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Nuremberg II: steps taken towards a Tribunal for Putin and his henchmen

Nuremberg II: steps taken towards a Tribunal for Putin and his henchmen

Nuremberg II for the sentencing of the Russian major war criminals

Contents

Article by: Winfried Schneider-Deters
Edited by: Kate Ryabchiy

III. “Nuremberg II” for the sentencing of the Russian “major war criminals”

“If Putin falls over his war, the question of a Russian ‘Nuremberg’ will be on the table,” wrote the Russian-Swiss writer Michail Schischkin after Putin’s invasion of Ukraine.[24]

nuremberg trial 78 years ago awaits putin
What Putin is about to face began 78 years ago in Nuremberg, an illustrative image/ Source: uainfo.org

Whether there will ever be a trial of the Russian “major war criminals,” a “Nuremberg II,” and punishment for the Russian crime against peace, Russian war crimes, Russian crimes against humanity, and genocide committed by Russia is uncertain. However, conviction by an international tribunal must take place, even if it does not lead to the sentences imposed being served, in order to brand the perpetrators and the regime they served, says Professor of International Criminal Law (University of Marburg), Stefanie Bock.[25]

In the joint Berlin Declaration that concluded the two-day meeting of the G-7 justice ministers held in Berlin on 28 – 29 November 2022, the seven justice ministers pledged to bring those responsible for war crimes in Ukraine to justice.

The “prosecution of the core crimes of international law is our top priority,” said the German host, Justice Minister Marco Buschmann; there is “great agreement” that the “Russian leadership” must be prosecuted. The legal processing of the Russian atrocities in Ukraine will take years, perhaps decades. But the clear message to the world is: “War criminals […] cannot feel safe anywhere,” Buschmann explained.

III.1 The Emergency Decision of the ICJ of 16 March 2022

A few days after the Russian invasion on 24 February 2022, Ukraine brought an action before the ICJ (World Court) in The Hague, seeking emergency measures against Russia.[26] Ukraine sought a declaration that the Russian invasion was illegal under international law. Ukraine referred to the UN Genocide Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). Kyiv defended itself against Moscow’s claim that Ukraine was committing genocide against Russians living in Ukraine. Russia had used this baseless allegation, among others, to justify the invasion.

Article 41 of the ICJ Statute (ICJSt) gives states the possibility to apply for interim relief before the ICJ. In urgent cases, the ICJ has the power to order precautionary measures to protect the rights of the states involved.[27]

On 7 March 2022, the hearing of the case began, and on 8 March, Russia had the opportunity to reply. On 16 March 2022, the ICJ issued an urgent decision and ordered precautionary measures (“provisional measures”) that are binding on both parties.[28] The actual legal proceedings (main proceedings) are still pending (31.03.2923). The emergency decision does not prejudge the final judgment.

The emergency decision of the ICJ of 16 March 2022 – Ukraine v. Russia – was explained by Mareike Jung and Julia Weismann of the Scientific Service of the German Bundestag.[29]

All UN Member States are automatically parties to the Statute of the ICJ according to Article 93(1) of the UN Charter, but this does not give the ICJ automatic jurisdiction over the parties to a dispute. In principle, the ICJ only has jurisdiction if both parties have consented to it, that is, have submitted to the ICJ’s jurisdiction:

  • either by a general declaration of submission (according to Art. 36 para. 2 ICJ Statute)
  • or by a concurring ad hoc declaration by the parties on jurisdiction over the specific dispute (under Art. 36(1) Case 1 of the ICJ Statute)
  • or by a corresponding clause in an international treaty (Art. 36(1) Case 2 ICJ Statute)

Ukraine and Russia made neither a general nor an ad hoc declaration of submission; however, Ukraine was left with the option of establishing the ICJ’s jurisdiction via a corresponding treaty clause: in its application, it invoked the submission clause under Article IX of the CPPCG[30] of 9 December 1948 (Genocide Convention), to which both Ukraine and Russia are parties. The ICJ considered the admissibility of the proceedings under the Genocide Convention (Article IX).

According to Mareike Jung and Julia Weismann, Ukraine’s application for provisional measures was not aimed at establishing that the serious Russian attacks on Ukrainian cities and on Ukrainian civilians constituted genocide, that is, that Russia was committing or planning genocide in Ukraine, but at Russia’s justification for the attack on Ukraine. Russian President Vladimir Putin had repeatedly claimed that Ukraine was committing genocide in the Ukrainian Donbas, which made Russian action necessary and justified it.

Ukraine’s trial representative, Anton Korynevych, stated at the hearing that this claim was a “terrible lie by Putin,” and requested that the ICJ find that the Genocide Convention did not provide a legal basis for the Russian invasion.[31] The Ukrainian application states (paragraphs 2 and 3):

“[Russia-ed.] has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic,’ and then declared and implemented a ‘special military operation’ against Ukraine with the express purpose of preventing and punishing purported acts of genocide that have no basis in fact. […] Ukraine emphatically denies that any such genocide has occurred and brings this application to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.”

