B Explanatory memorandum
by Mr Eerik-Niiles Kross, rapporteur
1 Introduction
1. Following the adoption by the
Assembly of
Resolution 2556 (2024) “Legal and human rights aspects of the Russian Federation’s
aggression against Ukraine” on 26 June 2024, based on a report by Mr Davor Ivo Stier
(Croatia, EPP/CD),
Note the Assembly decided
to seize the Committee on Legal Affairs and Human Rights for a new
report on the same subject.
Note The committee
appointed me as rapporteur on 2 October 2024.
2. Since the finalisation of Mr Stier’s report, the Assembly
has adopted several resolutions and recommendations on the Russian
war of aggression against Ukraine, including
Resolution 2573 (2024) “Missing persons, prisoners of war and civilians in
captivity as a result of the war of aggression of the Russian Federation
against Ukraine”, based on a report prepared for the Committee on
Migration, Refugees and Displaced Persons (rapporteur: Ms Maria
Mezentseva-Fedorenko, Ukraine, EPP/CD);
Resolution 2588 (2025) “European commitment to a just and lasting peace in
Ukraine”, based on an report prepared for the Committee on Political
Affairs and Democracy (rapporteur: Ms Miapetra Kumpula-Natri, Finland,
SOC); and more recently,
Resolution 2598 (2025) “Russian war of aggression against Ukraine: the need
to ensure accountability and avoid impunity”, based on a report
prepared for the Committee on Legal Affairs and Human Rights (rapporteur: Mr Iulian Bulai,
Romania, ALDE).
3. The Council of Europe as a whole has continued to play its
part in the global and regional response to the Russian Federation’s
war of aggression against Ukraine, particularly with a view to completing
and ensuring a comprehensive system of accountability for all violations
of international law committed in and against Ukraine. The three
main lines of action have concerned: the establishment of a special
tribunal for the crime of aggression against Ukraine within the
framework of the Council of Europe, through the participation of
the Council of Europe in the Core Group of States and organisations
supporting the creation of such a tribunal and the preparation of
draft legal instruments;
Note the establishment of a Claims Commission
for Ukraine as a second component of a comprehensive compensation
mechanism (the first component of which is the Register of Damage
for Ukraine operational since April 2024), through the participation
in preparatory meetings and formal negotiations on an international
treaty; and the work on the situation of the children of Ukraine,
in particular those who have been unlawfully deported to the Russian
Federation or forcibly transferred to the Ukrainian territories
temporarily occupied by the Russian Federation in violation of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Article II) and international humanitarian law.
4. The Committee on Legal Affairs and Human Rights had the opportunity
to hear about developments concerning both the special tribunal
and the compensation mechanism at its meeting of 10 September 2024
in Paris, with the participation of Mr Jörg Polakiewicz, Director
of Legal Advice and Public International Law of the Council of Europe,
and Mr Markiyan Kliuchkovskyi, Executive Director of the Register
of Damage. We also heard from Ms Jessica H. Kim, Special Prosecutor
for the Crime of Aggression seconded from the United States to the
International Centre for the Prosecution of the Crime of Aggression
against Ukraine based in The Hague. During the January 2025 part-session,
the committee held a joint hearing with other committees on the situation
of Ukrainian prisoners of war, journalists and other civilians held
in captivity by the Russian Federation, with the participation of
Mr Maksym Butkevych, human rights defender, and officer of the Ukrainian Armed
Forces, ex-prisoner of war and journalist; Ms Leniie Umerova, recently
exchanged Crimean Tatar and civilian hostage (Ukrainian citizen);
Mr Yulian Pylypei, Ukrainian marine, Mariupol defender, 2.5 years
in Russian captivity; and Ms Nataliia Yashchuk, Senior War Consequences
Officer, Center for Civil Liberties, Kyiv.
5. I carried out a fact-finding visit to Kyiv, on 2-3 April 2025.
I had the opportunity to meet with the Ukrainian authorities (President
and judges of the Supreme Court; Deputy Head of the Presidential
Office Ms Iryna Mudra; officials from the Ministry of Foreign Affairs,
including Ambassador Anton Korynevych, the Ministry of Justice,
the Security Service of Ukraine, the Co-ordination Headquarters
for the Treatment of Prisoner of War and the Office of the Prosecutor
General), staff of the Council of Europe office and the Register of
Damage office in Kyiv, as well as with civil society actors and
organisations working on issues related to accountability and war
veterans (Truth Hounds, ZMINA, Center for Civil Liberties, Crimean
Human Rights Group, Pryncyp, Ukrainian Veterans’ Fund, Veteran’s
Hub).
Note I would like to thank all those I
met who provided me with extremely valuable information for the
preparation of my final report.
6. Russia continues its military attacks against Ukraine, including
on civilian infrastructure and residential buildings, resulting
in many civilian casualties, including children, in cities such
as Kharkhiv, Kryvyi Rih,
Note Sumy,
Note Odessa and Kyiv.
Note These attacks are blatant violations
of international humanitarian law (IHL) and add to the long list
of war crimes committed by Russian forces in Ukraine since the start
of the full-scale aggression in February 2022. Some, such as those
in Kryvyi Rih on 6 April 2025 and Sumy on 13 April 2025 (Palm Sunday)
were even admitted and justified by Vladimir Putin himself,
Note demonstrating cynical disrespect
for the most basic rules of international humanitarian law. On 20 April 2025,
President Zelenskyy proposed a renewable 30-day ceasefire on long-range
drone and missile strikes on civilian infrastructure, which has
not yet been accepted by Russia.
Note
7. In this report I will focus on the different components of
a comprehensive system of accountability for the Russian Federation’s
aggression against Ukraine and its legal and human rights consequences,
with a view to making new proposals to member States, the Council
of Europe as a whole and different international partners. I will
examine the progress made on the special tribunal for the crime
of aggression, the compensation mechanism, the state of play of
existing and ongoing accountability mechanisms (ICC, European Court
of Human Rights, UN bodies, investigations and proceedings in Ukraine
and other member States). In this context, I will also address the
possible consequences of the new US administration’s negotiations
with Russia (initiated in March 2025), including the impact of the
growing disengagement of the US from accountability projects and
narratives. Finally, I will also elaborate on the state of Ukrainian
prisoners of war (PoW) and civilians unlawfully detained by the
Russian Federation and how this should be part of any credible peace process.
