OBSERVARE
Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
VOL. 16, N.º 1
May-October 2025
497
NOTES AND REFLEXIONS
ADDRESSING RUSSIAN AGGRESSION AGAINST UKRAINE: THE
IMPERATIVE FOR A SPECIAL TRIBUNAL UNDER INTERNATIONAL AND
UKRAINIAN LEGAL FRAMEWORK
AMIT UPADHYAY
aupadhyay@jgu.edu.in
Associate Professor at Jindal Global Law School, O.P. Jindal Global University (India), and holds
an LL.M. in European and International Law from Freie Universität, Berlin, Germany. His research
interests include Constitutional Law and Human Rights Law. He has been awarded several
scholarships and fellowships to participate in international academic conferences and programs
by organizations like the Robert Bosch Foundation, German Academic Exchange Service (DAAD),
and International Institute of Human Rights, Strasbourg. His recent publications include a co-
authored article titled "A case for recognition of caste as a sui generis category in international
law," published in the Hungarian Journal of Legal Studies in 2024.
ABHINAV MEHROTRA
amehrotra@jgu.edu.in
Assistant Professor and Assistant Director at Jindal Global Law School, O.P. Jindal Global
University (India), and holds an LL.M. in International Human Rights Law from the University of
Leeds, United Kingdom. His research interests include Public International Law and Human Rights
Law. He has been published in various reputed journals internationally, including the Australian
Yearbook of International Law and Asian Journal of International Law, and has attended various
international conferences. His recent publications include a co-authored article titled "India’s
Approach towards Adjudication before the International Court of Justice and International
Criminal Court: in Search of Uniformity," published in JANUS.NET, e-journal of International
Relations, run by Observatory for External Relations, University of Lisbon, Portugal in 2024.
ANURADHA UPADHYAY
anuradhaupadhyay28@yahoo.com
PhD Candidate, Manav Rachna University (India).
Visiting Faculty, Amity Law School, Noida, Amity University, Uttar Pradesh, India
Anuradha Upadhyay is a PhD candidate presently enrolled at Manav Rachna University, India,
researching issues of regulation of competition in digital markets. She is also a visiting faculty at
Amity Law School, Noida, affiliated with Amity University, Uttar Pradesh, India. She has
completed her undergraduate degree in Political Science from Delhi University, followed by LL.B.
from Chaudhary Charan Singh University Meerut. She has completed her LL.M. from Amity
University, Uttar Pradesh, with a specialisation in International Trade Law. She has completed
various diploma courses in international law from the India Society of International Law. Her
research interests include competition law, constitutional law, and public international law.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
498
ADDRESSING RUSSIAN AGGRESSION AGAINST UKRAINE: THE
IMPERATIVE FOR A SPECIAL TRIBUNAL UNDER INTERNATIONAL AND
UKRAINIAN LEGAL FRAMEWORK
AMIT UPADHYAY
ABHINAV MEHROTRA
ANURADHA UPADHYAY
1. Introduction
Historically, the principle of individual criminal responsibility was shaped under
international law in the aftermath of the Second World War by the Nuremberg
International Military Tribunal. For the municipal systems governed by the member
states, the incentive to support the principle of international criminal responsibility was
to end the impunity for the most severe crimes of common concern committed on the
territories of the member states.
In this context, the ongoing Russia-Ukraine war and the illegal invasion on the pretext of
genocide have resulted in a violation of the UN Charter system on the use of force under
Article 2 (4) of the UN Charter (Schrijver, 2015). However, different justifications are
being cited that are either against or supporting the Russian invasion. On the one hand,
the alleged violation by the US and NATO of the Russia-NATO Foundation Act, signed in
1997 that limits the NATO expansion to Germany, is being cited as the reason that has
triggered the current invasion by Russia. (Reis and Grzybowski, 2023:1-23) On the other
hand, the countries in the West believe that it is a Russian attempt to establish a new
sphere of influence in their neighbour (Kuzio, 2018:462-473).
The history of this invasion has its roots between the period of 2014 and 2021, wherein
the Donbas region had seen a large number of conflicts resulting from the Russian
occupation of Crimea since 2014. At the same time, Russian involvement in instigating
an armed conflict between the Ukrainian government and the separatist groups was
found (Bassiouni, 2008). The Russian government was accused of supplying weapons
and arms in the Donbas region to escalate the tensions between the Ukrainian
government and the separatist groups.
