopted giving effect to the Court's jurisdiction on aggression from July 17, 2018. A serious issue was also raised on how to harmonize the conditions for the exercise of this jurisdiction (especially in paragraphs 4, 5 of art. 15 bis of the Statute) with the rules of jurisdiction of the Court in relation to other international crimes under art. 12 of the Statute in order to establish a jurisdictional framework that is uniformly applied to all major international crimes and develop a single a unified standard for the exercise of jurisdiction by the Court. Following the meeting of the Assembly of States Parties to the Statute, no decision was taken on this complex and controversial issue.

In 2025, the issue of finalizing the provisions of the Statute in terms of its jurisdiction, which the States failed to resolve, was again put on the agenda of the special session of the Assembly of States Parties to the Statute on the revision of amendments relating to the crime of aggression. Nevertheless, following the results of the special session, it was decided to continue work on this important topic and meet again to discuss the proposals of the States in 2029 (ICC-ASP/S-1/Res.1. Adopted at the 5th plenary meeting, on 9 July 2025, by consensus. ICC-ASP/S-1/Res.1. The review of the amendments on the crime of aggression [Electronic resource] // URL:https://asp.icc-cpi.int/sites/default/files/asp_docs/ICC-ASP-S-1-Res.1-ENG.pdf (date of request: 09/15/2025)). As A.G. Kibalnik notes in this regard: "... it is currently impossible to speak about effective international criminal prosecution for the crime of aggression" ^{[2, p. 300]}.

The impossibility of administering justice under the auspices of the ICC for the crime of aggression was the basis for the conclusion of an agreement between the Council of Europe and Ukraine on a special tribunal. In this context, it should be noted, not without irony, that two Western powers, permanent members of the UN Security Council – France and the United Kingdom, which have made a decisive contribution to the international universal criminalization of aggression, have been blocking for many years the resolution of the issue of the ICC jurisdiction for the crime of aggression. However, they are promptly involved in supporting and developing the legal framework for the administration of justice for the crime of aggression within the framework of the new regional and artificially created regional Law on Ukraine.

The organizational and legal scheme for the establishment of the Special Tribunal, developed by Western experts and supported by Western States, was promptly implemented by the Ukrainian authorities. So, on May 13, 2025, Ukraine wrote to the Council of Europe with a request to establish a Special Tribunal for the crime of aggression against Ukraine within the framework of the Council of Europe, after which the Committee of Ministers on June 4, 2025, at the 1530th meeting of Deputy Ministers, decided to establish a Working Group on the Special Tribunal, open also to observer States and for the European Union, with a mandate to study draft legal documents submitted by Ukraine and prepare the decisions necessary for the establishment of such a tribunal within the Council of Europe. Subsequently, the Committee of Ministers authorized the Secretary General of the Council of Europe, by a decision adopted on June 24, 2025 at the 1532nd meeting of Deputy Ministers, to conclude an agreement between the Council of Europe and Ukraine on the establishment of a Special Tribunal, including its Statute.

Based on the analysis of the agreement concluded by the parties and the adopted Statute of the Special Tribunal, it follows that the Tribunal was established within the framework of cooperation between the Council of Europe and Ukraine. The jurisdiction of the Special Tribunal is based on the territorial jurisdiction of Ukraine. The Special Tribunal will follow internationally and regionally recognized standards of due process and the rule of law, such as the provisions of the 1950 European Convention for the Protection of Human Rights and the 2024 Ljubljana-Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and Other International Crimes. (emphasis added by the author), ensuring a fair trial, respect for the rights of participants in the proceedings and the independence of the judicial system. The tribunal's work will be assisted by structures operating under the Council of Europe (the European Court of Human Rights) and the European Union (the International Center for the Investigation of the Crime of Aggression against Ukraine, Eurojust).

Concrete practical actions to form the organizational and material base for the work of the Special Tribunal will be implemented presumably in 2026 after the States provide its financial and political support under the Expanded Partial Agreement.

Western legal arguments and arguments legalizing the possibilities of the Council of Europe to create a new independent State include the following. Firstly, the initiators of the concept of creating a Special Tribunal note that the competence of the Council of Europe to assist Ukraine in establishing a mechanism for international criminal responsibility is based on the fact that Russia's aggression against Ukraine, which the Council of Europe states, constitutes a serious violation of the Charter of this organization. In this regard, in response to large-scale human rights violations committed on the territory of one of the member States of the Council of Europe, all member States of the Council of Europe can unite to achieve the goals of the Organization and protect its common ideals and principles in accordance with Article 1 of the Charter. In addition, the preamble to the Statute of the Council of Europe establishes a clear link between the pursuit of peace and the administration of justice, since justice and responsibility for gross violations of human rights are the key to restoring peace.

