{"id":59291,"date":"2023-10-30T16:00:11","date_gmt":"2023-10-30T15:00:11","guid":{"rendered":"https:\/\/libmod.de\/forum-1a-verantwortlichkeit-fuer-kriegsverbrechen-die-internationale-regelbasierte-ordnung-auf-dem-pruefstand\/"},"modified":"2023-11-14T10:03:03","modified_gmt":"2023-11-14T09:03:03","slug":"forum-1a-accountability-for-war-crimes-putting-the-international-rules-based-order-to-the-test","status":"publish","type":"post","link":"https:\/\/libmod.de\/en\/forum-1a-accountability-for-war-crimes-putting-the-international-rules-based-order-to-the-test\/","title":{"rendered":"Forum 1a: Account\u00adability for war crimes: putting the inter\u00adna\u00adtional rules-based order to the test"},"content":{"rendered":"

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How can those respon\u00adsible for war crimes and crimes under inter\u00adna\u00adtional law be held accountable? Christoph Heusgen, Tania Freiin von Uslar-Gleichen, Anton Korynevych and Frank Hoffmeister discussed questions of inter\u00adna\u00adtional criminal law.<\/h3>\n

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As Anton Korynevych explained, the Ukrainian government is endeav\u00adouring to set up a special tribunal for the crime of aggression \u2014 the start of the war of aggression \u2014 via the United Nations in order to avoid two problems \u2013  the trial in the absence of the accused and the lifting of immunities.<\/p>\n

\u201cA special tribunal for the crime of aggression can be set up by a vote in the General Assembly\u201d (Christoph Heusgen)<\/h2>\n

Christoph Heusgen, Chair of the Munich Security Conference and former German Ambas\u00adsador to the UN, argued in favour of reforming the UN Security Council and strength\u00adening 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 emphat\u00adi\u00adcally support the explo\u00adration of this possi\u00adbility and not allow the law of the jungle to prevail.<\/p>\n

The estab\u00adlishment of a special tribunal is considered necessary in view of the Russian war of aggression against Ukraine, as the Inter\u00adna\u00adtional 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 inter\u00adna\u00adtional criminal law could be closed, Frank Hoffmeister, Director of General Affairs at the EEAS, began by clari\u00adfying that, from a legal perspective, an act of aggression by Russia against innocent civilians in Ukraine was clearly a crime under inter\u00adna\u00adtional law.[\/vc_column_text][vc_gallery interval=\u201c3\u201d images=\u201c58873,58879,58875,58877,59003\u201d img_size=\u201cfull\u201d][vc_column_text]<\/p>\n

State respon\u00adsi\u00adbility and individual criminal liability<\/h2>\n

This has two conse\u00adquences. Firstly, state respon\u00adsi\u00adbility, i.e. Russia as a state must take respon\u00adsi\u00adbility for the offence under inter\u00adna\u00adtional law and make amends for it. Secondly, there is individual criminal liability of those in the Russian leadership who are respon\u00adsible for the war of aggression, in particular President Putin, Prime Minister Mishustin, Defence Minister Shoigu, and senior military officers.<\/p>\n

With regard to the question of state respon\u00adsi\u00adbility, Ukraine has brought an important case before the Inter\u00adna\u00adtional Court of Justice (ICJ): Ukraine has sued Russia for genocide before the ICJ. The EU had shown overwhelming solidarity here, with 26 member states inter\u00advening in The Hague to support Ukraine\u2019s legal opinion.<\/p>\n

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.<\/p>\n

The Inter\u00adna\u00adtional Criminal Court may only inves\u00adtigate 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\u2019s hands are currently tied, according to Hoffmeister.<\/p>\n

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). Unfor\u00adtu\u00adnately, unlike the Security Council, the General Assembly cannot take coercive measures against Russia, but can only make recommendations.<\/p>\n

On the other hand, if Ukraine asks inter\u00adna\u00adtional 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 cooper\u00adation between Ukraine and inter\u00adna\u00adtional partners in the form of a so-called \u201ccoalition of the willing\u201d and encourage all members to adopt a joint resolution on this. Around 40 states are currently trying to get this idea off the ground.<\/p>\n

Tania Freiin von Uslar-Gleichen, Commis\u00adsioner for General and Special Inter\u00adna\u00adtional Law at the Federal Foreign Office, commented on Germany\u2019s role in this complex process. Germany is working inten\u00adsively on closing this crimi\u00adnal\u00adi\u00adsation gap. \u201cWe cannot present a special tribunal as victor\u2019s justice (...). We need legit\u00adimacy, especially when it comes to breaking through immunity\u201d.  Germany is pursuing a two-pronged approach. Firstly, together with Ukraine, to create an effective and legit\u00adimate instrument for the prose\u00adcution of the Russian political and military leadership under inter\u00adna\u00adtional criminal law, which should become a precedent. Secondly, to reform the Rome Statute and authorise the Inter\u00adna\u00adtional Criminal Court to condemn the war of aggression, even if the aggressor state is not a member of the Inter\u00adna\u00adtional Criminal Court.[\/vc_column_text]<\/p>

To the Recording<\/a><\/div> [vc_\u200bcolumn_\u200btext]\n

\"Textende\"<\/p>\n

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