The Special Tribunal on Aggression in Ukraine and Implications for Palestine
Dr Brian Brivati, Director, Britain Palestine Project
On June 25, 2025, the Council of Europe adopted the Statute for a Special Tribunal to prosecute the crime of aggression against Ukraine, specifically targeting Russia’s leadership for the unlawful invasion. This tribunal is a significant step forward for international accountability, filling a critical gap in international criminal law and asserting a key principle: no nation’s leaders are above the law. As the Council of Europe’s Secretary General emphasized during the signing, "international law must apply to all — with no exceptions, and no double standards."
Although the likelihood of President Putin, the primary perpetrator, being held accountable remains virtually non-existent, the tribunal provides a crucial mechanism for accountability for victims in Ukraine. Prosecutions of key figures lower in the command chain, while unlikely to result in direct punishment or reparations, offer the victims recognition and judgment. Reparations could potentially be pursued through the release of sanctioned Russian assets to Ukraine, though beyond that, victims are left with only the hope for judgement without punishment.
This tribunal raises difficult questions about consistency in international justice. If the international community can unite to punish aggression in Ukraine, why should it not address aggression elsewhere, particularly in the ongoing Israel-Palestine conflict? Consistency in international law is essential for its legitimacy, during a period in which the role of international is under unprecedented attack. There have been several attempts to establish Tribunals on Palestine, but these are symbolic rather than official and they have influence but carry no weight in legal terms.
Legal Framework and Jurisdictional Gaps
The Special Tribunal for Ukraine addresses a jurisdictional gap that the International Criminal Court (ICC) cannot fill. The ICC can prosecute genocide, war crimes, and crimes against humanity committed in Ukraine (since Ukraine accepted ICC jurisdiction), but it cannot prosecute the crime of aggression due to jurisdictional limits set by the Kampala Amendments. These limits prevent the ICC from pursuing aggression committed by nationals of a non-State party like Russia, unless authorised by a UN Security Council referral, which is effectively blocked by Russia’s veto.
Russia signed the Rome Statute in 2000 but never ratified it, officially withdrawing its signature in 2016. As a result, the ICC lacks jurisdiction over crimes committed by Russian nationals or on Russian territory, unless a UN Security Council referral is made. The new tribunal fills this gap, ensuring that the "supreme international crime," as aggression was termed at Nuremberg, is addressed. The tribunal’s focus on those "who bear the greatest responsibility for the crime of aggression" ensures accountability for top leaders, a critical reinforcement of the UN Charter’s core rule against unlawful war.
The tribunal is also a creative response to institutional challenges, being established through an "Enlarged Partial Agreement" within the Council of Europe framework. This approach allows both member and non-member states, as well as the EU, to manage the tribunal. The involvement of 46 foreign ministers in endorsing the Statute gives the tribunal international legitimacy, even in the absence of a UN Security Council referral. This model offers a blueprint for future tribunals in situations where the Security Council is paralyzed, and it can be seen as a regional mechanism that complements the ICC’s efforts to address war crimes, crimes against humanity, and reparations.
Israel’s Position and ICC Jurisdiction
Israel, not a member of the ICC, has consistently rejected the Court’s jurisdiction. While Israel signed the Rome Statute in 2000, it withdrew its signature in 2002, citing concerns that the ICC could be used to politically target Israel, particularly regarding its settlement policies, which it viewed as criminal under the Rome Statute’s provisions on the transfer of civilian populations into occupied territories.
In 2015, the State of Palestine acceded to the Rome Statute, granting the ICC jurisdiction over crimes committed in Palestinian territories. This has led to investigations into actions by both Israeli and Palestinian actors, with the ICC issuing arrest warrants in 2024 for Israeli leaders Benjamin Netanyahu and Yoav Gallant for alleged war crimes and crimes against humanity during the Gaza conflict. Israel contests the ICC’s jurisdiction over its nationals, complicating the legal landscape.
The situation raises questions of consistency. If international law is truly universal, mechanisms to prosecute aggression and grave crimes should be considered wherever such crimes occur, including in Israel-Palestine.