2 The crime of aggression and the need
to establish a special tribunal for the crime of aggression against
Ukraine
8. In
Resolution 2556 (2024), the Assembly considered that the establishment of a
special tribunal through an agreement between the Council of Europe
and Ukraine, supported by an enlarged partial agreement, would be
the “best feasible option, in terms of legal basis and political
legitimacy”. “It would clearly fall within the mandate of the Council
of Europe, as reflected in its Statute and in accordance with the
priorities set out in the Reykjavik Summit”. It also reiterated
that “the special tribunal should therefore have features that would
make it as international as possible and encourage cross-regional
support, taking into account the need to maximise its international
legitimacy and to minimise any possible legal challenges, in particular
with regard to the possible reliance of key suspects on personal
immunities”. It considered that the special tribunal should have specific
features, with respect to jurisdiction (including
ratione temporis, covering the aggression
from its beginning in February 2014), definition of the crime of
aggression (in line with the ICC Statute), the personal immunities
issue, the fair trial rights,
in absentia proceedings,
co-operation agreements and complementarity with the ICC. When it
comes to personal immunities, while stating that they should not
apply before the tribunal, the resolution proposed that the statute
should leave the matter to the interpretation of the judges of the
future tribunal, having regard to the practice of other international
criminal tribunals and the precedents in international law. In its
earlier resolutions (
Resolution
2436 (2022) and
Resolution
2482 (2023)), the Assembly had emphasised that the special tribunal
should “not be limited by State immunity or the immunity of heads
of State and government and other State officials” since the crime
of aggression is by definition a leadership crime, and that “personal
immunities would not apply to incumbent State officials, in line
with the practice of other international criminal tribunals”. The
compromise wording on the immunities issue in
Resolution 2556 (2024) was partially a result of the pressure by certain delegations
at the Core Group negotiating the special tribunal statute. The
Americans and other G7 nations did not support bringing the “troika”
(Head of State, Head of Government and Minister of Foreign Affairs)
under the special tribunal mandate at all. Ukraine, at that time,
agreed with the compromise wording (leaving the matter to the interpretation
of the judges).
9. On 19-21 March 2025, the Core Group meeting in Strasbourg
finalised the draft legal documents for the establishment of the
special tribunal, after two years of consultations.
Note The
agreed texts include a draft bilateral agreement between Ukraine
and the Council of Europe, the draft statute of the special tribunal
and a draft enlarged partial agreement on the management of the special
tribunal. The meeting was opened by the President of the Assembly
who explained the role that the Assembly had played from the beginning
as the first international body to have called for the establishment
of a special tribunal (in April 2022). The three documents have
now been submitted for political endorsement by the Ukrainian leadership
and the States participating in the Core Group. According to the
information I received during my fact-finding visit, it is expected
that a meeting will take place in Lviv on 9 May with representatives
of all Core Group participants (Ministers of Foreign Affairs and
their legal advisers), and in that meeting the Government of Ukraine
will formally proclaim that it requests the establishment of the
special tribunal on the basis of the draft legal instruments. This
would then open the door for the Committee of Ministers to acknowledge
or support Ukraine’s request (possibly during the ministerial session
in Luxembourg on 13-14 May) and prepare the final decisions (authorising
the Secretary General to conclude the agreement on behalf of the
Council of Europe and establishing of the Enlarged Partial Agreement).
Note The
Assembly already anticipated these steps in its
Resolution 2598 (2025) and
Recommendation 2294 (2025), where it called on the Committee of Ministers to adopt
these decisions as soon as a political agreement was reached.
10. I understand that the some of the Assembly’s demands on the
features of the special tribunal will be met, including with regard
to functional immunities, the definition of the crime of aggression,
trials
in absentia, fair trial
rights and co-operation with the ICC. I also understand that there
will be no temporal limitation to its jurisdiction, meaning that
the special tribunal will be able to prosecute the crime of aggression
that began on 20 February 2014 and not only from 24 February 2022
(see
Resolution 2294 (2025) and
Resolution 2556 (2024)). Its jurisdiction will not be limited to Russian suspects
so it may cover as appropriate nationals from other States having
participated in the war of aggression against Ukraine. This may
include the so-called Belarusian leadership and possibly the military
and political leadership of the Democratic People’s Republic of Korea
(“North Korea”), in line with what the Assembly has expressed in
its recent resolutions. Under the United Nations General Assembly
(UNGA) Resolution 3314 of 1974 as well as Article 8bis of the ICC
Statute, the action of placing the territory of a State at the disposal
of another State, to be used by that other State for perpetrating
an act of aggression against a third State, also qualifies as an
act of aggression in itself. The UNGA has indeed deplored the involvement
of Belarus in the unlawful use of force against Ukraine.
Note It
is also clear that the sending or involvement of North Korean troops
(an estimated 14 000 soldiers) fighting alongside Russian forces
against Ukraine (within the Kursk region) may also fall within the
scope of an act of aggression.
NoteNote In April 2025 the North
Korean dictator publicly admitted that his troops participate in
the Russian war of aggression against Ukraine “to annihilate the
Ukrainian neo-Nazi occupiers”.
Note
11. One of the most difficult issues that had to be settled during
the Core Group negotiations was related to the personal immunities
of the troika, which need to be distinguished from functional immunities.
Note I fully agree with previous Assembly
resolutions and reports (by Mr Damien Cottier (Switzerland, ALDE)
and Mr Davor Ivo Stier (Croatia, EPP/CD)) that personal immunities
should not apply before an international or internationalised tribunal.
Note It is regrettable that a compromise
had to be reached between conflicting political and legal views on
the subject and that some political views prevailed. The compromise
reached seems to be that the prosecutor of the special tribunal
will be able to collect evidence, investigate the crimes and finalise
and submit to the special tribunal an indictment against the troika
members concerned, but that the special tribunal will not take any
procedural action nor issue any arrest warrant as long as those
persons remain in office.
Note This outcome is not in harmony
with the Rome Statute of the ICC, Article 27 of which states: “1. This
Statute shall apply equally to all persons without any distinction
based on official capacity... 2. Immunities or special procedural
rules which may attach to the official capacity of a person, whether
under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person”. The International
Law Commission (ILC) and UN resolutions uphold the principle that
official capacity is not a defence in prosecution for international
crimes – including aggression. This principle was reaffirmed in
the
Arrest Warrant Case (ICJ, 2002):
the said immunity applies in foreign domestic courts while in office,
but not necessarily before international criminal tribunals. This
outcome falls short of the international standard of responsibility
for the crime of aggression (then crime against peace) set by the
Nuremberg Tribunal, whose Statute (Article 7) said: “The official
position of defendants, whether as Heads of State or responsible
officials in Government Departments, shall not be considered as
freeing them from responsibility…”. This outcome obviously does
not meet the expectations of the Ukrainian authorities and society.
However, this compromise enables the future tribunal to effectively
investigate and punish the majority of those who bear the responsibility
for the crime of aggression and investigate the crimes of the Russian
top leadership that bears the greatest responsibility.
12. It is regrettable that the US has withdrawn from the Core
Group since March 2025, after having participated in the consultations
on the special tribunal from the beginning under the Biden Administration.