Amidst all these developments and the severe violations of human rights of the Ukrainian
citizens more than two years after the 2022 invasion, this article argues the need to
establish a special tribunal (McDougall, 2003: 203-230) to adjudicate Russia's
government's violations of crimes of common concern in nature of war crimes, crimes
against humanity, genocide, and crimes of aggression and hold the individuals
responsible for the same (Furuya, Takemura and Ozaki, 2023).
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
499
2. International Organisations’ responses to the Russian aggression
After Russia invaded Ukraine in February, the international community imposed a
plethora of economic sanctions against the Russian Federation as the UNSC resolution
condemning Russia's aggression against Ukraine was vetoed. Consequently, the states
then took recourse to the Uniting for Peace Resolution, which was adopted on 2 March
2022 that condemned Russia's attack on Ukraine (UNGA, 2022). It called on all parties
to respect international humanitarian and human rights law provisions.
However, since the Uniting for Peace Resolution is a non-binding resolution, 39 member
states of the UNGA who are party to the Rome Statute approached the ICC Chief
Prosecutor, led the Prosecutor to open an investigation on 2 March 2022 into the Russian-
Ukraine war (ICC, 2022). These referrals mandate the Prosecutor to investigate and
collect evidence without Pre-Trial Chamber approval. Simultaneously, resolution 49/1
was adopted on 4 March 2022, where the Human Rights Council established an
Independent International Commission of Inquiry. This Commission of Inquiry was
empowered to build upon the work of the UN Human Rights Monitoring Mission in Ukraine
(HRMMU) and the UN High Commissioner for Human Rights (UN, 2022).
3. ICJ proceedings in Russia Ukraine crisis
Amidst these actions taken by the international community, Ukraine, on 26 February
2022, filed an application instituting proceedings against the Russian Federation relating
to the interpretation, application, and fulfillment of the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide before the ICJ. The Court ordered
the Russian Federation to suspend the military operations that began on February 24,
2022, in Ukraine (ICJ, 2022).
Recently, the ICJ concluded that it has jurisdiction, based on Article IX of the Genocide
Convention, to adjudge and declare that there is no credible evidence that Ukraine is
responsible for committing genocide in violation of the Genocide Convention in the
Donbas region, and the so-called independence of the Donbas region by the Russian
Federation violates Articles I and IV of the Genocide Convention. Further, the ICJ held
that the use of force cannot justify the obligation to punish and prevent genocide from a
merit perspective. Instead, the responsibility to punish and prevent genocide should be
governed by international law. However, the issue of justice remains for the victims
whose rights have been and are being violated in the ongoing conflict.
4. Russian aggression and war crimes and the International Criminal
Court
Despite the several efforts made to ensure accountability for the crimes being committed
by the Russian Federation on Ukrainian territory, the war continues to take place. From
an international criminal law perspective, the question that arises is whether the
International Criminal Court can play a role in recognising responsibility for the crimes
committed during the invasion of Ukraine that have already resulted in the deaths of
thousands of civilians, including children (UNSC, 2022).
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
500
Amongst the crimes that the International Criminal Court has jurisdiction over, the crime
of aggression is the quintessential crime against peace, and it is the basis upon which
the International Criminal Court was established under the Rome Statute (Kreß And
Barriga, 2016).
However, to enforce the jurisdiction of the ICC vis a vis the crimes of
aggression, a large number of procedural hurdles exist that will be reflected upon in this
article. However, it is clear that Russian bombings hit residential areas far from military
targets, public buildings, and hospitals (Polgase, Mezzofiore and Doherty, 2022).
Consequently, the prerequisites for initiating a criminal inquiry into war crimes and
crimes against humanity are present.
Coming back to the referral to the prosecutor of the International Criminal Court, the
Prosecutor launched an investigation into suspected war crimes and crimes against
humanity perpetrated on Ukrainian soil. However, Russia's denial of the Court's
legitimacy raises an essential question of jurisdiction, and the practicality of the Court
looking into the issue comes to light, which also puts at stake the credibility of the ICC
(Vasiliev, 2022).