Ukraine’s real concern was to stop the Russian attack, and for the ICJ to issue interim injunctions to that effect.

The admissibility of a decision by the ICJ on the merits depended on whether the Genocide Convention could be used to justify the ICJ’s jurisdiction. Russia argued that the regulation of the legality or illegality of military operations was not the subject of the Genocide Convention, which was why the ICJ did not have jurisdiction (in the sense of Art. IX).

The Russian use of force was justified as an act of self-defense under Article 51 of the UN Charter. The ICJ did not accept the Russian argument, finding that there was a “dispute,” that is, a “divergence of views” between the two parties on the question of whether Russia was within its rights in invoking genocide against Ukraine and whether the Russian invasion could be based on the Genocide Convention.

The ICJ overwhelmingly upheld Ukraine’s case “(almost) in its entirety” – with 2 dissenting votes out of a total of 15 (Judge Xue of China and Judge Gevorgian of Russia). The court ordered Russia to immediately cease military operations on the territory of Ukraine – and to ensure “that all military or irregular armed units led or supported by Russia, as well as all organizations and persons under its control or direction, do not take steps in support of the military operations.”

The ICJ explained its decision as follows:

Article 1 of the Genocide Convention necessitates member states to prevent and punish genocide committed in other member states. However, in fulfilling this obligation, the limits of international law must be respected. Furthermore, the Genocide Convention must be interpreted in light of Article 1 of the UN Charter, which specifies the primary objective of UN peacekeeping. Given the significance of Article 1 of the Charter, the Genocide Convention prohibits the unilateral use of force by a Party in the territory of another State for the purpose of preventing or punishing an alleged genocide. Ukraine must, therefore, not be subjected to military operations to enforce the Genocide Convention.

“[…] Ukraine has a plausible right not to be subjected to military operations by [Russia-ed.] for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine.”

Russia did not participate in the oral hearing, but defended itself in writing;[32] this had no influence on the outcome of the ICJ proceedings.

The ICJ’s order of precautionary measures is legally binding on both parties. If one party, in this case, Russia, does not comply with its obligations, the other party can turn to the UN Security Council(UNSC). The UNSC may adopt measures to give effect to the judgment” (Article 94, para. 2 of the UN Charter). However, this article explicitly refers only to judgments, not to orders for interim measures.

In the main proceedings, the ICJ, if it again considers itself competent, has to clarify whether Russia’s use of force in Ukraine, under the pretext “to prevent and punish” according to Article I of the Genocide Convention, was legal. It will (have to) find a violation by Russia of the precautionary measures ordered. Possibly, the ICJ will order reparations obligations.[33]

Unlike in the case of an order in the interim relief proceedings, a mechanism for enforcement is provided with regard to the ICJ’s ruling in the main proceedings (Art. 94, para. 2 of the UN Charter). Theoretically, the UNSC could take action; practically, this is futile because of Russia’s veto power.

While the ICJ’s 16 March 2022 precautionary measures order is not enforceable, it is nevertheless of significance that should not be underestimated; Jung and Weisman argue, and justify their opinion as follows:

The ICJ judges had clearly stated,

  • that the ICJ has the jurisdiction to judge the case on the basis of the Genocide Convention
  • that Russia’s attack constituted a violation of international law
  • that Russia is legally obliged to cease military operations in the territory of Ukraine that began on 24 February 2022

While the ICJ’s rulings are binding, the court cannot enforce its rulings itself. Should Ukraine turn to the UNSC for enforcement, however, it would fail in that body because of Russia’s veto.

The question of whether Russia is planning, committing, or has already committed genocide against Ukrainians was not the subject of the dispute to be decided by the ICJ.

III.2 The European Court of Human Rights: closing all cases against Russia

Because of the invasion of Ukraine, the European Council in Strasbourg suspended Russia’s membership. Russia, for its part, announced its withdrawal from the Council of Europe after 26 years of membership one day before the corresponding decision of the Committee of Ministers, thus pre-empting a decision by the other member states.

Following Russia’s withdrawal or expulsion from the Council of Europe, the European Court of Human Rights (ECtHR) suspended all proceedings against Russia[34] on 17 March 2022, including the Ukraine v. Russia state complaint case (No. 11055/22). A main case decision of the ECtHR on human rights violations in the course of the Russian attack on Ukraine, therefore, did not materialize.

Following Ukraine’s request of 28 February 2022, the ECtHR had already taken “interim measures” under Article 39 of its Rules of Procedure on 1 March 2022.[35] In view of the military operations in Ukraine, the ECtHR had seen a risk of serious violations of the Convention rights of the civilian population, in particular the right to life, the prohibition of torture or inhuman or degrading treatment or punishment and the right to respect for private and family life, and decided

“to indicate to the Government of Russia to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.”

