Australia is one of two non-European states in the new Ukraine aggression tribunal

On 15 May 2026, at the 135th session of the Committee of Ministers of the Council of Europe in Chisinau, 36 states and the European Union adopted the resolution creating the Enlarged Partial Agreement that will run the Special Tribunal for the Crime of Aggression against Ukraine. Australia and Costa Rica were the only two participating states from outside Europe. Some accounts describe the signatories as 34 Council of Europe members plus Australia and Costa Rica, which is the same set counted differently, while the Moscow Times put the total at 37 by counting the European Union itself.

The tribunal exists to fill a specific hole. The International Criminal Court can pursue war crimes and crimes against humanity committed on Ukrainian territory, but it cannot exercise jurisdiction over the crime of aggression itself in this situation, because Russia is not a party to the Rome Statute. Aggression is a leadership crime: it reaches the people who decide to start a war, not the people who fight it. Ukraine ratified the Rome Statute and the Kampala amendments on 25 October 2024. The foundational agreement between Ukraine and the Council of Europe was signed in Strasbourg on 25 June 2025, one day after the Committee of Ministers adopted the draft Statute, and Ukraine's parliament ratified it on 15 July 2025.

Machinery has followed. On 24 January 2026 the European Commission and the Council of Europe announced an advance team, funded with a first instalment of 10 million euros through the Commission's Service for Foreign Policy Instruments, with a mandate of up to 24 months or until the Enlarged Partial Agreement's own funding mechanism takes over. The team has worked from The Hague and Strasbourg since February 2026. The court is to seat 15 judges, elected by secret ballot on an absolute majority for nine year terms, and a prosecutor appointed for a single seven year term. The seat is The Hague.

The compromise at the centre of the design is immunity. Under the Statute, personal immunity survives for a sitting head of state, head of government or foreign minister, the troika, so proceedings against any of them are suspended until they leave office or their state waives the protection. Writing on 24 March 2026, Noelle Quenivet of Bristol Law School read this as doctrinal conformity with customary international law, and noted that Article 23(4) removes functional immunity, the protection attaching to official acts, for the crime of aggression. Christian Wenaweser and Sina Alavi, who helped originate the project as Liechtenstein's representatives at the United Nations, wrote on 7 February 2026 that the compromise was unsatisfying but necessary to hold a coalition together. The practical consequence is plain. While Vladimir Putin and Sergei Lavrov hold their offices, this court cannot try them.

The second contested choice is trial in absentia, permitted by Article 28 subject to notification, legal representation and an unqualified right to a retrial if a convicted person is later taken into custody. Amnesty International and Ukrainian civil society groups said on 14 May 2025 that this was a regressive step away from earlier international tribunals and would damage perceptions of fairness. A Just Security analysis published on 15 May 2026 argued the opposite, that the conditions conform with international human rights law and are more generous to the accused than many domestic systems. Euronews reported that budget planning favours information technology over detention infrastructure, precisely because most trials are expected to run without the accused present.

Not everyone signed. Bulgaria, Hungary, Malta and Slovakia stayed out among European Union members, and the Moscow Times listed Turkey, Serbia, Georgia and Azerbaijan as further absentees. The selectivity objection has been pressed repeatedly, including by states outside Europe asking why no comparable tribunal followed the invasion of Iraq in 2003. Wenaweser and Alavi treat that as a reciprocity concern rather than opposition to accountability as such.

Australia is not a Council of Europe member. It joins as a participant in the Enlarged Partial Agreement rather than as a member of the organisation, which makes Australia and Costa Rica the only evidence so far that the project reaches beyond Europe.

What is not yet known is whether the machine produces anything. States were to meet in June 2026 to constitute the management committee, elect judges, appoint a prosecutor and approve a budget, and first indictments were expected to take six months or more after that. There is no public confirmation that judges have been elected. There is no settled framework for cooperation with the International Criminal Court, no financing arrangement beyond the advance team's 24 month horizon, and no indication that any person this tribunal might one day charge will ever stand in its courtroom.