The US authorities have also withdrawn from the International Centre
for the Prosecution of the Crime of Aggression against Ukraine based
in The Hague, to which they had contributed financially and seconded prosecutors.
Note This
position must be read in light of the Trump Administration’s shift
in US foreign policy, particularly in its relations with Ukraine
and Russia, including its position on the legal and political characterisation
of the aggression.
Note
13. In line with what has been expressed in
Resolution 2598 (2025), I propose that the Assembly calls once again on member
States, Core Group participants and the Committee of Ministers to
move towards the establishment of the special tribunal as soon as
possible, by adopting the relevant political decisions and final legal
instruments. This should be a short process as all the relevant
legal texts are ready and awaiting political endorsement. The Assembly
should also recommend that the special tribunal, once established,
be provided with all the necessary tools and resources to become
operational, through the swift appointment of highly qualified and
independent judges and staff, and that co-operation agreements be
signed with all participating States and the ICC. In addition, observer
States and other non-European States wishing to uphold the international
legal order should be invited to join, in order to ensure the widest
possible cross-regional membership.
14. In the context of the ongoing and future talks between the
US, Ukraine and Russia about a possible ceasefire or peace negotiations,
it is also important to recall that it would not be possible to
offer any international amnesty for the crime of aggression, even
if some might consider this desirable in order to achieve peace.
In order to avoid any doubt, the statute of the special tribunal
should include a provision on the inadmissibility of amnesties granted
to persons subject to its jurisdiction. The prohibition of aggression
is a peremptory norm of general international law, recognised as
jus cogens. All States have a duty
to co-operate in order to bring any serious breach of such a norm
to an end,
Note and
this should logically entail an obligation to avoid impunity and
to guarantee non-repetition. The Assembly should reiterate that
any peace process or agreement must not undermine the commitment
taken by the Council of Europe to hold the Russian Federation and
those responsible for its crimes fully accountable. Peace must be
just and consistent with the principles of international law and
accountability should not be used as leverage for peace. This position
is shared by the Council of Europe Commissioner for Human Rights,
who has insisted that human rights and a victim-centred approach
should be an integral part of any peace talks on Ukraine.
Note
15. Similarly, the illegal annexation of the occupied Ukrainian
territories should never be recognised by any State or be part of
a peace agreement. Under international law, the prohibition of territorial
acquisition resulting from the threat or use of force is a corollary
of the prohibition of the threat or use of force.
Note Since the annexation
is in itself a serious breach of this principle, States have an
obligation not to recognise the unlawful situation created by such
a breach, not to assist and aid in its maintenance, and to co-operate
to bring it to an end.
Note This would at least
require opposing any agreement which would try to endorse or legalise
any territorial changes resulting from the aggression. In this context,
it is worrying to note that US representatives and President Trump
are suggesting that certain territorial changes (particularly regarding
Crimea) could be accepted
de jure as
part of a peace deal.
Note The Assembly should therefore unequivocally
and firmly reiterate that the annexation of any Ukrainian territories
by Russia, which is a fundamental part of the crime of aggression,
was and will remain blatantly illegal in the eyes of the international
community.
3 The
need to complete the work for a comprehensive international compensation
mechanism
16. The Russian Federation must
bear the legal consequences of all of its internationally wrongful
acts committed in and against Ukraine, including by making reparation
for the damage caused by such acts to all natural and legal persons
concerned, as well as the State of Ukraine, including its regional
and local authorities, state-owned or controlled entities. I refer
to previous Assembly resolutions on this subject, notably its
Resolution 2556 (2024) “Legal and human rights aspects of the Russian Federation’s
aggression against Ukraine” and
Resolution 2539 (2024) “Support for the reconstruction of Ukraine”, as well
as the United Nations General Assembly Resolution A/RES/ES-11/5
of 14 November 2022 “Furtherance of remedy and reparation for aggression
against Ukraine”, which recognises the need for the establishment
of an international mechanism for reparation.
17. The Register of Damage for Ukraine was established at the
Reykjavik Summit in May 2023, as the first component of a comprehensive
compensation mechanism for the Russian Federation’s aggression and
all the resulting and multiple violations of international law.
It was established through an enlarged partial agreement within
the framework of the Council of Europe. It became operational in
April 2024. Over the past year, it has opened the claims submission
process for several categories of damage, including involuntary
internal displacement, death of an immediate family member, missing
immediate family member, serious personal injury, sexual violence,
torture or inhuman or degrading treatment or punishment, deprivation
of liberty, forced labour or service, and damage or destruction
of residential immovable property. So far, it has received over 20 000
claims and the Register’s Board is advancing with the issuing of
its decisions on the recording of the claims, with an estimated
six to eight million claims expected.
Note In its
Resolution 2598 (2025), the Assembly reiterated its call for the Register of
Damage (Participants and Associate Members) to expand its temporal scope
to include claims dating back to 2014, rather than limiting it to
claims relating to damage caused on or after 24 February 2022, as
currently provided for in its statute. The Assembly should repeat
this call.
18. On 24-26 March 2025, formal negotiations on an international
treaty to establish a claims commission for Ukraine were launched
in the Hague, with the participation of more than 50 States from
different continents, the Council of Europe and the European Union.
Note This was an important step towards
the establishment of the second component of a comprehensive compensation
mechanism, as repeatedly called for by the Assembly in its previous
resolutions and as foreseen in the Statute of the Register of Damage.
This body will be mandated to examine claims for compensation of
damage now being submitted to the Register of Damage for Ukraine and
determine any amount of compensation due in each case. Although
there are two options on the table as regards the model of the treaty
establishing the commission, the Assembly (
Resolution 2598 (2025)) has already expressed its support for an open Council
of Europe convention, as this would ensure the necessary cross-regional
participation while benefiting from the leadership and expertise
of the Organisation. It would also be more coherent with the fact
that the Register of Damage, which is intended to be an integral
part of the future compensation mechanism, was established and operates
under the auspices of the Council of Europe. It is essential that
the future claims commission has a temporal scope covering all damage
caused since the start of the aggression in 2014, and not just limited
to the full-scale aggression from 2022. Also, it is vital that the negotiations
on the treaty to establish the claims commission be completed in
the coming months, the treaty adopted by the end of this year and
the ratifications process conducted swiftly so that the commission
may start working within the year 2026.
19. As to the issue of how to ensure the enforcement of the compensation
awards that will be determined by the future claims commission,
I refer to the well-established position of the Assembly expressed
in its
Resolution 2556 (2024),
Resolution
2539 (2024) and
Resolution
2598 (2025). The Assembly considers that the repurposing of the
currently frozen Russian State assets (approximately US$300 billion)
would constitute lawful counter-measures against Russia under international
law, as they would be intended to induce the aggressor to cease
its unlawful behaviour and to comply with its obligations resulting
from that conduct, including the obligation to make reparations
for the damage caused.
