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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