It must be clarified that Ukraine and Russia are not State parties to the Rome Statute.
As a result, the Office of the Prosecutor ('OTP') has relied on two ad hoc statements made
by the Ukrainian authorities in 2014 and 2015 under Article 12(3) of the Statute
(Szpak,2023: 1012-1026). The ICC has to keep in mind that the current invasion of
Ukraine continues to take place amidst a divided geopolitical background between the
group of various countries and coalitions, including the EU, NATO members and their
allies backing Ukraine, on the one hand, and Russia backed, in one way or another, by
Belarus, Eritrea, Iran, Nicaragua, North Korea, and Syria, on the other hand.
The core issue that the ICC will have to look into is that Ukraine is defending its
sovereignty and territorial integrity against a powerful permanent member of the Security
Council (Pinzauti and Pizzuti, 2022 : 1061-1083) that bestows it with additional
responsibility to take on Russia's illegal invasion of Ukraine (Sloss and Dickinson, 2022:
798-809).
A. An inquiry involving a multitude of participants
Given the sensitivity of the issue at hand and the magnitude of violations that have
occurred in the ongoing Russia-Ukraine War, a thorough investigation is the need of the
hour. The quality of the investigation will depend upon the support that the ICC receives
in collecting the evidence for which the role of the Prosecutor assumes significance. In
addition to the work of the ICC, the Commission of Inquiry established by the United
Nations Human Rights Council would always have an essential role in substantiating the
findings of the ICC as the obstacles that exist need effective international and national
collaboration, especially with the asylum authorities.
B. The Interpretation of the Facts
Since 2014, military actions have been part of a constant conflict between Russia and
Ukraine (Mamlyuk, 2015: 479, 490-512). Several instances during the ongoing war, such
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
501
as the mass abduction of Ukrainian citizens and the participation of foreign combatants,
provide sufficient evidence of crimes against humanity being committed. To investigate
the same, the Office of the Prosecutor must establish that the crimes were part of a
widespread or systematic onslaught against the civilian population in furtherance of or
under a state policy. The Prosecutor needs to overcome the challenge of defining the
invasion of the Russian State and whether to categorise this assault as part of a more
extensive program aimed at the former Soviet regions or confine the same to Ukraine.
The ongoing investigation in the Georgia case and the recent step to issue arrest warrants
suggest that the Office of the Prosecutor may choose the first alternative (ICC, 2022).
The next phase is identifying the persons the Prosecutor wants to charge for crimes
committed in Ukraine. Under Article 28 of the Rome Statute, Russian President Vladimir
Putin, Defence Minister Sergei Shuygou, and Chief of Staff Valeri Gerasimov have been
implicated, and an arrest warrant for their arrest has been issued. Nonetheless, an
important issue remains: What Role will the Crime Of Aggression play in the response of
International Criminal Justice? Recent developments seem to provide a classic example
for qualifying this fourth international crime established in the Rome Statute. As this
article will illustrate, the prosecution of the crime of aggression is far more complicated
than is often believed, especially in the ongoing Ukrainian crisis, as a lack of political
motive exists on the part of Russia. There exist several obstacles in prosecuting the crime
of aggression. First, such prosecutions are politically sensitive and ensuring a fair trial
poses challenges. Further, claims of sovereignty and non-intervention may be put forth.
A referral to article 8 bis is required to define this offence and paragraphs 15 bis and 15
ter for its execution. The offence of Aggression consists of five Components. Three include
the person's actions, while two involve the state's actions. An act of aggression must
have been planned, prepared, initiated, or committed by an individual who was
'controlling the political and military activities of the state committing the violence'
(Schieke, 2001: 409-430), which in this case is evident. Article 8 bis-2 defines it as a
state's use of military force against another State's sovereignty, territorial integrity, or
political independence or incompatible with the United Nations Charter.
The ICC exercises its authority over the crime of aggression in three ways. Either a State
Party, The Prosecutor, Or The United Nations Security Council may refer a situation to
the International Criminal Court. However, non-state Parties are barred from the Court's
jurisdiction (Babaian, 2018), regardless of whether they are the 'aggressor' or 'victim' as
far as the crime of aggression is concerned.