Note This would be a justified
collective and proportionate response to the ongoing aggression,
which violates
erga omnes obligations
and
jus cogens norms. The
Assembly has therefore urged member States and any other States
holding these assets to enact legislation allowing for such measures,
with a view to transferring the assets to a future international compensation
fund.
Note This compensation fund should be
the third and fundamental component of the compensation mechanism
for Ukraine and I hope that the future convention on the claims
commission will set a clear framework and timeline for the creation
of the fund in the near future.
20. In the meantime, pending the creation of an international
compensation fund, States should immediately transfer the frozen
assets to an international trust fund, which would manage them for
the ultimate benefit of the victims of the aggression and for the
reconstruction of Ukraine.
Note It is important to take urgent action
now as there is a risk that EU and international sanctions freezing
the assets will not be renewed due to the blockade by some EU member
States or in the light of any peace talks. If the assets were to
be returned to the Russian Federation, they could be used to fund
its ongoing war of aggression and perpetuate further destruction
and loss of life while discrediting any European efforts to meaningfully
support Ukraine.
4 Progress
on the various international and national accountability systems
for crimes and gross violations of human rights committed by the
Russian Federation
4.1 The
International Criminal Court
21. Since the adoption of
Resolution 2556 (2024) in June 2024, the ICC has not issued new arrest warrants in
the context of its investigation into the situation in Ukraine.
The same six arrest warrants remain in force against: Vladimir Putin
and Maria Lvova-Belova, Commissioner for Children’s Rights in the
Office of the President of the Russian Federation, for the war crime
of unlawful deportation and unlawful transfer of Ukrainian children;
Sergei Ivanovich Kobylash and Viktor Nikolayevich Sokolov for the
war crime of directing attacks at civilian objects, the war crime
of causing excessive incidental harm to civilians or damage to civilian objects,
and the crime against humanity of inhumane acts (in relation to
the campaign of strikes); and, finally, Sergei Kuzhugetovich Shoigu
and Valery Vasilyevich Gerasimov for the same categories of war
crimes and crimes against humanity. None of these arrest warrants
have been enforced. When Vladimir Putin made his first visit to
an ICC State Party (Mongolia) in September 2024, the State Party
concerned did not comply. On 24 October 2024 the Pre-Trial Chamber II
of the ICC delivered a decision in which it found Mongolia in non-compliance
with its request to arrest Vladimir Putin and with its obligations
under the ICC Statute.
Note The
Pre-Trial Chamber clearly stated that personal immunity of Heads
of States (including third States) is not opposable in proceedings
before the Court and that if a State Party grants this immunity
in the context of a request for arrest and surrender, it would be
acting inconsistently with its international obligations.
22. In addition to the issue of non-co-operation by certain State
Parties, the ICC investigation into the situation in Ukraine may
face additional challenges. The recent sanctions imposed by the
Trump Administration against Karim Khan (and possibly other staff
in the future) in retaliation for the ICC’s decisions on Gaza may create
significant obstacles to the work of the Office of the Prosecutor,
including with regard to its investigation in Ukraine and co-operation
with relevant actors.
Note Member States
that are States Parties to the ICC Statute should condemn these
measures and strengthen their political, legal and material support
for the ICC. The Office of the Prosecutor of the ICC in Kyiv should
be reinforced with more secondments and staff.
23. We should also be very clear that any possible peace process
or outcome should not affect the ongoing proceedings before the
ICC. There is a risk that some States not supporting the ICC may
be tempted to activate Article 16 of the ICC Statute, which allows
the UN Security Council to request deferral of ICC investigations
or prosecutions for one year (renewable), if a resolution to this
effect is adopted under Chapter VII of the UN Charter.
4.2 The
European Court of Human Rights
24. Four interstate cases by Ukraine
against Russia are pending before the Court, all relating to violations committed
occurred until 16 September 2022, when Russia ceased to be a State
Party to the European Convention on Human Rights (ETS No. 5). The
only one in which a judgment on the merits has been delivered is
Ukraine v. Russia (re Crimea), judgment
of 25 June 2024, where the Court found a pattern of multiple violations
of the Convention since February 2014 (including enforced disappearances;
ill-treatment and unlawful detention of Ukrainian soldiers, ethnic
Ukrainians, Crimean Tatars, journalists; impossibility to opt out of
Russian citizenship; suppression of Ukrainian media and of the Ukrainian
language in schools; transfers of prisoners from Crimea to Russia;
intimidation and harassment of religious leaders; expropriations; discrimination
of Crimean Tatars; restriction on freedom of movement between Crimea
and mainland Ukraine; and a retaliatory prosecution and misuse of
criminal law against “Ukrainian political prisoners”). It also clarified that
Russian law could not be regarded as “law” for measures taken in
Crimea and that Russia had unjustifiably extended the application
of its law to Crimea following the so-called “Accession Treaty”
of March 2014, in breach of the Convention and international humanitarian
law. While the issue of just satisfaction remains pending before
the Court, the Committee of Ministers recently adopted its first
decision on the supervision of the execution of this judgment, urging
the Russian Federation to immediately restore the application of
the Ukrainian law in Crimea, to ensure the safe return to the jurisdiction
of Ukraine of all Ukrainian political prisoners as well as illegally
detained Ukrainian soldiers, ethnic Ukrainians, Crimean Tatars and
journalists, and to investigate the grave and serious violations
committed.
Note
25. The case of Ukraine and the Netherlands
v. Russia, which the Court declared admissible and in
which 26 States intervened as third parties, is yet to be decided
on the merits. This case concerns the Russian aggression in eastern
Ukraine from spring 2014, including the shooting down of Malaysia
Airlines flight MH17, and Russia’s military operations on the territory
of Ukraine since 24 February 2022. I hope that the judgment on the
merits will be delivered this year and that it will clarify the
issue of “jurisdiction” in respect of military attacks on the territory
of Ukraine. There are further two more interstate cases pending,
one concerning a naval incident in the Kerch Strait in November 2018
between Russian and Ukrainian armed forces, and the other relating
to targeted assassination operations against opponents of Russia
(not linked to the war).
26. In parallel, the Court is also examining more than 9 000 applications
introduced by individuals who allege that they have been affected
by different aspects of the war, either in Crimea, in eastern Ukraine
or more generally since the full-scale invasion. For example, the
Court has recently communicated to the Russian Federation a case
lodged on behalf of ten missing Ukrainian children who were in childcare
in Crimea in 2014, were forced to become Russian nationals and put
up for adoption.
Note
27. The main challenge in these cases is the lack of co-operation
from the respondent State, the Russian Federation, which has ceased
all communication with the Court since 2022. This means that the
judgments on the merits and on just satisfaction will also be very
difficult to implement, if the situation does not radically change.
