AFrom his bunker, Ukrainian President Volodymyr Zelenskyy recently addressed the UN Security Council, the body that bears “primary responsibility for maintaining international peace and security.” This is what the UN Charter stipulates. Selenskyj described the atrocities of Bucha in detail. Then he asked: “Where is the security that the Security Council is supposed to provide?”
He gave the answer himself: “We don’t have that level of security.” Unfortunately, one has to admit that the United Nations cannot work effectively. Far-reaching reforms are necessary. Finally he asked: “Ladies and gentlemen, are you ready to shut down the United Nations? Are the days of international law over? If the answer is no, you must act. Now.”
Selenskyj expressed an impression that many people have had. The invasion of Ukraine, the massacres, the blatant threats of chemical weapons – all this looks like the end of justice. Elementary principles did not stop Putin from invading, nor are they stopping him. Once again, the limits of international law are being starkly and bitterly exposed. It is the weaknesses of a legal system that cannot be enforced. Still, it would be wrong to proclaim their end. Even massive violations do not change the validity of the law. This is what makes them identifiable in the first place.
International criminal law as a political factor
The American legal scholar Samuel Moyn once spoke of the “last utopia” with regard to the legally non-binding Universal Declaration of Human Rights. These days one is inclined to call binding international criminal law that. But it also has an effect in reality, even if it doesn’t stop the war. States and their rulers will be judged by it – regardless of whether Putin ends up before the International Criminal Court (ICC) in The Hague. This is unthinkable without a regime change, and the judges are ultimately dependent on a minimum of cooperation. The home state must at least allow the transfer of war criminals to take place. In Russia, too, the balance of power can change.
The International Court of Justice in The Hague is a court war criminals must fear.
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Image: dpa
International criminal law has already become a political factor. The Russian invasion brought the world community together. After Karim Asad Ahmad Khan, the court’s chief prosecutor, suggested a so-called state transfer on February 28, it was only a few days before more than forty countries followed suit. They called on the ICC to take action, giving the investigation a special legitimacy. There had never been such a sign.
It is all the more important for the Court because its effectiveness depends to a large extent on the goodwill of the States. After all, he is not universally responsible. In principle, a perpetrator can only be punished there if he belongs to a state party, the crime happened in a state party or there is a UN Security Council resolution.
The court strengthens
Today, the ICC has 123 States parties, after some have turned their backs in recent years, including Russia. The US was never one of them. The Washington government is even forbidden to cooperate with the ICC. More recently, however, support has been making its way there, too – another sign that the Court has strengthened in its twentieth year.
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Ukraine is also not a state party, but submitted a declaration of submission at the end of 2013. After the annexation of Crimea, the ICC was therefore able to initiate preliminary investigations. At the beginning of March, this turned into a formal preliminary investigation, which mainly deals with war crimes. The focus is initially on the costly securing of evidence. Then it will be a question of identifying the perpetrators and those behind them, right up to the Kremlin.
A long way – which is worthwhile
After all, international criminal law has the big ones in mind. Unlike in their home countries, not even incumbent members of the government in The Hague can invoke immunity. Should the court issue arrest warrants, Russia’s isolation would increase significantly once again. Finally, contracting states are obliged to cooperate in the execution of international arrest warrants, while non- contracting states are entitled to do so.
The importance of all these steps should not be underestimated, no matter how sobering the long and tedious path may seem. War crimes are not subject to a statute of limitations. And the judiciary is patient.
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