With this decision, the ECtHR had changed course: until now, the ECHR did not apply in an international armed conflict, in line with the Roman legal principle legitimizing the breaking of laws in times of war: “Inter arma enim silent leges”.

The decision of 1 March 2022, particularly the “provisional measures” designated by the ECtHR was no more than an appeal for compliance with applicable rules of IHL;[36] Russia’s injunction pronounced by the ECtHR did not go beyond what is already required under IHL. The prohibition of attacks on civilians and civilian objects is enshrined in Article 51/52 of the Additional Protocol of 8 June 1977 to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I). Failure to comply with these obligations may constitute war crimes under the Rome Statute of the ICC .

On 29 June 2022, Ukraine filed a complaint (Ref. 11055/22) with the ECtHR for serious human rights violations, accusing Russia of targeting and indiscriminately attacking Ukrainian civilians. Tens of thousands of civilians were killed, injured, arrested, or missing. Hundreds of thousands have lost their homes, and millions have been displaced. The attacks on civilians were carried out by the Russian military or by Russian-controlled paramilitary forces.

Russia was expelled from the Council of Europe, but it remained a party to the European Convention on Human Rights (ECHR) until 16 September 2022.

III.3 The ICC

III.3.1 Investigations by the ICC

On 2 March 2022, the Chief Prosecutor of the ICC, Karim Khan, announced in The Hague that the ICC would launch investigations into Russian war crimes and crimes against humanity in Ukraine; 39 States Parties to the ICC had made a recommendation to this effect. There is “reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine,” the chief prosecutor had announced the day before.

The investigation would initially focus on possible crimes prior to Russia’s current invasion, particularly the events surrounding the occupation of Crimea and the fighting in eastern Ukraine. However, the investigation would be expanded to include the current war.

Khan did not specify when the ICC expected the first indictments. EU Justice Commissioner Didier Reynders said the first cases should be on the ICC’s table “before the end of the year (2022) and the first trials could start.”

International law expert Claus Kreß[37] welcomed the ICC’s initiation of formal proceedings against Russia. This would allow the ICC chief prosecutor Karim Khan “to act without judicial authorization,”[38] which would otherwise have been necessary. The court would not currently address the question of whether the Russian war against Ukraine was a war of aggression. The prosecutor would need a green light from the UNSC to do so because Russia is not a state party to the ICC.

“Of course, that will not happen as long as Putin is Russian president.”

The investigations also do not refer to Russian President Vladimir Putin or a specific accused, but to the “entire conflict,” explained Kreß. Before an arrest warrant could be issued, the suspicion against a specific accused would have to be substantiated to such an extent that the investigation could be specifically directed against him. Such an arrest warrant would have to be executed by a state because the ICJ does not have its own power of execution.

On 13 October 2022, the ICC in The Hague began official investigations into war crimes in Ukraine. According to Chief Prosecutor Karim Khan, Ukraine could extradite alleged Russian war criminals to the ICC in The Hague if the trial could not take place in Ukraine for legal reasons. The ICC had previously stated that it was important for Ukraine to bring the suspects to trial itself, if possible. While Russia is not a state party to the Hague Tribunal, according to Khan, this is

“not an obstacle to our jurisdiction”: if “necessary” and if there is “a reason why these trials cannot take place in Ukraine, […] I am sure there would be cooperation with Ukraine.”

Evidence gathering in Ukraine

In an interview with journalist Ruth Green on 4 October 2022, Ukraine’s Prosecutor General Andriy Kostin, appointed in July, said that as of 3 October, 36 000 Russian war crimes had been registered. All cases were immediately documented, and 28 mobile investigation teams were in operation. The majority of the crimes were related to the destruction of homes and civilian infrastructure. According to official figures, 7 500 civilians were killed, including 400 children.

In the case of the “crime of aggression,” specifically the decision to attack Ukraine, there are 626 suspects from the Russian political and military leadership.

On the genocide issue, Kostin said, “We now can prove the widespread and systematic pattern of attack against Ukrainians due to their identity, and that has nothing to do with the combatants engaged in armed clashes.” Hundreds of thousands of Ukrainians were deported to Russia, many of them children. So-called filtration camps had been set up. But genocide is not a simple case. In Ukraine’s legal system, there is no possibility of prosecuting Russia’s highest political leadership, namely President Putin, for genocide. This case can only be dealt with at the level of the ICC.

The Ukrainian Prosecutor General’s Office encourages the use of the Berkeley Protocol[39] to authenticate evidence from public sources, Kostin continued. In March (2022), a special platformwarcrimes.gov.ua was launched where anyone can submit information on Russian war crimes. To date, more than 18 000 messages have been received. Furthermore, the “eyeWitness app” of the International Bar Association (IBA) is used, as well as the reports of international fact-finding missions such as the UN Mission and Inquiry Commission and NGOs such as Human Rights Watch (HRW).

As reported by the British news channel Sky News, in December 2022, a group of 90 Ukrainian judges completed a training course in conducting trials of Russian war criminals. The program will ensure the prosecution of war criminals on an unprecedented scale while the war is still in progress, said the Attorney General for England and Wales, Victoria Prentis.