The Committee of Ministers should therefore find new ways of approaching
the execution of these cases, including through engaging with other
international accountability mechanisms and partners and by ensuring
that the compensation for damages awarded in the future by the Court
are covered by the international compensation mechanism.
4.3 United
Nations bodies and investigations
28. The United Nations Independent
International Commission of Inquiry on Ukraine, whose mandate was extended
by the United Nations Human Rights Council in April 2025, published
its last report in March 2025. The Commission concluded that enforced
disappearances and torture committed by Russian authorities constitute
crimes against humanity. These were perpetrated as part of a widespread
and systematic attack against the civilian population and pursuant
to a co-ordinated State policy. In areas that came under their control,
Russian authorities detained large numbers of civilians whom they
perceived as a threat to their military objectives in Ukraine or
generally “hostile” to Russian occupation. They transferred many
of them to multiple detention facilities in areas they occupied
in Ukraine or deported them to the Russian Federation, where they subjected
them to additional violations and crimes. Various Russian entities
have systematically failed to communicate the fate or whereabouts
of those detained. In detention facilities in Russian-occupied areas
in Ukraine and in the Russian Federation, Russian authorities have
systematically used torture against most categories of detainees
to extract information, coerce, and intimidate. The most brutal
forms of torture were used during interrogations, which were often
led by the Federal Security Service and the Investigative Committee
of the Russian Federation. Furthermore, the report found that Russian
authorities have systematically used sexual violence as a form of
torture against male detainees and documented additional cases of
war crimes of rape and sexual violence, committed as a form of torture,
against female detainees.
29. The Commission also examined a growing number of incidents
concerning the killing or wounding by Russian armed forces of Ukrainian
soldiers after being captured or while attempting to surrender,
which constitutes a war crime, noting an increase concerning such
incidents since late 2023. The testimonies of former Russian soldiers,
combined with the wide number of incidents documented and their
recurrence, indicate that the Russian forces have acted pursuant
to a policy to kill surrendering or captured soldiers. The Commission’s
recommendations to the Russian Federation included, among others,
the release or return of all Ukrainian deported and detained civilians,
the return of the remains of deceased Ukrainians to their families, and
an end to the killing or wounding of prisoners of war and personnel
hors de combat.
Note
30. The UN Human Rights Committee (HRC) will also have the opportunity
to assess the legal consequences of the Russian aggression from
the perspective of the right to life guaranteed by Article 6 of
the International Covenant on Civil and Political Rights (ICCPR).
Three NGOs have jointly filed a complaint before the HRC alleging
that Russia violated the right to life during its missile strikes
in Vinnytsia in 2022 that made 18 Ukrainian victims.
Note The reasoning is based on General
Comment 36 of the HRC, according to which any killing in pursuit
of an “act of aggression” is “
ipso facto”
an arbitrary deprivation of life under Article 6 of the ICCPR. This
would cover deaths of not only civilians but also military personnel
and regardless of whether the military attack was in conformity
with the international humanitarian law.
4.4 Moscow
Mechanism of the Organization for Security and Co-operation in Europe
31. Since March 2022, the Mechanism
has been activated six times – four times with respect to the violations
of international law committed during the Russian war of aggression
against Ukraine and twice concerning the human rights situation
in the Russian Federation and Belarus. The most recent report issued under
the Moscow Mechanism was presented on 25 April 2024 and relates
to the arbitrary deprivation of liberty of Ukrainian civilians by
the Russian Federation.
Note The mission of experts concluded
that a large number of Ukrainian civilians have been and continue
to be arbitrarily deprived of their liberty by the Russian Federation.
Note These civilians are detained without
any legal grounds and in the absence of virtually any procedural
guarantees.
Note The
mission furthermore concluded that Ukrainian civilians arbitrarily
deprived of their liberty are subjected to various unlawful practices
such as extrajudicial killings, enforced disappearance, torture,
or sexual crimes. All these practices constitute a clear violation
of international human rights law and international humanitarian
law. According to the mission, these practices also highly likely
amount to war crimes, including the crime of
“unlawful
confinement” (Article 8(2)(a)(vii) of the ICC Statute),
and, due to their massive, widespread and systematic nature, to
crimes against humanity, including the crime of
“imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law” (Article 7(1)(e)
of the ICC Statute).
32. The report also recalled that individuals arbitrarily deprived
of liberty are entitled to immediate and unconditional release.
Instances of release of Ukrainian civilians remain sporadic and
isolated, and these small number of releases also include instances
where Russia has accorded the detained Ukrainian civilians the status
of POW in a manner which is not in conformity with international
humanitarian law. In its list of recommendations addressed to Russia,
the mission included the following: to compile, provide and update comprehensive
lists of the names and whereabouts of all Ukrainian civilians detained
by the Russian Federation and to share such lists with the Ukrainian
National Information Bureau and the Central Tracing Agency of the
ICRC; and to ensure immediate, safe and unfettered access for the
ICRC to all facilities where Ukrainian civilians are being detained.
The mission recommended to Ukraine, inter
alia, to continue with its efforts to seek information
about and compile lists of all Ukrainian civilians detained by the
Russian Federation, to urgently increase its multi-agency efforts
to collect and duly verify data; and to make full use of the international
mechanisms which might provide redress to the victims of arbitrary
deprivation of liberty and of the dispute settlement mechanism envisaged
in Article 30 of the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
4.5 Ukrainian
investigations and proceedings
33. According to the statistics
of the Prosecutor General’s Office, as of 28 April 2025, law enforcement agencies
have registered more than 165 634 cases of crimes of aggression
and war crimes, including 85 cases of propaganda of war (Article 436
of the Criminal Code of Ukraine), 114 cases of planning, preparation
or initiation and conduct of an aggressive war (Article 437 of the
Civil Code), 160 620 cases of violation of the laws and customs
of war (Article 438 of the Civil Code) and 4 815 cases of other
crimes. There are 21 928 registered cases of crimes against national
security, including sabotage, collaborative activities and assistance
to the aggressor State. In the main case of aggression against representatives
of the military and political leadership of the Russian Federation
there are 735 suspects, including ministers, deputies, military commanders,
Kremlin propagandists and heads of law enforcement agencies. Most
of the cases are investigated by the Security Service of Ukraine
under the procedural supervision of the Prosecutor General’s Office
prosecutors.
34. The recent re-evaluation and realigning of the US foreign
aid has led to the suspension of some US-funded projects involving
justice and accountability efforts of the Prosecutor General’s Office.
The Assembly should therefore call on member States and other like-minded
States to fill the gap left by the US and increase their assistance
to the Prosecutor General’s Office, including for the most urgent
needs such as equipment and software, military experts and long-term
support for the International Center for the Prosecution of Crimes
of Aggression against Ukraine (from which the US has also withdrawn).