Secondly, as representatives of Western doctrine point out, the Council of Europe, being an international organization established on the basis of a treaty, in accordance with general international law has the legal capacity to interact with member States within its competence, including through the conclusion of treaties. At first glance, this statement concerns general legal capacity and does not correlate in any way with the right to interact in the implementation of the institution of individual responsibility of officials for international crimes. However, according to Western lawyers, if we apply the doctrine of implied competencies of international organizations, according to which an organization has the powers necessary to achieve its stated goals and objectives, then the actions and decisions of the Council of Europe are fully justified ^[3]. In this regard, from the point of view of the Western approach, if Russia's aggression against Ukraine declared by the Council of Europe is considered a threat to human rights and fundamental freedoms in Ukraine (in particular) and in the Council of Europe region as a whole, then the Council of Europe has the right to conclude an agreement with Ukraine, the purpose of which will be to ensure joint actions in response to this threat and ensure to promote and fully implement the statutory goals of the Council of Europe for the observance and realization of human rights and fundamental freedoms. In this context, it should be noted that since the Nuremberg trials, aggression has been considered the most serious crime against international peace and security ^{[2, p. 300]}, human rights are far from the key object of encroachment.

Thirdly, Ukraine has the right to cooperate with other subjects of international law, including international intergovernmental organizations, therefore it has the opportunity to officially invite the Council of Europe to assist in the creation and work of the Special Tribunal. As arguments in Western doctrine, the following examples of provisional institutions established through the appeal of States to the United Nations are presented: the Special Court for Sierra Leone was established after the appeal of Sierra Leone, the Extraordinary Chambers in the courts of Cambodia - after the appeal of Cambodia, the Special Tribunal for Lebanon - after the appeal of Lebanon. As for regional intergovernmental organizations, in this context, an example of South Sudan's appeal to the African Union in order to establish a Hybrid (mixed) Court for South Sudan is presented ^{[1; 3]}.

With this, the study of Western arguments should be completed and proceed to a substantive analysis of legal and doctrinal counterarguments that will challenge the legitimacy of the new model of the creation of the WMD and the Special Tribunal established on its basis.

First, it should be emphasized that the creation of a Special Tribunal by an international regional organization (the Council of Europe) undermines the foundations of international law and the powers of the United Nations in the light of maintaining peace and security. The Council of Europe has no legal competence to assess Russia's actions, since the right to determine the existence of an act of aggression in accordance with the UN Charter belongs only to the UN Security Council. As A.B. Mezyaev rightly noted in one of his works, when discussing the legal mechanisms for creating new CSOs, "Nemo dat quod non habet – No one can transfer more rights to another than he has himself," otherwise the subject of such decisions goes beyond his powers, that is, ultra vires acts ^{[4, p. 27]}.

Secondly, as the Russian Foreign Ministry has rightly and categorically defined, "from a legal point of view, the Council of Europe, as an international organization, has the right to exercise only those powers vested in it by the member States. As is well known, the administration of criminal justice is not one of the powers of the Council of Europe. At the same time, criminal justice is a sensitive area of State sovereignty. It is impossible to presume the transfer of relevant functions or to talk about their tacit delegation from States to an international structure. The Strasbourg-based structure has no right to establish a "special tribunal" because it is not a regional organization for maintaining peace and security. If even the UN General Assembly cannot create a criminal tribunal by its decision, does anyone really allow the possibility that the Committee of Ministers of the Council of Europe has such powers?" (Speech by Deputy Permanent Representative of the Russian Federation to the OSCE Mikhail Buyakevich at a meeting of the OSCE Permanent Council, April 25, 2024 // [Electronic resource] // URL:https://www.mid.ru/ru/foreign_policy/news/1946764 / (date of access: 09/15/2025)).

The presented position of the Ministry of Foreign Affairs of Russia is disclosed in sufficient detail in the domestic and foreign doctrine of international law. Thus, many international lawyers recognize the existence of "implied competence" in international intergovernmental organizations, which is necessary for the organization to successfully achieve the goals of its institution, but was not initially provided for by the provisions of the constituent act ^{[5, 6]}. However, when exercising such competence, international organizations cannot assume new tasks beyond the founding agreement, and the implied subsidiary powers must be strictly derived either from the goals and functions of such an organization, or follow from the provided functionality of the organization itself or its bodies ^[7]. At the same time, the constituent acts of international organizations should be "interpreted in good faith in accordance with the usual meaning that should be given to the terms of the treaty in their context, as well as in the light of the object and objectives of the treaty" (Article 31 of the Vienna Convention on the Law of Treaties of 1969).