The European Commission and the Office of the Prosecutor (OTP) of the ICC agreed on the OTP’s digital evidence processing capacity in the face of increased global demand. The European Union (EU) is providing €7.25 million ($8.3 million) in crisis response funding for this purpose.

“We – prosecutors, lawyers, experts, law enforcement agencies and international partners – are all fighting for justice in Ukraine and at the international level. We all believe that we need to prove to Ukrainians and to the civilized world that the rule of law prevails over the rule of force,explained Ukrainian Prosecutor General Kostin.

III.3.2 Assessing the ICC’s role in prosecuting Russian crimes of aggression

The ICC Hague Tribunal is not a suitable entity for the prosecution of the crime of aggression. It is true that the “crime of aggression” falls under the jurisdiction of the ICC since the amendment of the Rome Statute in 2010 in Kampala, Uganda.[40] However, the ICC does not have jurisdiction over Russian nationals, as Russia has not ratified the Rome Statute. Article 15bis, point 5 of the Rome Statute reads literally,

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”

There is currently no court with jurisdiction over cases of individual criminal responsibility of Russian citizens for the crime of aggression against Ukraine.

Since the ICC has no jurisdiction over the case of a crime of aggression, the Ukrainian leadership is advocating the formation of a special international “Tribunal for Putin” under the auspices of the UN to prosecute and punish Russia’s top political and military leadership for the crime of aggression, according to Ukrainian Prosecutor General Andriy Kostiyn. Such a tribunal would require a decision by the UN Security Council; Ukraine understood that

“Russia and, probably one more permanent member, can impose a veto on such a decision,” Kostin explained. “There is no sense to wait for a successful vote at the level of the Security Council.”

The ICC’s prosecutor, Karim Khan, believes it would be more purposeful to focus on existing institutions, rather than creating new ones, in prosecuting Russia for the crime of aggression against Ukraine. However, calls for Ukraine to use only existing mechanisms, particularly not to pursue the constitution of a new international court (ad hoc for the crime of aggression by Russia against Ukraine), amount to limiting prosecution to only three of the four core international crimes, namely:

  • war crimes
  • crimes against humanity
  • genocide

In fact, this request to Ukraine means accepting impunity for the crime of aggression, Ilona Khmeleva concludes.[41] The crime of aggression is the cause and the trigger for the commission of other crimes. It is the “supreme international crime”. It should not be ignored, Khmeleva asserts.[42]

Referring to the ICC is the wrong approach, Khmeleva argues,

“If the international community really wants to hold the Russian leadership accountable for the ‘crime of aggression,’ there is no other option than the establishment of a special tribunal.”

III.4 A new international ad hoc Tribunal for Putin

III.4.1 The “gap in the architecture of international law”

The legal definition of the term “aggression” was laid down in Resolution 3314 (XXIX)[43] of the UNGA of 1974 and incorporated into the Rome Statute with the same wording.

This definition, however, does not cover the modern “hybridization” of aggression as used by Russia against Ukraine since 2014 until the open conventional military invasion on 24 February 2022.

In an article in the Financial Times on 28 February 2022, “Putin’s use of military force is a crime of aggression,” British lawyer Philippe Sands, who pleads at the UN ICJ and the ECHR, proposed a “special criminal tribunal for the crime of aggression” to hold individuals accountable for the crime of aggression.

In his evening video address on 29 November (2022), Ukrainian President Volodymyr Zelenskyy also called for the creation of a special international “Tribunal for Putin” to hold the Russian leadership criminally responsible. Justice must be done – as it was after the WWII, he said.

In March 2022, a public statement signed by many prominent politicians and renowned jurists[44] (including Benjamin Ferencz, the last surviving prosecutor of the Nuremberg Military Tribunal)[45] called for the creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine.

One of the signatories of this declaration is the renowned French-British jurist Philippe Sands.[46] Aggression is a “leadership crime” for which the state leadership is responsible. If only “war crimes,” “genocide,” and “crimes against humanity” were investigated and prosecuted, then the main perpetrators would go unpunished, argues Sands. Philippe Sands sees a “gap in the architecture of international law” and proposes the establishment of a special criminal court to prosecute the “crime of aggression” to fill this gap.

The European Parliament (EP), the Parliamentary Assemblies of the Council of Europe (PACE), and NATO support the creation of an ad hoc international tribunal to prosecute the “crime of aggression.”

The PACE issued a resolution on 28 April 2022 urging its member states (and observer states) to establish an ad hoc international criminal tribunal with the mandate “to investigate and prosecute the crime of aggression committed by the political and military leadership of [Russia-ed.].” It should have the authority to “issue international arrest warrants and should not be limited by sovereign immunity or immunity of heads of state or government and other public officials.”