The Gaza Blockade and Aggression
Israel’s blockade of Gaza, which has lasted over 15 years, has been widely regarded as a violation of international law. The UN and the International Committee of the Red Cross (ICRC) have both described the blockade as unlawful collective punishment, a violation of Article 33 of the Fourth Geneva Convention, which prohibits such measures against a civilian population under occupation. This blockade constitutes an act of aggression, as defined in international law, since it involves the use of force by one state against another, violating territorial integrity.
As the international community recognises Russia’s aggression in Ukraine, a similar legal framework could be applied to Israel’s actions. The crime of aggression, as outlined in Article 8 bis of the Rome Statute and the Kampala Amendments, involves the planning, initiation, or execution of an act of aggression—defined as the use of armed force against another state’s sovereignty, territorial integrity, or political independence. Unlawful uses of force by Israel against Palestinian territory should be scrutinized under the same legal framework.
The Question of Self-Defence and Aggression
Israel asserts that its use of force in Gaza is self-defense against Hamas. While self-defense is a valid legal justification under the UN Charter, the scale of Israel’s military response—thousands of airstrikes and a full siege of Gaza—raises questions about whether it remained within the bounds of necessary defense or crossed into punitive aggression. The principle of proportionality, which requires that military force be necessary and proportional to the threat, is crucial in determining whether Israel’s actions constituted aggression. The continuing scale of force, especially as civilian casualties mounted, could be seen as manifestly excessive, violating international law.
The Kampala standard for the crime of aggression requires that the use of force be clearly outside the realm of lawful force. Even if Israel initially had a self-defense justification, the continuation of military actions after the immediate threat was neutralized could be seen as a disproportionate use of force. Furthermore, Israel’s ongoing blockade and settlement policies in Gaza, which have no legitimate self-defense justification, suggest a broader pattern of aggression.
Proportionality, Necessity, and IHL in Gaza
In addition to the jus ad bellum question of aggression, Israel’s conduct in Gaza must be judged under international humanitarian law (IHL). The principles of distinction, proportionality, and military necessity are core to IHL. Israel’s military response to Hamas after the October 2023 assault was marked by intense bombardment in a densely populated area, resulting in significant civilian casualties. The proportionality principle prohibits attacks that cause civilian harm excessive to the anticipated military advantage.
Reports from Gaza indicate a pattern of strikes where the civilian toll was enormous, raising concerns about the proportionality of Israel’s response. For example, a strike on Jabalia refugee camp in October 2023 resulted in over 120 civilian deaths, including women and children. If the harm caused was excessive in relation to the military advantage, this could constitute a violation of IHL.
Furthermore, the principle of necessity in IHL prohibits the use of force that is not required to achieve military objectives. The level of destruction in Gaza, which involved the obliteration of entire neighborhoods and the displacement of over a million people, suggests that Israel’s actions exceeded what military necessity could justify.
The Need for a Tribunal on Palestine
A tribunal focused on Palestine could address not only specific military operations, like the 2023 Gaza war, but also the broader context of territorial acquisition by force and the ongoing military occupation. While the 1967 war may have been partly a self-defence action, Israel’s continued control over Palestinian territories, including the West Bank and Gaza, is a violation of international law. The annexation of East Jerusalem and settlement activities in the West Bank have been condemned by the international community, with the UN and the International Court of Justice (ICJ) consistently reaffirming the illegality of such actions.
The international community has treated Israeli territorial expansion as a political issue, not a legal one, despite the clear legal parallels to Russia’s actions in Ukraine. The case for a tribunal on aggression in Palestine is strong. If the international community can establish mechanisms to prosecute aggression in Ukraine, similar efforts should be made for Israel’s actions against Palestinians. The principles of international law, including the prohibition on territorial acquisition by force and the prohibition of aggression, must apply universally. A tribunal for Palestine could serve as an essential mechanism for accountability, ensuring that Israel’s actions are scrutinized under the same legal standards applied to other states. The establishment of such a tribunal would affirm the universality of international law and reinforce the commitment to a just and lasting peace in the Middle East.