Under the Rome Statute, the crime of aggression does not permit the prosecution of an
accused whose nationality is attached to a State that has not ratified the Rome Statute,
even if the aggression occurs on the territory of a State Party. Russia is not a party to
the Statute. Despite the fact that the situation in Ukraine is unquestionably an act of
aggression, it is evident that the prosecutor will have to focus more on the war crimes.
Additionally, the traditional concerns regarding the legitimacy and selectivity of such an
exceptional jurisdiction (why Russia's aggression in Ukraine and not the United States in
Iraq? Why Ukraine's crimes and not those in Syria, Yemen, or Palestine? ), other practical
and legal considerations continue to cause issues. One may thus question the use of a
court that is incapable of conducting any action (investigation or arrest) on Russian
Territory or Occupied Ukraine.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
502
5. Hybrid or special Criminal Court for the Russian crime of aggression
The ongoing conflict between Russia and Ukraine has prompted calls from various
segments of society that call for the establishment of an Extraordinary International
Court to address the crime of aggression committed by the Russian Federation either
through an international treaty or by the United Nations General Assembly resolution.
However, the legal basis of such a tribunal remains unclear.
Such a tribunal will aim to prosecute and judge the principal perpetrators of the crime of
aggression and all those who contributed to its execution, including those who provided
the funds, legal advice, and operational support to carry it out. According to them, the
only option to overcome the hostile regime of Article 15 bis of the Rome Statute regarding
the crime of aggression and the logistical, political, and legal problems of national
prosecutions under universal jurisdiction would be to establish such a jurisdiction,
especially to counter the functional immunities of Russian rulers and diplomats before
foreign jurisdictions which is a must be given the violation of the non-use of force
provisions under the UN Charter.
In this light, it needs to be reiterated again and again that Russia's invasion of Ukraine
could be construed as a criminal act of aggression as it meets the two criteria, first being
the use of force violating Art. 2(4) of the UN Charter and the second, that gives rise to
Individual Criminal Liability which strengths liability which strengths the demand for such
a Special Tribunal Or Hybrid Tribunal to be established, despite Russia's argument of self-
defence as required by Art. 51 of the UN Charter (Heller, 2022). This argument fails to
hold ground as Ukraine did not launch an armed attack against Russia prior to the
invasion, nor was such an armed attack imminent for self-defence. Russia also tried to
justify its actions under the supposed collective self-defence to defend the rights of the
people of the Donetsk People's Republic (DPR) and the Lugansk People's Republic (LPR);
however, Russia's argument is baseless as the first and most important aspect of self-
defence, whether individual or collective, is that only states have a right to self-defence.
Neither the DPR nor LPR satisfies the legal requirements for statehood. Consequently,
Russia's premature recognition of the Ukrainian territories of DPR and LPR as states was
a violation of international law, as noted by the General Assembly in its Resolution
ES11/1.13 (Malksoo
, 2023 : 601-604).
A. Hybrid Tribunal
In this context, it needs to be investigated how to hold those responsible for atrocities in
Ukraine guilty of their Crimes, especially Crimes Of Aggression. One of the first options
may be to establish a hybrid tribunal. The Extraordinary Chambers in the Courts of
Cambodia Offers a potential model for addressing Russian aggression against Ukraine as
it was based in Cambodia's judicial system, prosecuted international crimes, and had
international judges and prosecutors (Dittrich, 2016).
In the context of Russian aggression against Ukraine, the possible option may be for
Ukraine to enter into an agreement with the Council of Europe to create a High Ukrainian
Chamber for Aggression (HUCA), a specialised Chamber in the Ukrainian judicial system
with jurisdiction over aggression. Ukraine should be primarily responsible for such a
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
503
tribunal, and the Chamber would consist of Ukrainian and non-Ukrainian judges to ensure
impartiality and fairness.
However, constitutional challenges and issues of personal immunity pose significant
obstacles to the creation and functioning of such a tribunal. To illustrate, under Art. 125
of the Ukrainian Constitution provides that the "establishment of extraordinary and
special courts shall not be permitted". Nonetheless, in the past, the High Anti-Corruption
Court of Ukraine (HACC) was established as a specialised court in Ukraine's judicial
system in 2019 that possessed the power to seize the property of particular individuals
and legal entities associated with the military aggression against Ukraine by Russia
without offering any compensation. Another issue that the HUCA may face than the one
highlighted above is that of personal immunity because it seems improbable that a hybrid
tribunal like a HUCA would set aside personal immunity, given that the fact that the
statute upon which it is based would not be binding on individuals like Lavrov and Putin
for their criminal actions as held by the ICJ in the Arrest Warrant case (Orakhelashvili,
2002) that "certain holders of high-ranking office in a State, such as the Head of State,
Head of Government, and Minister for Foreign Affairs, enjoy immunities from the
jurisdiction in other States, both civil and criminal".