On 19 January 2023, the EP voted in favor of a (non-binding) resolution calling for the creation of a special international tribunal to prosecute the Russian crime of aggression against Ukraine. A step towards a “Tribunal for Putin,” it would fill a major gap in the current institutional criminal justice system. (The European Parliament had already previously called on the member states of the European Union to incorporate the “crime of aggression” into national law.)[47]

On behalf of the EP’s Directorate-General for External Policies/ Subcommittee on Human Rights (DROI), the international law scholars Olivier Corten and Vaios Koutroulis of the Université libre de Bruxelles (ULB) wrote an in-depth legal analysis of the innovative project of creating an ad hoc tribunal to try the Russian crime of aggression against Ukraine.

For the authors, two options come into question:

  • The first option is to base the creation of such a tribunal on Ukrainian national law and base it on the right to self-defense complemented by an agreement with the UN or another regional organization. Thus, the tribunal would be authorized by law and allow the prosecution of foreigners for the crime of aggression.
  • The second option seems more “legitimate” to the authors: it would be based on the UN Charter and interpret legal mechanisms already in general use, in particular, the UN “Uniting for Peace” Resolution[48] of 3 November 1950, which was initiated by the US during the Korean War (June 1950 – July 1953) as a way to circumvent the Soviet veto of the UN mandate to continue military action in Korea. The General Assembly recommended the continuation of intervention in Korea in 1950.

III.4.3 PACE Resolution of 26 January 2023

On 26 January 2023, the Strasbourg-based Parliamentary Assembly of the Council of Europe (PACE) unanimously adopted Resolution 2482, calling for the establishment of a special international tribunal to prosecute the Russian leadership.[49]

In point 1 of the resolution, the Parliamentary Assembly not only reiterates that

“[Russia’s-ed.]armed attack and large-scale invasion of Ukraine launched on 24 February 2022 constitute an ‘aggression’ under the terms of Resolution 3314 (XXIX) of the [UNGA-ed.] adopted in 1974 and are clearly in breach of the Charter of the United Nations.”

It also recognizes that Russian aggression against Ukraine did not begin with the invasion on 24 February 2022, but that

“the ongoing aggression is a continuation of the aggression started on 20 February 2014, which included the invasion, occupation and illegal annexation of Crimea by [Russia-ed.].”

This is a remarkable recognition of the hybrid intervention in the Donbas and the military occupation of Crimea as “aggression.”

Point 3 asserts that Belarus participated in Russian aggression by making its territory available, for which the Belarusian leadership should be held accountable.

The aggression lacks any justification under jus ad bellum, such as self-defense, as stated in point 4, and therefore it meets the definition of the “crime of aggression” under Article 8bis of the Statute of the ICC. The Russian political and military leaders who planned, initiated, and executed this aggression, and who were in a position to control the state’s political and military action, should be identified and prosecuted. The resulting atrocities would not have occurred if they had not decided to wage this war of aggression against Ukraine.

Under item 12, the Parliamentary Assembly is receiving increasing evidence that the official Russian rhetoric justifying the aggression against Ukraine, “the so-called de-Ukrainianization process,” bears the hallmarks of public incitement to genocide or reveals genocidal intent to destroy Ukrainians as a national group as such, or at least parts of it. The Assembly recalls that all parties to the Genocide Convention have a duty to punish genocide. Paragraph 13 states that they have a duty to prevent genocide and a corresponding duty to act.

Due to the fact that the ICC currently has no jurisdiction over the crime of aggression against Ukraine (point 5), and because no other international criminal court has jurisdiction to prosecute and punish the crime of aggression against Ukraine due to the likely abuse of the veto power by Russia, and because national courts face many legal and practical challenges on the basis of the principles of territoriality or universal jurisdiction, the Assembly reiterates (under item 6) its unanimous call to all member countries of the Council of Europe to establish a special international criminal tribunal for the crime of aggression against Ukraine. It would be supported by as many states and international organizations as possible, but in particular by the UNGA.

The Parliamentary Assembly believes that the Summit of Heads of State and Government of the Council of Europe, scheduled for 16/17 May in Reykjavík, should endorse the establishment of such a tribunal. The Prime Minister of Iceland and Chair of the Ministerial Committee of the Council of Europe, Katrín Jakobsdóttir, stated that the crimes committed in Ukraine should not go unpunished.

Furthermore, the Parliamentary Assembly asserts that the Council of Europe should take the lead in establishing this special court (point 6). Already in April 2022, the documents of the PACE contained a reference to this matter. In fact, the PACE is the first international body to promote this concept. The EP, the Parliamentary Assemblies of the OSCE, and NATO all joined this initiative.

