The Russia-Ukraine Conflict, Universität Hamburg

Chapter 14

National trials against war criminals: A new special criminal court?

by Johanna Reim

Headline of the Bild, a German newspaper, of March 18, 2023: "Justice Minister Bushman after International Court of Justice ruling: We would arrest Putin immediately"

^{Why is Vladimir Putin still walking around freely?
Why is the International Criminal Court not taking action?
Why are politicians debating a special criminal court?}

What is the issue?

The rocky path of international criminal courts – a history

Picture of the hearing room of the Nuremberg Tribunal

Bundesarchiv: https://commons.wikimedia.org/w/index.php?curid=5364079

Courtroom of the Nuremberg Tribunal from September 30, 1946

After the Second World War, the foundation stone of all international criminal courts is laid by the International Military Tribunal as part of the Nuremberg Trials. In the 1990s, the criminal courts for the former Yugoslavia and Rwanda follow.

Today, at the International Criminal Court in The Hague, there is the possibility of holding people criminally responsible for, among other things, war crimes, based on the catalog of crimes in the so-called Rome Statute of the Court.

However, Russia and Ukraine are not members of the Court!

Illustration: Marlin Beringer

Neither Russia nor Ukraine is a party to the Rome Statute of the International Criminal Court. Generally, only the state parties to the Statute have the possibility of having the public prosecutor's office of the Court investigate.

But there are other options:

However, investigations and accusations are possible in “detours”!

1st option: The UN Security Council

Illustration: Marlin Beringer

Such an detour represents the UN Security Council and a referral of the “situation” to the International Criminal Court. However, Russia is a permanent member with veto power and is currently blocking any actions related to Ukraine. So this option is unrealistic.

2nd option: Recognition of the International Criminal Court

https://taz.de/Haftbefehl-des-IStGH/!5921389/#:~:text=BERLIN%20taz%20%7C%20Am%2017.,aus%20der%20Ukraine%20nach%20Russland.

Headline from March 24, 2023 on taz.de, a German newspaper: "ICC arrest warrant: Will Putin go on trial?"

Already in 2014, after the first Russian invasion and occupation of Crimea, Ukraine unilaterally recognized the so-called jurisdiction of the International Criminal Court. This allows the Court's office of the prosecutor to investigate war crimes committed by Russia in Ukraine since 2014.

On March 17, 2023, the first arrest warrant was brought against Russian President Vladimir Putin and the Russian children's rights commissioner based on reasonable suspicion of the deportation of Ukrainian children.

3rd option: A special tribunal

Tweet series by Gordon Brown, former Premier of the UK, from December 28, 2022

In addition, some are calling for the establishment of a special criminal court to prosecute not only war crimes but also Vladimir Putin's illegal aggression against Ukraine as such.

Putin cannot currently be charged of this by the International Criminal Court. However, such a special court is not easy to set up and political and legal challenges exist.

Which option is appropriate? Realistic?