Forum 1a: Account­ability for war crimes: putting the inter­na­tional rules-based order to the test

How can those respon­sible for war crimes and crimes under inter­na­tional law be held account­able? Christoph Heusgen, Tania Freiin von Uslar-Gleichen, Anton Korynevych and Frank Hoffmeister discussed questions of inter­na­tional criminal law.

As Anton Korynevych explained, the Ukrainian govern­ment is endeav­ouring to set up a special tribunal for the crime of aggres­sion — the start of the war of aggres­sion — via the United Nations in order to avoid two problems –  the trial in the absence of the accused and the lifting of immunities.

“A special tribunal for the crime of aggres­sion can be set up by a vote in the General Assembly” (Christoph Heusgen)

Christoph Heusgen, Chair of the Munich Security Confer­ence and former German Ambas­sador to the UN, argued in favour of reforming the UN Security Council and strength­ening the General Assembly. A special tribunal for the crime of aggres­sion could be initiated by a vote in the General Assembly, said Heusgen. So far, the G7 states had not committed them­selves to this path. Germany should emphat­i­cally support the explo­ration of this possi­bility and not allow the law of the jungle to prevail.

The estab­lish­ment of a special tribunal is consid­ered necessary in view of the Russian war of aggres­sion against Ukraine, as the Inter­na­tional Criminal Court (ICC) is currently unable to initiate criminal proceed­ings for the crime of aggres­sion due to a legal loophole in the Rome Statute of the ICC. When asked how this loophole in inter­na­tional criminal law could be closed, Frank Hoffmeister, Director of General Affairs at the EEAS, began by clar­i­fying that, from a legal perspec­tive, an act of aggres­sion by Russia against innocent civilians in Ukraine was clearly a crime under inter­na­tional law.

State respon­si­bility and indi­vidual criminal liability

This has two conse­quences. Firstly, state respon­si­bility, i.e. Russia as a state must take respon­si­bility for the offence under inter­na­tional law and make amends for it. Secondly, there is indi­vidual criminal liability of those in the Russian lead­er­ship who are respon­sible for the war of aggres­sion, in partic­ular President Putin, Prime Minister Mishustin, Defence Minister Shoigu, and senior military officers.

With regard to the question of state respon­si­bility, Ukraine has brought an important case before the Inter­na­tional Court of Justice (ICJ): Ukraine has sued Russia for genocide before the ICJ. The EU had shown over­whelming soli­darity here, with 26 member states inter­vening in The Hague to support Ukraine’s legal opinion.

In order to establish the criminal liability of indi­vid­uals, one of the four following offences contained in the Rome Statute must be fulfilled: 1. crime of aggres­sion (war of aggres­sion); 2. war crime; 3. crime against humanity; 4. genocide.

The Inter­na­tional Criminal Court may only inves­ti­gate crimes of aggres­sion if the aggressor state is a party to the ICC (Russia has not yet acceded to the Rome Statute) or if the UN Security Council refers the situation to the ICC. As Russia has a permanent seat on the Security Council, it will block a referral to the ICC. This means that the Rome Statute prohibits aggres­sive war, but the ICC’s hands are currently tied, according to Hoffmeister.

One possible way forward would be for Ukraine to turn to the UN General Assembly. This in turn would authorise the Secretary-General to conclude a treaty with Ukraine in order to establish a new UN-based court (special tribunal). Unfor­tu­nately, unlike the Security Council, the General Assembly cannot take coercive measures against Russia, but can only make recommendations.

On the other hand, if Ukraine asks inter­na­tional partners for help, a so-called hybrid model such as the Kosovo model could be applied. A third option would be for the UN General Assembly to posi­tively assess coop­er­a­tion between Ukraine and inter­na­tional partners in the form of a so-called “coalition of the willing” and encourage all members to adopt a joint reso­lu­tion on this. Around 40 states are currently trying to get this idea off the ground.

Tania Freiin von Uslar-Gleichen, Commis­sioner for General and Special Inter­na­tional Law at the Federal Foreign Office, commented on Germany’s role in this complex process. Germany is working inten­sively on closing this crim­i­nal­i­sa­tion gap. “We cannot present a special tribunal as victor’s justice (...). We need legit­i­macy, espe­cially when it comes to breaking through immunity”.  Germany is pursuing a two-pronged approach. Firstly, together with Ukraine, to create an effective and legit­i­mate instru­ment for the pros­e­cu­tion of the Russian political and military lead­er­ship under inter­na­tional criminal law, which should become a precedent. Secondly, to reform the Rome Statute and authorise the Inter­na­tional Criminal Court to condemn the war of aggres­sion, even if the aggressor state is not a member of the Inter­na­tional Criminal Court.


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