'
The reason is that the authorisation
has not been given by the Security Council, as Russia has vetoed the same.
B. Special Tribunal
Given the limitations of a hybrid tribunal, creating a Special Tribunal dedicated to
investigating and prosecuting the Crime Of Aggression in Ukraine may be a more viable
option. This tribunal, potentially named "A Special Tribunal for the Punishment of the
Crime of Aggression Against Ukraine", would address the legal and political challenges of
prosecuting High-Ranking Russian Officials.
Amidst the discussion on the feasibility of a Hybrid or Special Tribunal, the need for
change in the approach to International Criminal Prosecution is felt, certainly in relation
to the specific situation in Ukraine, but also generally to ensure a future in which the
international community is governed equitably under the rule of Law. While ensuring that
the ongoing war comes to an end and Ukraine's sovereignty and territorial integrity are
restored, it is of equal significance that accountability for the criminal acts that have been
committed in Ukraine is ensured, especially the crime of aggression along with war
crimes, crimes against humanity and genocide. At the same time, it would be ideal for
the existing international criminal institution to prove its value here by bridging the
accountability gap through the ICC system by establishing a special tribunal as an
effective, accountable, and inclusive institution that ensures peace and security.
Furthermore, by setting an example of such a special tribunal that prosecutes individuals
coming from Russia that has misused its position under the garb of falsely claiming self-
defence under the UN Charter, an example would be set to simplify and ensure an
accountable and responsive international criminal justice system, In the past, Russia
violated the sovereignty of Georgia in 2008 and then in 2014 and 2022, the territorial
integrity of Ukraine continues to be violated. In 2008, Russian troops supported the pro-
Russian militias in South Ossetia and Abkhazia, within the territory of Georgia, which,
despite being autonomous, are under the de facto control of Russia (Evans, 2009). Such
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
504
defiant behaviour of Russia undermines the international law framework, which has
become one of the foremost concerns of the international community.
The UN as an organisation is dealing with the unique challenge posed by Russia's defiant
behaviour, including the acts of claiming exclusive rights and privileges, the need to claim
a higher position in the international social hierarchy due to diminished reputation and
importance relative to other nations; and a belief that all these actions are necessary for
national prestige, security and wealth. This has been coupled with the inaction by the
UNSC as Russia abused its veto power as a permanent member by restricting the UNSC
from taking any steps to prevent the humanitarian crisis that has unfolded in Ukraine.
All this reflects that the international community is facing an accountability crisis, and
the need to prosecute the individuals responsible for the heinous crimes is of paramount
significance.
Situations like Ukraine clearly illustrate the dangers of a system dependent upon the
willingness of a few powerful nations to take the necessary steps to ensure the peace
and security of the international community.
6. International justice in the Post-Putin world
Faced with circumstances as complicated as the conflict in Ukraine, it is imperative to
have substantial international justice first enacted domestically. Although it is evident
that international jurisdictions, including the ICC, may occasionally be disappointing, it is
also undeniable that this is primarily because these jurisdictions are founded without the
resources necessary for their effective functioning.
The pursuit of international justice in the context of the Ukraine conflict requires
substantial resources and state cooperation. The International Criminal Court (ICC) and
other international jurisdictions must be adequately funded and supported to investigate
and prosecute crimes effectively. The article emphasises the importance of robust
international cooperation, particularly in facing challenges posed by Russia's non-
cooperation.
In addition, as the ICC lacks its own police force, it will be crucial to acquire the complete
participation of States at all levels of the proceedings. Without such state cooperation,
we can anticipate that it will be conflictual or non-existent in the case of Russia. In
addition to financial resources, acquiring the complete cooperation of States, particularly
conflict-affected States, NGOs, and civil society, is crucial to establishing individual
criminal responsibility to ensure non-recurrence of such events and maintain and restore
international peace and security by establishing effective, accountable, and inclusive
institution at both international and national levels.