According to Article 1 of the Statute of the Council of Europe: "The purpose of the Council of Europe is to achieve greater unity among its Members in order to protect and implement the ideals and principles that are their common heritage, and to promote their economic and social progress." At the same time, it is stipulated that "this goal will be achieved through the efforts of the Council of Europe bodies through consideration of issues of common interest, conclusion of agreements and joint actions in the economic, social, cultural, scientific, legal and administrative fields, as well as through the maintenance and further implementation of human rights and fundamental freedoms." Commenting on the statutory goals of the Council of Europe, scientists note that "in general, intergovernmental cooperation within the Council of Europe is aimed at developing common standards in the field of human rights" ^{[8, p. 27]}, which has nothing to do with the formation of international criminal mechanisms for the administration of justice for the most serious international crime – aggression. As noted by G.I. Tunkin, the implementation of additional powers by an international organization within the framework of its implied competence in no way implies a change and expansion of its founding agreement ^{[9, p. 296]}.

Thus, based on the general violations related to the assignment of powers by the Council of Europe beyond the constituent purposes, the bilateral Agreement concluded with Ukraine can be invalidated on the basis of individual articles of Part V. Invalidity, termination and suspension of treaties (Section 2: Invalidity of treaties) of the Vienna Convention on the Law of Treaties, 1969

Thirdly, the sovereign equality of States implies the immunity of officials from foreign criminal jurisdiction. The acts of officials are the acts of the State, and one State does not have the right to judge another State in its courts ^[10], therefore States cannot transfer powers to an international organization that they themselves do not possess. Thus, the Council of Europe cannot "overcome" the immunity of Russian officials, and the developed mechanism for the administration of international criminal justice is legally invalid and cannot create any obligations for Russia.

Fourthly, the option used to create an independent state through cooperation between Ukraine and the Council of Europe, bypassing the UN, does not correlate in any way with the established and proven models of establishing temporary independent states over many decades and, undoubtedly, raises many questions. As A.G. Volevodz notes, "the international criminal justice system at the current stage of its development includes: ad hoc international criminal tribunals established by the UN Security Council as subsidiary bodies; mixed (hybrid) tribunals of two types: (1) established in accordance with or on the basis of treaties between States and the United Nations and (2) formed by temporary UN administrations in the territories of states where peacekeeping operations are conducted; national courts, whose jurisdiction includes the consideration of cases of international crimes involving international judges and other participants in criminal proceedings" ^{[11, p. 3]}.

The legal basis for the creation of the first group of CSOs are the resolutions of the UN Security Council (hereinafter UNSC), such as UNSC Resolution No. 827 of May 25, 1993 on the establishment of the International Criminal Tribunal for the Former Yugoslavia. The legal basis of the second group of WMD is represented either by bilateral treaties between States and the United Nations (the Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon in 2007), or by a set of acts adopted by the UN Security Council and the UN Interim administrations established in the process of peacekeeping (UN Security Council Resolution 1244 (1999) of June 10, 1999 and the Order United Nations Interim Administration Mission in Kosovo (UNMIK) No. 1999/5 dated September 4, 1999 "On the establishment of the ad hoc Court of Last Resort and the ad hoc Prosecutor's Office"). And, finally, the third group of temporary courts, which, as A.G. Volevodz notes, are "internationalized courts" ^{[11, p. 5]} – national courts whose jurisdiction includes justice in cases of international crimes involving international judges and other participants in criminal proceedings, are established on the basis of national acts of States under certain conditions. terms of cooperation with the UN. For example, a War Crimes Unit was established in the structure of the Court of Bosnia and Herzegovina after the Law was passed in 2004 on the transfer of cases from the International Criminal Tribunal for the Former Yugoslavia to the Prosecutor's Office of Bosnia and Herzegovina and on the use of evidence collected by the International Criminal Tribunal for the Former Yugoslavia in proceedings in the courts of Bosnia and Herzegovina.

The presented models of the establishment of temporary prisons and their legal bases have been studied in detail in the domestic and foreign doctrine of international law ^{[12, 13]}, which allows us to assert the recognition of the currently formed model approaches to the establishment of non-permanent prisons for a wide variety of situations developing in States and requiring support from the international community in relation to the administration of international criminal justice or national justice with international participation. The mechanism for the creation of a Special Tribunal for Ukraine in 2025 does not fall under any of the existing models of functioning of modern OMS.

