Irina Mudra, OP: The special tribunal for Russia won't be operational by 2025, but there will be significant developments.

When will the Special Tribunal for Russia commence, why has Putin not yet been "served" with an arrest warrant for war crimes, what will happen with Mongolia, which refused to arrest the Russian president, and when will Ukraine see reparations? In an interview with RBC-Ukraine, Deputy Head of the Office of the President Iryna Mudra provided insights.

Since the onset of the full-scale war with Russia, Ukraine has been advocating for the establishment of a Special Tribunal. This tribunal is intended to hold the leadership of the Russian Federation, military personnel, and propagandists accountable for war crimes committed against Ukrainians. However, for three years, Ukraine has struggled to obtain a clear stance from foreign partners regarding the creation of the tribunal and the lifting of immunity for the Kremlin's "trio" – Vladimir Putin, Sergey Lavrov, and Mikhail Mishustin.

At the same time, Ukraine continues to demonstrate in international judicial forums Russia's involvement in numerous war crimes dating back not just to 2022, but to 2014. Ukrainian lawyers and diplomats have achieved some results, but not all international arenas are unified on this issue. This also applies to discussions regarding compensation for Ukraine through reparations that can be obtained from frozen Russian accounts abroad. In an interview with RBC-Ukraine, Iryna Mudra, Deputy Head of the President's Office, discussed the establishment of the Special Tribunal, arrest warrants for Putin regarding war crimes, and Russian finances.

On the Special Tribunal for Russia

– The Special Tribunal. We have been discussing this with our partners since the beginning of the war and initially proposed an ad hoc model, meaning a special tribunal for our case. Our allies were long opposed and suggested various options. What is the current status, and when can we expect the tribunal to launch?

– The idea emerged right after the full-scale invasion in 2022, specifically concerning the crime of aggression, as we understood that the ICC lacks jurisdiction and authority to prosecute for the crime of aggression against Ukraine. At that time, Ukraine had not ratified the Rome Statute, nor had the Russian Federation, and unfortunately, the ICC does not have such powers concerning Ukraine. Therefore, in early 2023, a coalition of states was formed – a Coordinating Group aimed at finding and discussing legal solutions for establishing the tribunal. Currently, the group consists of 41 states.

After transitioning to the Office of the President, I took the lead on this initiative and want to highlight that we have made significant progress in establishing the Special Tribunal. Based on the outcomes of coalition meetings in Vienna and Riga, which I personally attended, we were finally able to agree on the Tribunal's model. It will be established based on an agreement with the Council of Europe, as there were fierce discussions regarding whether the Tribunal would be international or internationalized. Therefore, the model based on an agreement with the Council of Europe will be considered international, meaning it will be an international tribunal.

We have also developed potential solutions regarding the immunities of high-ranking officials from the aggressor states, which have remained a major issue. We remember that some countries in this coalition categorically denied the possibility of lifting immunity from the trio of the main political and military leadership of the aggressor state, while others insisted that no one should enjoy immunity when it comes to the crime of aggression.

In reality, those countries advocating for maintaining immunity argued that it aligns with international law requirements, and they had concerns about creating a precedent that could later be used against their leaders. We understand that there are no statutes of limitations for establishing a tribunal, and they feared that their leaders could also be held accountable for past events by a similar tribunal created by a coalition of other states.

The negotiations were quite challenging. I can say that we have moved away from both the initial and alternative theories. Currently, there are no clear red lines dictating whether immunity should exist or not. Unfortunately, I cannot disclose all the details, as the negotiation process is ongoing. However, we finally have an understanding of how this issue should be addressed in the tribunal's statute and how to approach it. The establishment of the tribunal is now much more realistic than it was last summer (the interview was recorded in December 2024 - ed.).

We have developed a specific roadmap with timelines for how we envision the creation of this tribunal. Therefore, what I can openly say is that there will be a significant shift regarding its establishment in 2025. It will not be operational yet, but much will be accomplished, agreed upon, and finalized to have clarity on the structure of the tribunal, its founding documents, location, and other organizational issues by the end of the year.