7. Ukrainian Crimina Law and criminal procedure code
Coming to the municipal laws prevailing in Ukraine, even if the investigation takes place
at the international level and those guilty of committing the crimes are prosecuted and
punished, the question of restoring the rights of those who have suffered in Ukraine
remains to be answered, i.e., how to remedy the mass violations at the domestic level?
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
505
This question assumes greater significance as the victim's right to compensation is of
paramount importance (Martin and Fowle, 2020: 1015-1037). In Ukraine, the legal
regulation of the victim's right to compensation is not in line with constitutional
guarantees. Thus, there is a need for the state to ensure that the victim's compensation
is provided and respected.
One possible approach for Ukraine is to look into the experience of other countries that
have recovered from a conflict of such a nature faced by Ukraine. This mechanism can
be implemented by creating a State Victim Assistance Fund and similar institutions to the
one already existing at the ICC that can act as an essential benchmark for Ukraine. The
composition of the ICC vis-a-vis the victim assumes significance as it places victims at
the core of justice dispensation. Under the Rome Statute, the role of victims has been
elaborately explained by not only giving them the right to participate in the proceedings
but also putting in place a Victims and Witness Unit, Trust Fund for Victims, and Office
of Public Counsel for Victims (McGonigle, 2012: 375-408).
Further, the need for Ukraine to establish such institutions can also be seen under the
current Criminal Procedure Code (CPC) of Ukraine, where the right of the victim to repair
(compensation) of harm caused by a criminal offence is recognised as an inalienable right
of a citizen where the victim is entitled to compensation of moral and physical damage
in accordance with the provisions of Chapter 9 of the CPC.
However, at the domestic level, Ukraine faces challenges in restoring the rights of victims
of aggression and ensuring adequate compensation, which necessitates the need for
institutions similar to those within the ICC, such as a State Victim Assistance Fund, to
address the rights of victims under Ukrainian law.
From an international law perspective, the leading international legal acts in this area
from which Ukraine could incorporate certain provisions are the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, which sets out specific
provisions on access to justice, fair treatment, restitution, social assistance, etc. and, the
European Convention on the Compensation of Victims of Violent Crimes which has been
ratified by more than 25 states of the world. Still, Ukraine has not yet ratified the
Convention (CoE, 1983: 1021-1024).
8. Universal jurisdiction over war crimes during Russian aggression
Since the road to the International Criminal Court seems impenetrable for the crime of
aggression and riddled with traps for other crimes, there is a need to explore the potential
for national courts to exercise universal jurisdiction over war crimes committed during
the Russian aggression against Ukraine as well as their legal framework for such
prosecutions and the challenges posed by issues of immunity and state sovereignty.
Under territorial jurisdiction, Ukrainian courts can prosecute suspected international
crimes committed on Ukrainian soil, as discussed above. Under personal jurisdiction, the
same rules apply to the courts of the States of the nationality of the suspects on both
sides (active personal jurisdiction) or of the nationality of the victims (passive personal
jurisdiction), provided that the suspected perpetrators can be arrested and tried in their
presence and that they are not protected by immunity from criminal jurisdiction based
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
506
on their responsibilities. As the ICJ has noted, regardless of the nature of the alleged
crimes, the immunities established by customary international law are intended to
protect the senior officials of a State "against any act of authority on the part of another
State that would impede the exercise of [their] functions". In addition, domestic courts
recognising universal jurisdiction might trial anybody for crimes committed beyond the
forum state's territory and against victims who do not have the forum state's nationality.
However, the requirements for its application vary from country to country and often
involve not only the defendant's presence on the national territory of the competent
courts but also the absence of immunity.
These parameters may be made more flexible concerning international offences. On the
one hand, certain national courts might trial individuals not on national territory but
accused of committing a crime overseas. In that case, some national courts might put
aside their immunity ratione materiae for actions committed during the execution of their
powers after they have ended their functions. They are distinct from their functions, such
as war crimes and crimes against humanity, since they do not fall within the typical
operations of a state government.