Point 7 of the resolution lists the parameters of such a tribunal:

  • 7.1 Its jurisdiction would be limited to a “single crime trial,”[50] namely to try and punish the crime of aggression against Ukraine, which was started by Russia on 24 February 2023.
  • 7.2 Its definition of the “crime of aggression” would be in line with Article 8bis of the ICC Statute and customary international law.
  • 7.3 Its Statute would clearly state that functional immunities would not apply to the crime of aggression, in line with the practice of other international criminal tribunals. This principle would apply in particular to citizens of the aggressor state.
  • 7.5 Its role would be complementary to the jurisdiction of the ICC and would in no way affect its jurisdiction over war crimes, crimes against humanity, and possibly genocide.
  • 7.6 Its seat should be in The Hague with a view to cooperation with the ICC.

A Special Criminal Court (SCC) would not be required if the UNSC referred the case of the Russian crime of aggression to the ICC in The Hague, which Russia would undoubtedly veto. The Parliamentary Assembly of the Council of Europe, therefore, supports all efforts to break the deadlock in the UN, including the request to the UNICJ for a legal opinion on existing limitations on the right of veto implicit in the UN Charter.

In paragraph 9 of the resolution, the Parliamentary Assembly urges all member states to take the necessary steps to amend the ICC Statute to either allow referrals to the ICC by the UNGA in the event of a Security Council deadlock or to remove the existing limitations on the ICC’s jurisdiction over crimes of aggression. These changes would strengthen the consistency, legitimacy, and universality of international criminal justice. A longer-term reform of the ICC Statute and the proposal to establish a special tribunal for Russia’s current aggression against Ukraine should be pursued concurrently.

III.4.4 Ukraine proposes special tribunal

Article 437 of the Ukrainian Criminal Code states that:

As an approach to the establishment of a special court, Ukraine proposed an international agreement between Ukraine and a certain number of states, or an agreement between Ukraine and an international organization .

The Ministry of Foreign Affairs of Ukraine formulated five characteristics for a future special tribunal:

  1. the Special Tribunal will investigate and prosecute the crime of aggression against Ukraine according to the rules of the Rome Statute (of the ICC) as defined in Article 8
  2. the jurisdiction of the Special Tribunal shall extend to the events of February 2022, specifically the commencement of the armed attack by Russia against Ukraine
  3. the special court has jurisdiction over natural persons who control or directly direct the political or military actions of the state
  4. the official status of an accused – such as the status of a head of state or another state-level official – does not exempt such a person from individual criminal responsibility and does not mitigate the penalty
  5. the Special Tribunal, as an ad hoc tribunal, will only prosecute the crime of (military) aggression by Russia against Ukraine

The limitation of jurisdiction to the case of aggression against Ukraine avoids competition with the ICC.

III.4.5 Claus Kress’s two-stage international law model

In an interview with Nils Behrndt, Deputy Director General of the EU Commission’s Directorate General for Justice and Consumers, Claus Kress,[51] Professor of German and International Criminal Law, argued for a special international tribunal that “The crime of aggression is an absolute ‘leadership crime’ (‘Führungsdelikt’), Kress explained. “Criminal liability is limited to persons who are in a position to control and direct the political and military actions of a state,” especially, in the case of the Russian aggression against Ukraine, to President Vladimir Putin, Prime Minister Mikhail Mishustin, Foreign Minister Sergei Lavrov, and Defence Minister Sergei Shoigu as well as the Chief of the General Staff of the Russian Armed Forces, Valeriy Gerasimov, and last but not least Dmitry Medvedev, the Deputy President of the Security Council of Russia.

putin henchmen medvedev shoigu surovikin special tribunal
Nuremberg for Russian President Vladimir Putin (left) and his henchmen: Deputy Chairman of the Security Council of the Russian Federation Dmitry Medvedev; Minister of Defence of the Russian Federation Sergei Shoigu; Commander of the Joint Group of Forces of Russia’s invasion army Sergei Surovikin.

Claus Kress proposed a two-stage model for the creation of a special tribunal:

  1. A corresponding resolution of the UNGA expressing its support for the creation of a special tribunal;
  2. The conclusion of an international treaty between Ukraine and the Secretary General of the UN on the establishment of such a tribunal.

III.5 The UN “Uniting for Peace” Mechanism

III.5.1 The UNGA’s “Uniting for Peace” Resolution 377 A (V) of 1950

The UNGA Resolution 377 A (V) “Uniting for Peace”(UfP) Resolution states that in cases where the UNSC is unable to safeguard international security and peace as required by it due to lack of unanimity among its five permanent members, the UNGA shall promptly review the case; the General Assembly may recommend to the UN members appropriate joint action, including the use of armed forces, if necessary, to restore international peace and security.

The UfP Resolution provides the UN with an alternative course of action when a permanent member vetoes the Security Council from carrying out its mandate under the UN Charter, namely peacekeeping. The resolution was adopted on 3 November 1950 by 52 votes to five, with two abstentions.

The resolution thus implemented the mechanism of the Emergency Special Session (ESS).[53]

III.5.2 “Uniting for Peace” Resolution revival in 2022

On 25 February 2022, one day after the start of its invasion of Ukraine, Russia vetoed the UNSC resolution, strongly condemning Russia’s attack on Ukraine and calling for an immediate withdrawal of Russian troops from Ukraine.