35. The majority of war crimes (Article 438 of the Civil Code)
trials are conducted
in absentia,
due to the fact that most of the defendants are in Russia or in
temporarily occupied territories of Ukraine. As of January 2025, the
War Crimes Statistics indicated that 543 indictments had been submitted
to Ukrainian courts, resulting in 141 verdicts. However, only 19 Russians
were convicted in person, while the rest were convicted
in absentia.
Note Some of the Russians who are in
pre-trial detention or convicted in Ukraine may also be released
in the framework of a prisoner of war exchange through the Coordination
Headquarters for the Treatment of POW. Concerns have been raised
about the conduct of
in absentia trials,
mainly with regard to the procedure for notifying the suspect/accused
and the mechanism for reviewing verdicts
in absentia.
It has been suggested that alternative methods for informing the
accused (other than publishing a summons in the newspaper Uriadovyi
Kurier and on the website of the Prosecutor General’s Office) should
be considered, and that the legal mechanism for reviewing a court
verdict
in absentia should
be improved.
Note Ukraine must ensure
that all
in absentia trials
comply with the guarantees of Article 6 of the European Convention
on Human Rights, not only for the sake of respecting the individual
rights of the accused but also for reasons of reputation, perceived impartiality
and credibility.
Note
36. The Supreme Court of Ukraine has taken important decisions
in cases concerning the crimes committed during the war. On 28 February 2024
the Grand Chamber of the Supreme Court defined the criteria for
the subject of a crime under Article 437 of the Civil Code (crimes
of aggression). It established that acts defined in Article 437
of the Civil Code can only be committed by persons who, by virtue
of their official authority or actual social position, are able
to exercise effective control over or manage political or military
actions and/or significantly influence political, military, economic,
financial, informational and other processes in their own country
or abroad, and/or manage specific areas of political or military
actions. Although Article 437 does not explicitly define who can
be held liable, the Supreme Court accepted that only individuals
in leadership roles can be prosecuted for crimes of aggression under
Ukrainian law, therefore aligning the domestic interpretation with
Article 8 bis of the Rome Statute. As a result of this clarification,
the Supreme Court overturned the convictions of the defendants Ihor Biedulin
and Mykola Vynohradov, both citizens of Ukraine who had joined an
armed group created by Russian military personnel.
37. In the same case, the Supreme Court formulated some conclusions
on the qualification of their actions under Article 438 of the Civil
Code (violation of the laws and customs of war). It observed that
this provision of the Civil Code establishes criminal liability
not for an act of aggression, but for violations of the laws and customs
of war during an ongoing armed conflict, regardless of its legality
or illegality as such. These laws and customs impose respective
obligations, prohibitions and restrictions on all combatants, both
members of regular armies and members of any other armed formations,
regardless of their legal status and the presence or absence of
a certain official position. In this case, the convicts, as part
of an organised criminal group, had kidnapped six people with the
use of weapons, illegally deprived them of their liberty and engaged
them in military work, thus violating the laws and customs of war
established by international law. The Supreme Court therefore upheld
the decisions of lower courts, which convicted them under Article 438
of the Civil Code.
38. During our meeting with the Supreme Court in Kyiv, we also
had the opportunity to discuss recent cases of compensation for
damages caused by the war of aggression. The Court (Civil Cassation)
has determined that, in cases concerning compensation for damages
caused by the armed aggression of the Russian Federation against
Ukraine, the principle of State immunity does not apply to the Russian
Federation. Acts of armed aggression committed by the Russian Federation
do not constitute an exercise of its sovereign rights protected
by State immunity, as no foreign State has the right to carry out
an armed aggression against another country. The Court emphasised
that Russia’s military aggression and occupation of Ukrainian territories constitute
not only a violation of Ukraine’s sovereignty and territorial integrity
but also a breach of fundamental principles and norms of international
law.
4.6 Proceedings
in third States under the principle of universal jurisdiction
39. Investigations in other States
(over 20) have been opened on the basis of the principle of universal jurisdiction
over crimes under international law committed in Ukraine. The first
conviction outside Ukraine for war-related crimes came from a Finnish
court (Helsinki District Court) on 14 March 2025. A Russian national was
sentenced to life imprisonment for committing war crimes in eastern
Ukraine in 2014. He was a senior member of the Russia far-right
mercenary group Rusich and the charges relate to an ambush and firefight
that occurred in the Luhansk region, which killed 22 Ukrainian soldiers
and injured four others. The Prosecutor General‘s Office of Ukraine
hailed this ruling as a “key milestone” and added that Ukrainian
officials had ensured that the court had head from victims and witnesses
in Ukraine.
Note This example should be commended and
followed by other States whose legislation provides for universal
jurisdiction.
40. There are currently seven States (Ukraine, Lithuania, Poland,
Estonia, Latvia, the Slovak Republic and Romania) participating
in the Joint Investigating Team (JIT) set up with the support of
Eurojust. The JIT is aimed at facilitating investigations and prosecutions
in the States concerned on the alleged international crimes committed
in Ukraine (war crimes, crimes against humanity and genocide), through
exchange of information and evidence. The Office of the Prosecutor
of the ICC and Europol also participate in the JIT. As a result
of close co-operation between the JIT parties, the Lithuanian Prosecution
Service has issued notices of suspicion
in
absentia against six suspects, and the Prosecutor General’s
Office of Ukraine has issued a notice of suspicion against another
individual for war crimes. 4 000 witnesses have been interviewed
so far by the national authorities participating in the JIT.
Note
5 Missing
persons, prisoners of war and civilians in captivity under the Russian
Federation’s jurisdiction
41. The Assembly, in
Resolution 2573 (2024) adopted on 2 October 2024, examined the specific issue
of missing persons, prisoners of war and civilians in captivity
as a result of the war of aggression. It noted that (as of 18 September 2024)
a total of 65 956 servicemen and civilians had been registered missing
or captured, although the actual number is thought to be much higher.
3 672 persons had been released from Russian captivity between 24 February 2022
and 17 September 2024, including 168 Ukrainian civilians. The Assembly demanded
“immediate and unimpeded” access for the ICRC to all places of detention.
It also considered that the treatment inflicted on Ukrainian prisoners
of war and civilians amounts to torture and war crimes. Since the Russian
Federation has so far failed to confirm the identity and location
of prisoners of war and civilians detained in connection with the
ongoing war, these unaccounted persons should be considered as “missing persons”.