All of these issues need a rethinking of the insufficient framework of the crime of
aggression to make it more readily justiciable after the convictions for crimes against
peace by the International Military Tribunals at Nuremberg and Tokyo in 1946 and 1948
that had laid the foundation of establishing individual criminal liability. Globally, the
struggle against impunity necessitates continued consideration of the efficacy and validity
of international criminal justice, which has a global mission concerning imprescriptible
crimes and relies heavily on improving justice standards internally.
9. Conclusion
Since the beginning of the conflict, Ukraine has used substantial military, diplomatic, and
political methods in response to the Russian army's invasion of its territory. Alongside
these manoeuvres, it used international law mechanisms to further seek aid against
Russia on the world stage to halt its military actions. Ukraine is fighting a legal war, or
lawfare, against its Russian neighbour in addition to a military war. This approach is
crucial to the International Criminal Court and the International Court of Justice. Ukraine
may depend on the backing of many nations, especially Western nations, who, for the
first time in the history of the International Criminal Court, massively backed a
'complaint' against another state and showed commitment to provide more resources to
the Office of the Prosecutor. These activities also position the Office of the Prosecutor of
the ICC as a central figure in the dispute. This unexpected interest in the Court and its
investigations is encouraging. It signals a new chapter in the history of the ICC, allowing
it to engage with investigations more openly and transparently on the ground alongside
other actors. It strengthens its validity and influence on the world stage. It must also be
viewed with care since it indicates the potential for the Court to be used for political
purposes.
The legitimacy of the Office of the Prosecutor and the ICC relies on the fact of punishing
the perpetrators of the crimes committed against Ukraine by Russia. To achieve the said
aim, other UN organs, like the ICJ and UNGA, need to play their part along with the ICC.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
507
International recognition would provide further legitimacy to the ongoing investigations
and prosecutions carried out by Ukraine. Prosecuting such war crimes may be a long-
term process requiring sustained efforts and resources. Thus, the establishment of a
special or hybrid tribunal, alongside robust support for the ICC and other international
mechanisms, offers a potential pathway to accountability for the crime of aggression and
other international crimes committed in Ukraine.
Despite all the obstacles, the ICC investigation in Ukraine holds significant promise as
powerful aggressor states such as Russia cannot escape justice, and victims of such war
crimes will be vindicated in the future, however distant that may be.
References
Books
Babaian S (2018). The International Criminal Court- An International World Court?’:
Jurisdiction and Cooperation Mechanisms of the Rome Statute and its Practical
Implementation (Springer)
Bassiouni M (2008). International Criminal Law: International Enforcement (Brill Nijhoff).
Kreß CAnd Barriga S (2016). The Crime of Aggression: A Commentary (Cambridge
University Press) .
Book chapters
Dittrich V.E (2016).The Legacy of the ECCC’ In: Meisenberg, S., Stegmiller, I. (eds) The
Extraordinary Chambers in the Courts of Cambodia. International Criminal Justice Series,
vol 6. T.M.C. Asser Press.
Schrijver N (2015).The Ban on the Use of Force in the UN Charter, in Marc Weller
(ed.), The Oxford Handbook of the Use of Force in International
Law https://doi.org/10.1093/law/9780199673049.003.0022
Journal and newspaper articles
CoE (1983), European Convention on the Compensation of Victims of Violent Crimes'
International Legal Materials 22 (5) 1021-1024.
dos Reis F and Grzybowski J (2023), Moving ‘red lines’: The Russian-Ukrainian war and
the pragmatic (mis-) use of international law Global Constitutionalism 1-23.
Evans G (2009), Russia, Georgia and the Responsibility to Protect AMSTERDAM L.F. 1 25
Furuya S, Takemura H and Ozaki K (2023), Global Compact of the Ukraine Conflict:
Perspectives from International Law.
Heller K J (2022), Options for Prosecuting Russian Aggression Against Ukraine: A Critical
Analysis Journal of Genocide Research DOI: 10.1080/14623528.2022.2095094
Kuzio T (2018), Russia–Ukraine Crisis: The Blame Game, Geopolitics and National
Identity Europe-Asia Studies 70(3) 462-473, DOI: 10.1080/09668136.2018.1443643.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
508
Malksoo L. (2023), Resolution ES- 11/4 Territorial Integrity of Ukraine: Defending the
Principles of the Charter of the United Nations (U.N.G.A)’ International Legal Materials
62(4) 601-604.
