The full programme can be seen here. 

 3rd Anniversary of Russia’s Full-scale Invasion of Ukraine:

The Role of the Council of Europe in the pursuit of Peace, Justice & Accountability

Dublin City University, 27 February 2025

Towards a Special Tribunal for Ukraine within the Framework of the Council of Europe

Jörg Polakiewicz

Introduction

• Distinguished guests, experts, ladies and gentlemen,
• Thank you very much for the privilege to speak today on the topic ‘towards a Special Tribunal for Ukraine within the Framework of the Council of Europe’. I would like to start by praising the organisers for having put together such an interesting conference schedule with many distinguished speakers.
• I note that the next panel will be discussing the prospects, politics and practicalities of a Special Tribunal for the Crime of Aggression against Ukraine.
• All this has become more complex but also urgent following the recent change of US policy. And so, I will try to ‘set the stage’ for this panel by providing a summary of developments regarding the establishment of a special tribunal, and particularly how the Council of Europe and its institutional framework is engaged in these discussions.

Background to the Core Group

• Shortly after the 2022 full scale invasion began, a group of states dedicated to achieving justice for Ukraine began discussing how to create a tribunal for the crime of aggression against Ukraine. This so-called ‘Core Group’ is now some 40 states strong, mainly comprising CoE member states, G7, Australia, Costa Rica and Guatemala.
• The Core Group is composed of the legal advisers from the relevant ministries of participating states as well as from the Council of Europe and EU legal services, some of the finest legal minds out there with whom I had the privilege to work over the last two years as the representative of the Council of Europe.
• This was a truly extraordinary voyage. We worked particularly closely with our colleagues from the EU legal services and the Ukrainian team led by Anton Korneyvich, whose resilience and determination I deeply admire.

• Creating a special tribunal for a crime that has never been prosecuted since Nuremberg and Tokyo is no small task. In the Core Group, we were guided by the concern to fill the accountability gap that deplorably exists for the crime of aggression without undermining the significant progress that the international community has collectively achieved, in particular through the ICC.
• Complementarity with the ICC was a guiding principle throughout our work and is fully reflected in the draft legal instruments.
• The Core Group had to address many difficult questions such as how any such tribunal would look like, the law it would apply, the application of immunities, and similarly complex issues which have strong political implications.
• The Core Group has made important progress and is fine-tuning the precise configuration of all of these matters. A final text is within reach.
• But let me first speak to the role of the Council of Europe in these discussions, as well as in the foreseen tribunal architecture.

The role of the Council of Europe

• In the Reykjavik Declaration, the Heads of State and Government decided that the Council of Europe should participate, as appropriate, in relevant consultations and negotiations and provide concrete expert and technical support to the process.
• Since then, the CoE role evolved from providing merely support to present the most realistic option of a legal framework for the establishment of the tribunal.
• Early last year, the Core Group began considering a new model for the Special Tribunal. In this ‘Council of Europe’ model, the tribunal would be established through a bilateral agreement between the Council of Europe and the Government of Ukraine, with the Statute of the Special Tribunal annexed to this agreement. A separate enlarged partial agreement, within the institutional framework of the Council of Europe, would establish a Management Committee responsible for financing the Special Tribunal and assisting in other administrative and managerial aspects of its operation.
• Not long after this ‘Council of Europe’ model idea emerged, the Committee of Ministers in April 2024 gave a stronger mandate to the Secretary General of the Council of Europe to prepare any necessary documents for the Core Group. Since receiving this revised mandate, my team and I have been preparing draft legal instruments for discussion within the Core Group.
• This Council of Europe model has now gained substantial support for a variety of reasons. Indeed, PACE Resolution 2256 described it as “the best feasible” option.
• At a seminar held in Strasbourg in April last year, leading international experts – including Professors Claus Kreß, Dapo Akande, Chiara Giorgetti, and Anne Peters – confirmed that the creation of a special tribunal within the institutional framework of the Council of Europe was legally feasible.
• I note that international criminal law has a rich history of examples of ad hoc or internationalised tribunals created through cooperation with international organisations. This was done for Cambodia, Sierra Leone, Lebanon, the Extraordinary African Chambers, and now for The Gambia, to name just a few.
• There are other reasons why one may argue that the Council of Europe is well placed to assist in the establishment of a special tribunal. Creating the Tribunal under the umbrella of the Council of Europe would anchor it within an existing institution. It could thus draw on the Council’s institutional infrastructure and know-how to support both the negotiation and operational phases of the tribunal – whether that be through legal frameworks, mutual assistance, the selection of judges and prosecutors, or the mobilisation and coordination of resources.
• The Council of Europe also brings an essential dimension of legitimacy. We know that the tribunal’s perception by the international community, defendants, and the victims of the crime will be key to the Tribunal’s success. This legitimacy is strengthened by the Council of Europe’s commitment to promoting and upholding internationally recognised human rights standards and involving civil society. The fact that both the affected and aggressor states were members of the organisation at the time the aggression commenced also has important implications for legitimacy.