In addition, the use by Western experts to justify the creation of a Special Tribunal of precedents for the establishment of temporary special courts through the implementation of a mechanism for the appeal of sovereign States to international regional organizations is also legally pointless. Thus, the reference to South Sudan's appeal to the African Union with a request to create a Hybrid (mixed) court for South Sudan is not applicable in relations between Ukraine and the Council of Europe regarding the creation of a Special Tribunal. It should be noted that the African Hybrid Judicial Authority was established as a transitional justice mechanism (emphasis added) under the 2015 peace agreement signed by the Government of South Sudan and the Sudan People's Liberation Movement, which was confirmed in the Updated Peace Agreement (R-ARCSS) of September 2018. The second important point is the Hybrid Court's powers to investigate and prosecute those responsible for serious crimes committed in South Sudan since December 15, 2013, including the deliberate killing of civilians, rape and other types of sexual violence, forced recruitment of children, forced displacement and other crimes. The jurisdiction does not include the international crime of aggression, which only the UN Security Council has the right to determine. Finally, it should be noted that the competence of the African Union and the goals of its creation, stipulated in the Charter, are much broader and more diverse than the goals of the creation of the Council of Europe. In addition, the 2000 Charter of the African Union provides for the right to interfere in the internal affairs of member States if war crimes, genocide and crimes against humanity are committed on the territories of States.

Fifth, certain legal acts are of concern, which, based on an analysis of the provisions of the Statute of the Special Tribunal, among other human rights treaties, are indicated as the basis for cooperation and poisoning justice, such as the Ljubljana-Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and Others. international crimes of 2024 This treaty was adopted within the framework of non-governmental initiative mechanisms, bypassing the UN and other international organizations, and is an agreement purporting to establish new provisions of the substantive part of international criminal law, forming the obligations of States to create special legal regimes for the investigation and prosecution of crimes of genocide, crimes against humanity, war crimes and other international crimes.. In its content, the Convention resembles a "collection of extracts" from many modern universal and regional treaties on combating ordinary crimes and providing legal assistance in criminal matters, the provisions of which are adapted to international crimes. At the same time, the text of the 2025 Agreement does not contain references to existing universal and significant regional regulations in the field under study. This leads to the question of what recognized legal acts and principles the participants in a potential international judicial process plan to follow in order to achieve impartiality and legality?

Summarizing the general conclusions in the article, it is necessary to focus on the following substantive theses:

- the provisions of the Charter of the Council of Europe in no way imply the competence of this organization to create and ensure the work of the interim special committee for the consideration of the crime of aggression, even with the potential application of the doctrine of implied competencies of international organizations.;

- The creation of a Special Tribunal within the Council of Europe does not ensure its international, independent and legitimate character;

- an illegitimate structure in the field of international criminal justice, created with the support of an international regional organization (the Council of Europe), has no right to qualify a crime of aggression bypassing the UN Security Council and, moreover, encroach on the immunities of officials of the Russian Federation. At the same time, if the issue is treated more broadly, then the immunities of officials of the Republic of Belarus and the Democratic People's Republic of Korea, against whom Western states are forming accusations about the situation with Ukraine.;

- The mechanism for creating a Special Tribunal does not fall under the proven and well-established models of the formation of a Special Tribunal, and the establishment of an ad hoc Special Tribunal based on agreements between the state and an international regional organization with competence in the field of human rights protection, bypassing the UN, is unlawful.;

- There are concerns about another substitution by Western states of the existing principles and norms of international law with new emerging rules, standards and illegitimate precedents, which may be perceived by individual states as a guide to action. In particular, studies are currently being conducted in foreign doctrine on the prospects for the creation of a Special international tribunal against Israel for criminal prosecution of aggression against Iran with the approval of the mechanism of establishment laid down by the agreement of the Council of Europe and Ukraine.

In the current situation, we believe that the Russian Federation needs to actively present its counterarguments on the platforms of international organizations under the Council of Europe and Ukraine Agreement on the establishment of a Special Tribunal and defend the objective historical, political and legal prerequisites for the start of a special military operation in 2022.

The article is published in its final version as approved following the last positive peer review recommending acceptance for publication. It incorporates revisions made by the author in response to prior negative peer review reports that did not recommend publication. All peer review reports, including initial negative reviews, are published in open access alongside the article. All versions of the author’s revisions are archived in the publisher’s repository and may be made available upon reasonable request in accordance with Elsevier’s editorial policies and applicable data availability requirements.
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