Carl Bildt is the former prime minister and foreign minister of Sweden and the co-chair of the European Council on Foreign Relations.
Russia’s illegal invasion of Ukraine has been marked by atrocities and has led to international condemnation and a demand for accountability. And as states, courts and civil society scramble to collect and preserve evidence, even with considerable will and ample resources, there’s great danger that Ukrainians will see little justice done.
Of all Ukraine’s partners, however, the European Union is best poised to ensure maximum possible accountability, and it can do so by backing a special war crimes chamber within the courts of Ukraine.
Even as the International Criminal Court (ICC) is currently investigating war crimes, crimes against humanity and genocide in Ukraine — including those committed since Russia’s initial 2014 invasion of Crimea and the Donbass — the court lacks jurisdiction over the central crime directly attributable to Russian President Vladimir Putin and his top officials: the crime of aggression.
And while the ICC must stretch its limited resources to exercise jurisdiction over such grave crimes all around the world, proving cases against the senior leaders responsible for these offenses is painstaking and difficult. Its prosecutor can only be expected to bring charges against a handful of suspects for crimes in Ukraine.
Beyond the ICC, at least 10 European countries have also opened criminal investigations into international crimes in Ukraine so far, many under the principle of universal jurisdiction. Such proceedings have been important in securing a measure of justice in situations like Syria, but they are unlikely to result in charges against more than a further handful of suspects in Ukraine.
And while some of these countries who have opened criminal investigations, including Ukraine, do have jurisdiction over the crime of aggression, under customary international law, top Russian officials have immunity from prosecution before any national court.
Additionally, opening cases is the easy part, it’s not an indication of progress. The Prosecutor General’s Office of Ukraine has stated that it has opened investigations into some 10,000 atrocities so far. However, national authorities have already worked for years on the international crimes cases from the 2014-2022 wave of the Russian invasion, with few results. And with the tidal wave of crimes since February 24, they are now completely overwhelmed — any justice system in the world would be.
Helping through this process, the United Kingdom, the United States, the Council of Europe and the EU are among those advising and training the nation’s prosecutors. Some of these efforts do have real value, while others are simply gestures of goodwill with little effect. And even with this assistance, it’s unlikely that Ukrainian prosecutors will be able to develop cases against more than several low-level, direct perpetrators, or that this approach will build a domestic system prepared to handle war crimes cases for years to come.
In sum, the gaps in accountability for Ukraine are threefold: There must be justice for the crime of aggression; there must be a way to hold those most responsible for grave violations of international law accountable; and the international community must begin to take measures now to strengthen Ukraine’s judicial system, so that it is capable of handling war crimes long after international attention has turned elsewhere — which it inevitably will.
Thankfully, there is a way to address these gaps.
The answer lies with a court for aggression that is international in character, and before which Putin and other top Russian officials would not have immunity from prosecution.
Along these lines, some have already suggested that Ukraine could sign a treaty with the United Nations, following a resolution from the U.N. General Assembly, to create a special tribunal on aggression. However, this solution raises valid concerns about double standards: If the U.N. creates a tribunal for aggression against Ukraine, why didn’t it do so for the U.S.-led invasion of Iraq?
Ultimately, a concerted, multilateral response to aggression in Ukraine should raise international legal standards for all. And given past hypocrisy at the global level, the best starting point to create such a court may be a regional partnership with Ukraine.
The EU is best placed to lead such an effort. It is already partner to the successful Kosovo Specialist Chambers — a model that could be adapted to this case as well. This month, the EU Commission proposed strengthening Eurojust’s mandate to include collection and preservation of evidence in Ukraine, and this initiative could form the nucleus for a future court’s prosecution office.
The EU could then take the next step to agree with Ukraine to create a highly internationalized prosecution unit within the country’s prosecutor’s office, with international judges and staff joining a special war crimes chamber of Ukraine’s judiciary. Or, Ukraine and international partners could agree to create a court outside of Ukraine’s domestic system with hybrid staffing, operating under its own criminal and criminal procedure codes.
In Bosnia and other situations, this way of working side-by-side with international experts on initial cases has proven to be the best way to build long-term capacity. And as Ukraine’s judicial officials become expert, the international component could slowly withdraw, the nature of the court shifting from international to national over time. Then, if high-level suspects were arrested only many years later, the international component could be revived for those specific trials.
There are many possibilities here. For example, such a mechanism could even have multiple partners.However, any option chosen should reflect the demands of the Ukrainian government and civil society, and apply lessons from previous experiences in international justice.
The EU has already demonstrated tremendous support for Ukraine, and in responding to the ongoing brutality, it may just be the country’s perfect partner to establish an effective mechanism for justice.