The substantive issues

• From the beginning, the following four substantive issues were particularly contested: immunities, jurisdiction, trials in absentia, and the definition of the crime of aggression. At its latest meeting (3-4 February last), the Core Group identified the contours of a package-deal – a compromise on all four issues which we hope to be finalised and consolidated at the forthcoming meeting in Strasbourg in March. The resulting texts will then have to be endorsed at political level.
• For the time being, the draft legal instruments are still confidential. I hope that you will understand that I cannot enter into much detail today. Allow me just to stress two points.
• First, under the ‘Council of Europe option’, the Special Tribunal would be established under the auspices of the Council of Europe, an international governmental organisation, and can thus be described as ‘international’ in form. Its jurisdiction would however be firmly rooted in Ukraine’s territorial authority, ‘internationalising’ prosecutions that are already being undertaken by national prosecutors from Ukraine and other countries collaborating within ICPA.
• Second, there is consensus that alleged perpetrators will not be able to hide behind functional immunity. Investigations will be launched against the leadership of the Russian Federation, possibly also of Belarus, and indictments prepared. Functional immunity must, however, be distinguished from personal immunity of the so-called troika (head of state, head of government, foreign minister) as long as these persons hold office, and their immunity has not been waived. The Council of Europe has not powers comparable to those of the UN Security Council which can pierce the veil of personal immunity of troika members, a foundational principle of international law.

Conclusion

• Today is the 1099th day of Russia’s aggression.
• At last year’s Munich security conference, the then Estonian PM Kaja Kallas said “this is the European hour, and we need to rise to the challenge. It’s on us. To defeat Russia, we need to think out of the box. That is what Russia is really afraid of.”
• These words are even more true after this year’s Munich security conference and the U-turn in US policy towards Ukraine.
• We have come very far in our discussions among lawyers within the Core Group and the conclusion of this process is within reach. We expect to finalise the required legal instruments at technical level in a couple of weeks, at the Core Group meeting in Strasbourg.
• Ultimately, it will be up to governments to decide whether they want to  commit to what we have prepared.
• It is reassuring that earlier this week, 93 states voted in the UNGA for a resolution which emphasises “the need to ensure accountability for the most serious crimes under international law committed in the territory of Ukraine through appropriate, fair and independent investigations and prosecutions at the national or international level and ensure justice for all victims and the prevention of future crimes.”
• I am convinced that the Council of Europe model provides a sound legal basis for the establishment of a special tribunal, thereby closing the accountability gap for the supreme crime under international law.
• By providing support to the establishment of a special tribunal, we defend the very values and principles on which the Council of Europe was founded 75 years ago.
• In 1949, the founding states of the CoE, among them the Irish Republic, adopted a statute whose preamble expresses the conviction “that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation.”
• 75 years later, let us unite again based on this shared commitment to support our member state Ukraine fighting for its survival as a free and sovereign nation.
• Thank you for your attention and I look forward to the rest of the presentations.