Special tribunal for crimes of aggression: in absentia, immunities, cooperation

Investigating crimes of aggression is difficult not because of a lack of evidence, but because of procedural restrictions: the immunities of the highest officials, rules for proceedings in absentia, and standards for notification and transfer of materials. These issues will determine the effectiveness of the Special Tribunal.

In December, Lviv State University of Internal Affairs hosted the All-Ukrainian Scientific and Practical Conference «Theoretical and applied problems of legal regulation in Ukraine». Member of the UNBA Committee on criminal law and procedure Iryna Hlovyuk presented a report entitled «Some issues of proceedings under the statute of the Special Tribunal for the crime of aggression against Ukraine».

The speaker recalled the ratification on July 15 this year of Ukraine's agreement with the Council of Europe on the establishment of the Special Tribunal (signed on June 25, 2025). She drew attention to the legislative framework for Ukraine's cooperation with the Tribunal. The Ministry of Justice reported that the Government had supported draft legislative amendments to the Criminal and Criminal Procedure Codes and the Law «On the prosecutor's office». The amendments will concern the transfer of criminal proceedings to the Tribunal, the execution of its requests, and the conduct of procedural actions. The central cooperation bodies are the Office of the Prosecutor General (at the investigation and trial stages) and the Ministry of Justice (at the enforcement stage), and the Prosecutor General is proposed to be given the power to transfer proceedings, information, and evidence.

I. Hlovyuk reported that, according to the Statute, the Tribunal investigates and considers cases against persons who bear the greatest responsibility for the crime of aggression against Ukraine, and its jurisdiction is based on the territorial jurisdiction of Ukraine. The crime of aggression is defined as the planning, preparation, initiation, or execution of an act of aggression by a person who is in a position to effectively control or direct the political or military actions of a state, if the act, by its nature, gravity, and scale, constitutes a gross violation of the UN Charter.

The speaker also drew attention to existing procedural limitations. Official position does not exempt a person from criminal responsibility, but if the indictment concerns the head of state, head of government, or foreign minister, the pre-trial judge does not approve it and orders the proceedings to be suspended until that person ceases to hold office or until the Tribunal receives a corresponding waiver.

A separate section of the report dealt with the rights of participants and proceedings in absentia. Article 19 of the Statute divides rights during the investigation into general guarantees and additional rights for cases where a person is questioned by a prosecutor or national authorities. Proceedings in absentia are possible when the interests of justice so require, provided that the person has unequivocally refused to be present or that all reasonable measures have been taken to ensure their appearance and to inform them. The guarantees are defined as proper notification, the involvement of a defense counsel, and a retrial.

At the same time, the Rules of procedure and evidence should detail the interests of justice, the criteria for the admissibility of forms of notification, and the issue of consent to the judgment or waiver of the right to a retrial and the time limits for submission.

You can view the presentation of I. Hlovyuk's report at this link.