In this connection, the Assembly recalled that enforced disappearances
do not only violate human rights law and international humanitarian
law but they may also constitute a crime against humanity. The Assembly
therefore urged the Russian Federation to provide the ICRC and relevant
UN mechanisms with access to all places of detention, in line with
international humanitarian law and human rights law. It also invited the
ICRC to consider making an exception to its confidentiality approach
by publicly providing information on the obstacles it is facing
in gaining access to Ukrainian prisoners of war, if this does not
go against the interests of the PoW themselves. This could include,
for instance, the publication of disaggregated data in ICRC reports, making
it possible to know whether the visits listed in the reports concern
Russian or Ukrainian prisoners of war. Finally, the Assembly stated
that it would remain seized of this topic until the last person
was released.
42. This issue has also been addressed by some of the international
mechanisms mentioned in the previous section (OSCE Moscow Mechanism,
European Court of Human Rights in the case of
Ukraine v. Russia (re Crimea)
and the UN Independent International Commission of Inquiry; see
paragraphs 31, 24-27, 28-29 above). Recent international media investigations
coordinated by Forbidden Stories have also shed light on the prison
system established by Russia for Ukrainian civilian prisoners, outside
any legal framework. According to this investigation, there are
at least 26 detention centres where torture and ill-treatment are systematic.
Detention centre number 2 in Taganrog, a Russian town in the Rostov
region, bordered by the Azov Sea, is known to be one of the worst.
According to these investigations, Ukrainian journalist Viktoriia Roshchyna,
who had gone missing in August 2023 in the occupied territories
and whose body was returned to Ukraine in February 2025 with removed
organs and signs of torture, was detained in Taganrog.
Note
43. According to the figures of the Ukrainian Coordination Headquarters
for the Treatment of POW, provided at our fact-finding mission in
April 2025 and later updated, 4 552 persons have been released from
Russian captivity since 24 February 2022, including 173 civilians.
There have been 63 POW/civilians exchanges, and 529 persons (168 PoW
and 361 civilians) have been returned outside exchange procedures.
8 835 bodies of Ukrainians have been repatriated, among which 206 tortured
to death or killed in captivity. 186 locations where Ukrainian civilians
and soldiers are detained, both in Russia and the occupied territories,
have been identified. According to the Ukrainian Ministry of Internal
Affairs (Missing Persons Commissioner), the current number of missing
persons (including both POW and civilians) is estimated at 74 000.
Note
44. The ICRC’s Central Tracing Agency Bureau collects, centralises,
safeguards and transmits information on military personnel and civilians
missing in the context of the armed conflict between the Russian
Federation and Ukraine. As of February 2025, it had documented around
50 000 cases of missing persons, without providing a breakdown of
missing persons by nationality. 90% of those missing were military
personnel. In 2024, the number of missing persons was 23 000, which
means that the number has more than doubled according to the ICRC.
Note The
ICRC has visited more than 3 000 PoW in captivity on both sides.
Note Specific figures for civilian detainee
visits do not seem to be available. The ICRC constantly calls on
the parties to the conflict to fully comply with their obligations
under the international humanitarian law, notably by granting full, regular
and unimpeded access to all those held captive, and by providing
the ICRC with timely information on the fate and whereabouts of
those in their hands, whether alive or dead. It is important to
recall that under the international humanitarian law and the Geneva
Conventions, the ICRC must be granted regular access to all persons
deprived of their liberty.
Note
45. In the context of the ongoing negotiations between the US,
Russia and Ukraine, the issue of the return of POW, unlawfully detained
civilians (as well as of the unlawfully deported or forcibly transferred
Ukrainian children), has been mentioned. In the bilateral talks
between the US and Ukraine on 23-25 March 2025 in Riyadh, the US
expressed its commitment to help achieve the exchange of PoW, the
release of civilian detainees, and the return of forcibly transferred
Ukrainian children.
Note This was however not mentioned in
the published outcomes of the parallel bilateral talks between the
US and Russia.
46. The Assembly should emphasize again that any peace negotiations
must unconditionally address the issue of the release of all PoW
(according to the formula “all for all”), the release of unlawfully
detained civilians, as well as the safe return and reintegration
of Ukrainian children. This follows the position of the Council
of Europe Commissioner for Human Rights in his 10-point framework
to embed human rights in the peace process, which he presented to
the Committee of Ministers on 30 April 2025.
47. It is also important not to forget about accountability when
discussing the release and transfer of PoW and civilian detainees
as part of a peace process. For example, the fate of the Russian
PoW prosecuted for war crimes in Ukraine, and whether they could
be transferred to another jurisdiction or to a competent international
court, should be addressed at some point. Moreover, it is to be
expected that the issue of enforced disappearances and torture of
unlawfully detained civilians by Russian officers, which has been
widely documented by several international mechanisms and qualified
as a crime against humanity, will lead to further proceedings before
the ICC. To date, none of the arrest warrants issued by the ICC
relate to cases of torture or enforced disappearance of civilians.
48. Finally, it is important to recall that rehabilitation, medical,
psychological, social and other support should be provided to all
Ukrainian detainees who are released or returned following unlawful
deprivation of liberty or ill-treatment by the Russian Federation.
In this regard, I note from the information given by the Ukrainian Coordination
Headquarters for the Treatment of PoW that a national model of rehabilitation,
medical, psychological and social assistance exists for both PoW
and civilians returned from captivity. Member States and the Council
of Europe should provide expertise and financial support to such
initiatives, also in collaboration with civil society organisations
present in the field.
6 Unlawfully
deported and forcibly transferred Ukrainian children
49. Within the civilians missing
in the context of the war of aggression, an especially vulnerable
group are the children. The Assembly has consistently condemned
and addressed the deportation and forcible transfer of Ukrainian
children to the Russian Federation, Belarus, and the temporarily
occupied Ukrainian territories. It is condemned in Appendix II on
the children of Ukraine of the Reykjavik Declaration (2023), and
there is an Assembly resolution exclusively on the matter. In its
Resolution 2482 (2023) “Legal and human rights aspects of the Russian Federation’s
aggression against Ukraine” the Assembly established that there
was mounting evidence that these practices could constitute genocide,
since the “forcible transfer of children of one group to another
group for Russification purposes through adoption by Russian families
and/or transfer to Russian-run orphanages or residential facilities
like summer camps” could fall under Article II of the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide. They
can also constitute war crimes and crimes against humanity (
Resolution 2529 (2024) “Situation of the children of Ukraine”). The same conclusion
is drawn in a report by The Yale School of Public Health Humanitarian
Research Lab (Yale HRL) from December 2024, based on the case of
314 identified children taken from Luhansk and Donetsk oblasts to
Russia for coerced adoption and fostering.
Note The report shows that Russian Federation-flagged
military transport planes under the direct control of Vladimir Putin’s
office transported groups of children from Ukraine. It also describes
how Russian Federation-controlled databases obfuscated Ukrainian
children’s identities, including their nationality, in order to
facilitate their placement with Russian families and to conceal
the government’s program of coerced adoption and fostering. These
individual dossiers have been transferred to the ICC Prosecutor’s
Office.
