Why a special tribunal is needed to prosecute the crime of aggressive war against Ukraine
A special tribunal is needed to prosecute the crime of aggressive war against Ukraine. As reported on faz.net on January 14, 2023, Germany’s Federal Minister of Justice Dr. Marco Buschmann spoke out against the establishment of a tribunal to prosecute Russian nationals for the crime of aggressive war under international law. He justified this by saying that the International Criminal Court (ICC) should not be weakened and that it is difficult to explain to African states why the ICC is active in conflicts on the African continent, but in the case of a war on the European continent own tribunal should be set up. This argument is not convincing:
The jurisdiction of the ICC is complementary. The ICC is to take action when effective criminal prosecution at the national level is not possible. The first obligation to enforce international legal standards always falls on the states themselves. The fact that numerous proceedings before the ICC have so far had their origins in domestic armed conflicts on the African continent is not a political decision made in The Hague, but simply follows from the factual and legal situation.
In the present case, however, it is precisely not possible to pursue the criminal right of aggressive war in any other way. Ukraine, Russia and Belarus are not parties to the Rome Statute, the international treaty on which the work of the ICC is based. However, Ukraine has recognized the jurisdiction of the International Criminal Court. In principle, therefore, criminal offences in Ukraine or by Ukrainian nationals can be prosecuted by the ICC. However, this does not apply to the crime of aggressive war, since prosecution for this is only possible if the state whose nationals are suspected has also given its consent. Russia and Belarus have not done so, and it is unlikely that Putin will agree to his own prosecution by the ICC. All of these arguments are not new, but were presented in detail in September 2022 by international law scholar Oona A. Hathaway, a professor at Yale University.
A ratification of the Rome Statute by Russia (and possibly Belarus), which would only aim to enable criminal prosecution of its own nationals, currently seems more than absurd. In view of the fact that this follows from years of developments in international law, which at least lawyers should be aware of, it is surprising that the Federal Ministry of Justice assumes that these connections are not known to third countries, for example in Africa, or that this cannot be explained. Federal Minister of Justice Dr. Buschmann's possible weakening of the International Criminal Court is not to be feared. This has also been demonstrated in other internationalized law enforcement mechanisms implemented since the International Criminal Court began operating in 2002.
While Ukraine has recognized the jurisdiction of the International Criminal Court, it is Russia and Belarus that are preventing effective prosecution. This is only possible with a corresponding special tribunal.
Russians are committing genocide in Ukraine, notably by deporting Ukrainian children to the Russian Federation. This amounts to genocide within the meaning of Article II (e) of the Genocide Convention to which both Russia and Ukraine are parties. War crimes and crimes against humanity are repeatedly committed by Russian troops. As I write this, Kyiv and other cities across Ukraine are rocked by explosions again. These crimes are based on the crime of aggression, i.e. aggressive war. This specific cannot be effectively tracked in this case.
It is disappointing and outrageous that Germany Federal Minister of Justice of the Federal Republic of Germany, in view of a war of aggression that violates international law and ongoing genocide, does not clearly speak out in favour of legal reappraisal. Like the German government's hesitant attitude towards supporting Ukraine, this attitude will be noticed abroad. The loss of reputation and trust that Germany is suffering continues to increase. One gets the impression that the German government values Moscow's goodwill more than justice and protection for the people of Ukraine. Crimes against Ukrainian civilians continue at this moment. Berlin's hesitant attitude helps make this possible. Ultimately, the view of the Federal Minister of Justice serves solely to protect the criminally responsible persons in Russia and Belarus and is incomprehensible against the background of Germany's special historical responsibility.