In order to obtain a condemnation of Russia’s attack on Ukraine by the UNGA on 24 February 2022, the US resorted to the UfP Resolution of 1950. On 27 February 2022, the Security Council decided by a two-thirds majority to convene an emergency session of the UNGA under the UfP procedure, on 28 February 2022, to discuss the Russian invasion of Ukraine (Resolution 2623). Security Council’s 11 members voted in favor of the US draft resolution, with Russia voting against and three abstentions.

The last time the General Assembly had been convened under the UfP resolution was on the initiative of the US in response to the Soviet invasion of Afghanistan in 1980.

III.5.3 The 11th Emergency Special Session of the UNGA

At the ESS of the General Assembly on 28 February 2022, an overwhelming majority of UN member states expressed their disapproval of Russian aggression. The representative of the US had urged countries to vote in favor of the resolution introduced by Ukraine.

The representative of the EU had stated, “This is not just about Ukraine, this is not just about Europe, this is about defending an international order based on rules.”

On 28 February 2022, the President of the 76th Session (2021-2022), Abdulla Shahid, opened this 11th ESS of the General Assembly since the founding of the UN. Shahid stressed that the military offensive undertaken by Russia was a violation of Ukraine’s integrity and sovereignty.

He cited the UN Charter, which states that conflicts must be settled peacefully, without the threat or use of armed force.

“The ongoing military offensive is inconsistent with this. It is an affront to the founders of this Organization and everything it stands for,” Shahid declared. “The violence must stop. The international humanitarian law must be respected; diplomacy and dialogue must prevail.”

After Abdulla Shahid, the UN Secretary-General António Guterres spoke. In his speech, Guterres called for an immediate end to the fighting in Ukraine.

“We have credible accounts of residential buildings, critical civilian infrastructure and other non-military targets sustaining heavy damage.” Ukraine is facing a “tragedy” – “with potentially disastrous consequences for the whole world.”

Afterward, the Ukrainian representative Serhii Kyslytsya and the Russian representative Vassily Nebenzya presented their positions. Ukrainian UN Ambassador Kyslytsya said,

“If Ukraine does not survive, international peace will not survive. The United Nations will not survive; we cannot be surprised if democracy fails next.”

Russia’s UN Ambassador Nebenzya said Russia’s actions were being “distorted.” The media and social networks were spreading “lies.” The aim of the “special military operation” was to protect the people of “Luhansk” and “Donetsk,” two oblasts of eastern Ukraine that had been subjected to “torment and genocide by the Kyiv regime” for eight years, Nebenzya claimed. “To that end, there is a need to de-militarize and de-nazify Ukraine.”

III.5.4 The Assembly Resolution ES-11/1

On the third day (2 March 2022) of the emergency session, the UNGA adopted resolution ES-11/1 by 141 votes in favor, 5 votes against, and 35 abstentions.[54] It called on Russia to immediately cease its unlawful use of force against Ukraine.

Resolution ES-11/1 fell short of some of the previous “UfP” resolutions: it did not call for sanctions, the deployment of peacekeepers, or the collective use of force. But it did characterize the Russian invasion as an act of “aggression,” a crime under international law.

The resolution strongly condemned “the aggression by [Russia-ed.]against Ukraine in violation of Article 2 (4) of the [UN-ed.] Charter,” and condemned Russia’s declaration as to the necessity of this “special military operation.” Resolution ES-11/1 called on Russia “to cease its use of force against Ukraine” and “to immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.” Moreover, the resolution condemned “all violations of international humanitarian law and violations and abuses of human rights.”

UNGA Resolution ES-11/1 may be admissible in criminal proceedings against the Russian leadership for the crime of aggression before both national courts and an international ad hoc tribunal. In the case, “Ukraine vs. Russia,” the ICJ referred to this UNGA Resolution ES-11/1 in its reasoning for imposing provisional measures to protect the rights of Ukraine “from being subject to the use of force by Russia based upon false allegations of genocide under the Genocide Convention.”

III.5.5 Further UNGA’s emergency sessions on Russian aggression

On 23 March 2022, another emergency session of the General Assembly was convened after a draft resolution (S/2022/231) tabled by Russia in the Security Council on the protection of civilians and unimpeded humanitarian access was approved only by Russia itself and China, with 13 abstentions and no votes against. It was seen by the other Security Council members as an attempt by Russia to justify its attack on Ukraine.

In the vote the following day, on 24 March 2022, draft resolution A/ES-11/L.2 “Humanitarian consequences of aggression against Ukraine” received a large majority of 140 member votes, with five votes against and 38 abstentions. This resolution called for, among other things, an immediate cessation of Russian hostilities against Ukraine, in particular all attacks on civilians and civilian objects, the immediate withdrawal of all armed forces of Russia from Ukraine, a halt to attacks on schools and hospitals; furthermore, the danger of an impending global hunger crisis due to the loss of grain exports from Ukraine was pointed out.