50. The ICC, on 17 March 2023, issued warrants of arrest for Vladimir
Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s
Rights in the Office of the President of the Russian Federation,
for allegedly being responsible for such unlawful deportations,
which the ICC also classifies as a war crime, specifically of unlawful
deportation of population (children) and of unlawful transfer of
population (children) from occupied areas of Ukraine to the Russian
Federation (see paragraph 21 above). On the basis of new evidence, including
the documented evidence presented in the Yale HRL report, the ICC
Prosecutor could broaden the case, add new charges and classify
these practices as crimes against humanity or genocide.
Note From the perspective of
international humanitarian law, the Fourth Geneva Convention (GCIV),
specifically Articles 49 and 147, strictly forbids the forcible
transfer and deportation of civilians from occupied territories,
regardless of the reasons for such actions. This protection explicitly
extends to children as part of the civilian population. Furthermore,
Additional Protocol I to the Geneva Conventions, particularly Articles 78
and 85, includes special measures to safeguard children from the
impacts of armed conflict. They allow for the temporary evacuation
of children only under exceptional circumstances, subject to stringent
conditions and justified solely by serious concerns for the children's
health or safety. The Fourth Geneva Convention (GCIV), in its article 50,
also prohibits an occupying power from modifying the personal status
of children under any condition, including changes to their nationality.
Note
51. According to the Ukrainian website “Children of War”
Note as of May 2025, 19 546 children
had been deported and/or forcibly displaced and only 1 293 had returned.
In this regard, the Institute for the Study of War, in its special
report from March 2025,
Note highlights that the number is likely
to be higher. Yale HRL’s director has placed the number of deported
or transferred children closer to 35 000 as of March 2025.
Note To tackle this, the Council of
Europe has taken various measures. The Assembly, through its
Resolution 2529 (2024), adopted on 25 January 2024, promoted the creation of
a parliamentary network to address the situation of children in
Ukraine. While one of its objectives is to develop an effective
mechanism for the return of children and enhance the return process,
there is currently no unified approach, as each successful case
tends to be a specialised operation. The NGO “Save Ukraine” and
some third countries, such as the State of Qatar, have facilitated
successful returns to Ukrainian-controlled territories, but the
number is still limited. The vast majority of forcibly displaced
and deported children remain in danger. In February 2025, the Secretary
General of the Council of Europe appointed Thordis Kolbrun Reykfjord
Gylfadottir as Special Envoy on the situation of the children of
Ukraine.
NoteNote She conducted her first fact-finding
mission to Ukraine on 19-20 March 2025.
Note On 11 April 2025, she met with the
aforesaid Parliamentary Network as well as with members of the Ukrainian delegation
to the Assembly.
Note Another measure by the Council of
Europe was announced on 4 November 2024, during the international
conference “Deportation of Children during the Armed Conflicts” that
took place in Strasbourg and brought together relevant stakeholders
on the matter. In the event, following the Assembly Recommendation 2253 (2023),
the creation of a new HELP online course on Deportation of Children
during Armed Conflicts was announced. It is part of the Council
of Europe Action Plan for Ukraine “Resilience, Recovery and Reconstruction”
(2023-2026).
Note
52. Yale HRL had its federal funding cut by the US State Department
in February 2025. Following public concern about the potential loss
of data, the State Department granted a short-term extension in
April 2025 to allow the lab to finalise its evidence preservation
and transfer its evidence to Europol or other authorities.
Note
53. It has recently been reported that Russian intelligence services
are recruiting Ukrainian children and teenagers to carry out bombings
and acts of sabotage in Ukraine, turning some into suicide bombers.
This tactic is reminiscent of those used by Daesh. A nationwide
campaign has been launched by the Security Service of Ukraine in
schools, warning children of the dangers of Russian tactics.
Note
7 Conclusions
54. The Assembly has been a driving
force behind the Council of Europe’s accountability agenda for Ukraine.
It was the first international body to launch the idea of a special
tribunal for the crime of aggression committed against Ukraine,
just a few months after the start of the full-scale invasion by
the Russian Federation in 2022. It has also supported the creation
of a Register of Damage for Ukraine as the first component of an international
compensation mechanism, which should include a claims commission
and a compensation fund.
55. In the context of the current talks aimed at achieving a ceasefire
and launching a peace process, and given the extremely volatile
geopolitical landscape, the Assembly should reaffirm more than ever
the need to deliver justice to Ukraine. The aggressor must be called
the aggressor and must not be rewarded for the crimes committed.
It is time to reiterate the most fundamental principles of international
law that cannot be set aside. The crime of aggression committed
against Ukraine, which began in 2014, entails individual criminal responsibility
for the political and military leaders of the Russian Federation
and other States involved in the aggression. Individual perpetrators
of war crimes, crimes against humanity and gross violations of human
rights should also be brought to justice, either before the ICC,
Ukrainian courts or the courts of third States exercising universal
jurisdiction. Peace negotiations must not undermine existing accountability
mechanisms for serious crimes under international law, which cannot
be the subject of amnesties. Nor must they jeopardise the establishment
of a special tribunal for the crime of aggression against Ukraine,
for which the Council of Europe and Ukraine have been working tirelessly
for more than two years. We must be proud of the completion of the draft
legal texts for this special tribunal, but it’s time to reach a
final political agreement to set up the special tribunal and provide
it with all the necessary tools and resources, regardless of the
evolution of any peace negotiations. The Assembly should repeat
its call to all member States and other States to support the special tribunal
and join the enlarged partial agreement.
56. Justice for Ukraine and the victims of the aggression is not
limited to the individual accountability of the perpetrators of
the crimes. It must also include reparation for all the damage caused
to the Ukrainian State and its citizens. The Assembly should fully
support the creation of a Claims Commission for Ukraine within the framework
of the Council of Europe and reiterate its call for the urgent transfer
and repurposing of all the frozen Russian State assets.
57. Peace negotiations must comply with one of the most important
principles of international law, respect for territorial integrity.
The prohibition of territorial acquisition resulting from the use
of force is a corollary of the prohibition of the use of force enshrined
in the Charter of the United Nations. The annexation of territories
as a result of aggression is a violation of jus
cogens norms and as such, States have an obligation not
to recognise it and to co-operate to bring it to an end. Therefore,
any agreement recognising de jure Russia’s
annexation of Crimea or other temporarily occupied territories of
Ukraine by Russia would be manifestly illegal and must not be validated
by the international community.
58. Finally, any peace negotiations should address the release
of PoW and unlawfully detained Ukrainian civilians, as well as the
safe return of children unlawfully deported to the Russian Federation
and Belarus or forcibly transferred to the Ukrainian territories
temporarily occupied by the Russian Federation. The Assembly should
make certain recommendations on this issue to Ukraine, member States
and other stakeholders.
