The Parliament of Ukraine has appealed to the international community to set up a special international tribunal for the crime of Russian aggression against Ukraine. In an interview with DW, Claus Kress, an international law expert at the University of Cologne, explains the function of such a jurisdiction, why it would also be possible without Russia’s consent and why a conviction of Russian President Vladimir Putin is not absolutely necessary.
DW: Mr. Kress, what would the required international special tribunal be about?
Claus Kreß: The special tribunal should deal with the accusation of aggression. This is so important for Ukraine because it is about the accusation of war per se. From the very understandable point of view of Ukraine, the unleashing of aggressive war is the “original sin” that paved the way for the countless misdeeds in the course of the war, the war crimes.
How likely is the establishment of such a special tribunal in Germany?
Kress: Like a whole series of other countries, Germany has not yet decided on this issue. This is not surprising given that there are a number of difficult legal and political issues to be resolved. The talks have recently gained significant momentum, but I cannot say when they will conclude.
What will the establishment of a special court look like in practice?
Kreß: Various models are currently being discussed. In my view, the preferable way would consist of two steps: The first would be a resolution of the General Assembly of the United Nations. For this to happen, the necessary majority would have to be secured in advance. Because it would be very unfortunate, also and not least from the point of view of Ukraine, if a corresponding vote in the General Assembly were to fail.
However, unlike the United Nations Security Council, the General Assembly cannot set up an international criminal court. However, on behalf of the United Nations, it can express the desire of the international community to do so. That would be of paramount importance to the question of the legitimacy of such a tribunal.
According to this, the Secretary-General of the United Nations could conclude an international treaty with Ukraine on the establishment of the tribunal.
How long could that take?
Kreß: Criminal proceedings are a complex process. The first step would be the initiation of investigations, i.e. the securing of evidence, insofar as this supports it, the determination of the accused and the precise justification of the respective allegations. That in itself is a very demanding process.
While the crime of aggression is firmly enshrined in customary international law, there have been very few international proceedings against it. The trials before the military tribunals in Nuremberg and Tokyo after the Second World War remain the decisive precedents to this day. Every step in criminal proceedings based on suspicion of aggression must therefore be carefully considered. One should therefore not expect a high-speed process under any circumstances.
However, even the start of investigations by an international criminal court would send the enormously important message that the international community also takes the suspicion of a crime of aggression deadly seriously. So that it gives it no less importance than the allegations of war crimes, crimes against humanity and genocide over which the International Criminal Court exercises its jurisdiction in Ukraine’s situation.
Does the war have to end before the trials can begin?
Kress: In the case of Nuremberg and Tokyo, but also in most of the proceedings before the international criminal tribunals for Rwanda and the former Yugoslavia, the hot phase of the conflict was already over. But trials are in principle possible before the end of the war.
The situation changed above all with the establishment of the International Criminal Court (in 2002, editor’s note). This court is a permanent institution and can become active within the scope of its competence as soon as suspicions arise.
If arrest warrants and indictments come about, what problems does international criminal justice face?
Kress: The crime of aggression is a leadership crime. So it is about the criminal liability of the political and military leadership of Russia, headed by President Putin. The resulting key practical challenge, however, is one that also applies to the International Criminal Court: Russian suspects who are on Russian territory will not be approached as long as the current regime remains in power.
Assuming regime change comes after Putin’s death, wouldn’t it all be for nothing?
Kress: No. Of course, the Russian president is at the center of the allegations, at least the allegations of the crime of aggression. But President Putin is not the only suspect. In the case of systematically committed war crimes, crimes against humanity and genocide, there are typically those primarily responsible at the top of the respective unjust system, but also those responsible at the lower hierarchical levels, right down to those who commit the atrocities on site. The suspicion is therefore by no means directed against just one person.
I would like to ask you to consider something else: of course, if the perpetrator is guilty, the purpose of criminal proceedings is only fully fulfilled in the conviction and the execution of the sentence. But the very beginning of investigations is a sign to the world that everything possible is being done to investigate the suspicion of a crime under international law. Even an international arrest warrant can restrict a suspect’s freedom of movement, and even one overwhelming indictment can contribute to the delegitimization of a leader.
Claus Kreß is a professor of criminal and international law, holds the chair for German and international criminal law at the University of Cologne and heads the institute for peacekeeping law there.
The interview was conducted by Olena Perepadya
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The original of this article “International lawyers: “Putin is not the only suspect”” comes from Deutsche Welle.