fThe European community came together almost every day this week to press ahead with dealing with the Russian war of aggression under international law. The G7 justice ministers met for the first time in Berlin and agreed to cooperate more closely. In Bucharest, the EU Commission examined ways to hold Moscow accountable. Russia must pay for its crimes, said Commission President Ursula von der Leyen, “including the crime of aggressive war against a sovereign state.” Ukrainian politician Anton Korynevych concluded on Thursday: “Things are moving.”
Korynevych is a special envoy in Ukraine’s foreign ministry and is currently touring with a group of lawmakers across Europe and then to the United States. The delegation also stopped in Berlin to promote a specific legal process.
The politicians are primarily concerned with punishing Russia’s war of aggression – a crime for which the International Criminal Court (ICC) has no mandate vis-à-vis Russia. He is primarily responsible for the prosecution of genocide, crimes against humanity and war crimes.
In 2010, after a long struggle, the contracting states of the ICC agreed on an extension and defined the crime of “aggression”; since 2018 the new responsibility has also been activated. But there are many loopholes. These include a special feature in the event that a country that is not one of its contracting states applies to the Court.
Such is the case with Ukraine, which referred the case to the ICC back in 2013. If investigations are triggered by such a declaration of submission, this has consequences: In this case, the Court of Justice is only responsible for wars of aggression if the attack comes from a contracting state. Russia is not one of them.
Third countries can only be brought before the ICC by other third countries for a war of aggression if the UN Security Council agrees. This in turn is opposed by a Russian veto. Investigations into the crime of aggressive war are also impossible at the national level. But that is what Ukraine is all about.
Bring the Russian leadership to justice
Anton Korynevych said in Berlin that the legal investigation should not only be about those who carried out war crimes in Ukraine. It is crucial to bring to justice the Russian leadership that ordered the war of aggression. It is at the beginning of everything, added MP Maria Mesentseva. It is essential not only for Russia, but for the entire international community to punish those responsible. This also applies in view of past and unpunished Russian aggression, for example against Georgia.
The Ukrainian delegation in Berlin also included Oleksandra Drik from the Center for Civil Liberties, a Ukrainian human rights organization that will be awarded the Nobel Peace Prize next week. The organization mainly documents war crimes against Ukrainian civilians. However, they are not the only ones affected by Russia’s war, said Drik. There are victims all over the world – for example with a view to the energy and food crisis caused by the war. Justice must also be established in this comprehensive sense. That only works with a special tribunal.
International law experts have occasionally criticized these plans, which the EU Commission has also been investigating in the past few days. They call for a focus on the ICC. Despite all the gaps, the Court remains the most competent and best equipped institution of international criminal law. More tribunals would weaken him, so the concern. The Ukrainian special envoy Korynevych does not share these fears. In Berlin he referred to the excellent relations with the court in The Hague. It’s not about competition, it’s about complementarity.