– The process of establishing the tribunal is quite slow. Do you think Russia's geopolitical influence is slowing down this process among our partners? For some reason, I believe they are dragging their feet on this issue.

– Our partners are sluggish on all matters, not just this one. Whether it’s about compensation, confiscation, or other issues. In fact, they do not live in the realities and conditions that we do, so for them, it’s just another task among hundreds, while for us, it’s a matter of survival and preserving our country and people. It is evident that Russia is doing everything possible to ensure we do not succeed. Their narratives and participation at the United Nations clearly reflect this. They want to ensure that no legal mechanisms are established.

Let's recall how they resisted the ratification of the Rome Statute. Primarily, this was part of the project of that March agreement in 2022, which stipulated that Ukraine should abandon the ratification of the Rome Statute and the path towards NATO and the European Union. Thus, it is entirely understandable why Russia is doing this, and they will utilize all resources to prevent Ukraine from achieving its goals.

We are currently setting precedents in international law that did not exist before. Let me remind you that the Rome Statute and the Kampala amendments took almost 10 years to adopt. That is, negotiations between countries lasted for a decade. It is not simply about gathering consensus among all countries; there must be a legally binding document for them, which must receive parliamentary support and ratification – this is a massive undertaking. But I believe we have made substantial progress in three years.

– I understand that, but the issue is that we are the victims in this war, and we must prove why a tribunal based on the Ukrainian judicial system rather than a global one is a bad idea.

– This issue is no longer up for discussion. We also categorically insist that there should be no transfer of proceedings. The tribunal will not be established under our jurisdiction.

On the Recognition of Russia's Aggression Against Ukraine Since 2014

– Recently, the European Court of Human Rights (ECHR) finally confirmed through its ruling that Russian troops were indeed present in Donbas and Crimea as far back as 2014. What is the significance of this ruling for us?

– The ECHR established key facts, confirming that Russian military personnel have been present in territories under Russian jurisdiction since May 11, 2014. The ECHR noted the presence of Russian military formations in Eastern Ukraine since April 2014 and the large-scale deployment of Russian troops in Eastern Ukraine no later than August 2014. The ECHR also established that Russia had significant influence over the military strategies of its puppet administrations, providing weapons and other military supplies to the so-called "LPR-DPR" in substantial quantities since their inception.

Moreover, in subsequent months and years, Russia conducted artillery shelling upon requests from the occupying formations. Now, thanks to the ECHR's ruling, the presence of Russian military personnel in Donbas and Russia's control over these territories since 2014 constitutes the first legally confirmed fact by an international judicial institution.

This legal foundation is crucial for our arguments in foreign policy. Our arguments will now be supported by legal facts. Not merely our perspective or accusations, but confirmed legal facts established by an internationally recognized judicial institution regarding how armed aggression occurred, when the aggression actually began, and what human rights violations Russia has committed.

Representatives of Russia and their supporters on various international platforms can no longer unconditionally assert that until 2022, Russia had no involvement in hostilities in Eastern Ukraine. Consequently, a positive ruling from the ECHR regarding inter-state cases of Ukraine against Russia will not only have legal ramifications for the aggressor state but may also lead to the application of additional sanctions of various kinds.

Such a ruling indeed provides Ukraine with a powerful tool for further negotiations with international partners regarding Russia's violations of citizens' rights in temporarily occupied territories since 2014. As a result, we can discuss payments from aggressors to those whose rights have been violated. This, I remind you, is their international obligation.

We know that there are already binding decisions from investment arbitration regarding compensation for damages inflicted by the occupiers in temporarily occupied territories. Therefore, when the time for payments arrives, it will be crucial to remind partners that Russia began its aggression against Ukraine not on February 24, 2022, but significantly earlier. Although we do not have a corresponding UN Assembly resolution recognizing Russia's aggression prior to February 24, 2022, this decision from the European Court of Human Rights indeed provides us with a strong basis