Mamlyuk B.N. (2015) ‘The Ukraine Crisis, Cold War II, and International Law' GERMAN
L. J. 16 479, 490-512 .
Martin K.D. and Fowle M.Z.(2020), Restitution without Restoration? Exploring the Gap
between the Perception and Implementation of Restitution’ Sociological Perspectives
63(6) 1015–1037. https://doi.org/10.1177/0731121420970599
McDougall C (2003), The Imperative of Prosecuting Crimes of Aggression Committed
against Ukraine Journal of Conflict and Security Law 28(2) 203-
230, https://doi.org/10.1093/jcsl/krad004
McGonigle B (2012), Victim-Oriented Measures at International Criminal Institutions:
Participation and its Pitfalls’ International Criminal Law Review, 12(3) 375-
408. https://doi.org/10.1163/157181212X648851
Muller-SchiekeIK(2001), Defining the Crime of Aggression Under the Statute of the
International Criminal Court’ Leiden Journal of International Law 14(2) 409-430.
Orakhelashvili A (2002), Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo V. Belgium)The American Journal of International Law 96(3) 677–684.
Pinzauti G and Pizzuti A (2022), Prosecuting Aggression against Ukraine as an “Other
Inhumane Act” before the ICC Journal of International Criminal Justice, 20(5) 1061-
1083, https://doi.org/10.1093/jicj/mqac058
Sloss D and Dickinsion L (2022), The Russia-Ukraine War and the Seeds of a New Liberal
Plurilateral Order’ American Journal of International Law 116(4)798-809.
Szpak A(2023), ‘Ukraine: remedial secession and Russian aggression’ Journal of
Contemporary European Studies 31(3) 1012-
1026, DOI: 10.1080/14782804.2022.2106956.
UNSC Meeting Coverage (2022), War in Ukraine Presenting 'Child Protection, Child Rights
Crisis', Senior United Nations Official Tells Security Council' 9032
nd
Meeting, SC/14889.
Vasiliev S (2022), ‘Watershed Moment or Same Old? Ukraine and the Future of
International Criminal Justice Journal of International Criminal Justice 20(4) 893-
909, https://doi.org/10.1093/jicj/mqac044
Online publications
ICC Press Release (2022). Statement of ICC Prosecutor, Karim A.A. Khan QC, on the
Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an
Investigation’ https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-
qc-situation-ukraine-receipt-referrals-39-states
ICC Press Release(2022). ICC Prosecutor, Karim A.A. Khan QC, announces application
for arrest warrants in the Situation in Georgia https://www.icc-cpi.int/news/icc-
prosecutor-karim-aa-khan-qc-announces-application-arrest-warrants-situation-georgia.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL16, Nº. 1
May-October 2025, pp. 497-509
Addressing Russian Aggression Against Ukraine: The Imperative for a Special Tribunal Under
International and Ukrainian Legal Framework
Amit Upadhyay, Abhinav Mehrotra, Anuradha Upadhyay
509
International Court of Justice (2022). Allegations of Genocide under the Convention on
the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation),
Provisional Measures https://www.icj-cij.org/public/files/case-related/182/182-
20220316-ORD-01-00-EN.pdf
Polgase K, Mezzofiore G and Doherty L (2022).Anatomy of the Mariupol Hospital Attac'
CNN https://edition.cnn.com/interactive/2022/03/europe/mariupol-maternity-hospital-
attack/index.html.
UN Mandated Investigations(2022). Independent International Commission of Inquiry on
Ukraine. UNHRC https://www.ohchr.org/en/hr-bodies/hrc/iicihr-ukraine/index
United Nations General Assembly (2022) Res. ES-11/1, 2 March 2022.
How to cite this note
Upadhyay, Amit, Mehrotra, Abhinav & Upadhyay, Anuradha (2025). Uso de Geotecnologias (Sig)
para Mapeamento de Áreas Inundáveis em Zonas Urbanas: Estudo de Caso Bairro de Bunhiça.
Janus.net, e-journal of international relations. VOL. 16, Nº. 1, May-October 2025, pp. 497-509.
DOI https://doi.org/10.26619/1647-7251.16.1.02.