At the emergency session convened for 7 April 2022, draft resolution A/ES-11/L.4, on the suspension of Russia’s membership rights in the UN Human Rights Council (UNHCR), was adopted by a two-thirds majority of 93 votes in favor, 24 against, and 58 abstentions. Russia remained a member of the UNHCR until the scheduled end of its term in 2023; however, it was deprived of all rights, such as the right to attend sessions.

On 3 October 2022, Russia vetoed a draft resolution introduced by the Ukrainian UN Ambassador Serhiy Kyslytsia, condemning the Russian annexation of southern and eastern Ukraine as illegal under international law. Several states then introduced draft resolution A/ES-11/L.5 “Territorial integrity of Ukraine: defending the principles of the Charter of the United Nations,” on 7 October. In the emergency sessions of the General Assembly on 10 and 12 October, this draft was finally adopted as resolution A/RES/ES-11/4 by a large majority.

The attempted annexation had no validity and was not a basis for changing the status of these regions of Ukraine. States and international organizations were asked not to recognize a change of status. Russia was demanded to withdraw its forces immediately, completely, and unconditionally from the territory of Ukraine within its internationally recognized borders.

Serhiy Kyslytsia, Ukraine’s Permanent Representative to the UN since February 2020, had before denounced Russia for having violated international law since 23 September 2022, and that the “pseudo-referenda” in four Ukrainian oblasts posed an existential threat to the UNs and its Charter,

“We are now at a tipping point where the UN will either restore its credibility or ultimately fall in failure.”

The EU representative, Swedish diplomat Olof Skoog, said in his capacity as an observer that the indiscriminate attacks on civilians, cities, and infrastructure were war crimes and that the perpetrators would be held accountable. He urged UN members to vote in favor of the text of the resolution, warning,

If we do not condemn the actions of the Russian Federation in Ukraine today, then we condone similar blatant attacks on any and all of our countries tomorrow.”

Türkiye’s representative, too, declared the referendums illegal and called for an end to the war, calling for negotiations to end hostilities.

In his response, the representative of Russia, Nebenzya, accused NATO of escalating the conflict as part of its plan to undermine Russia. Ukraine, he said, was now a testing ground for Western weapons. Kyiv had covered up many crimes, he said. Nebenzya moved to suspend Rule of Procedure No. 87 to allow the draft resolution to be decided by secret ballot; the motion was defeated.

Another emergency session was convened by Ukraine on 14 November 2022 to debate and vote on draft resolution A/ES-11/L.6 “Furtherance of remedy and reparation for aggression against Ukraine,” tabled by Ukraine and 45 other states. The purpose corresponding resolution A/RES/ES-11/5 was to lay the groundwork for subsequent reparation payments by Russia to Ukraine. The vote resulted in a two-thirds majority of 94 votes in favor, 14 opposed, and 73 abstentions (not taken into account).

III.5.6 The limited powers of the UNGA to create a Tribunal for Putin

In four resolutions,[55] the General Assembly condemned Russia but so far has not decided on “joint action” – certainly not on the use of armed forces to restore international security and peace.

Assembly resolutions are not binding; they merely express the political will of a majority of members. The powers of the UNGA are limited to recommendations. The authority to take enforcement action rests exclusively with the Security Council. However, the UNGA’s practice in the past has demonstrated a way around its limitations: the Assembly can support the exercise of criminal jurisdiction by one or more of its member states.

Since 2000, so-called “hybrid criminal courts” have been formed, based on agreements between the countries involved and the UN. In contrast to criminal courts of the UN, they are not decided by the latter as a coercive measure. They differ from the previous international criminal courts in that they “involve the state of the offense.” In most cases up to now, the initiative came from national governments supported by the UN Secretary-General or also by the Security Council; the sponsor is solely the respective state. In terms of the composition of judges, they are a mixture of national and international courts, and they have both national and international (international law) legal bases.

However, there is no consensus on this matter in the EU: at a conference of EU justice ministers in Stockholm on 27 January 2023, some of them expressed their support for an international tribunal of the political and military leadership of Russia.

German Foreign Minister Annalena Baerbock, in a keynote speech at the Hague Academy of International Law on 16 January 2023 January, had advocated for a so-called “hybrid court,” a special court based on Ukrainian domestic law but staffed by international judges, a second option presented by the European Commission as an alternative to the creation of a special international court. Baerbock received support for her proposal only from France.

III.5.7 The UN UfP resolution – an Assembly mandate for “enforcement action”?

The legitimacy of the Security Council is questioned because of the blatant abuse of the veto power, namely abuse in situations involving a Permanent Member acting in its national interest. The inability of the Security Council to authorize humanitarian intervention in the case of Kosovo updated the question of reforming the UN collective security system.

There are calls from many quarters for the Assembly to make use of the “Uniting for Peace” (UfP) resolution in the case of Russian aggression against Ukraine. However, the authorization of enforcement action by the Assembly under the “Uniting for Peace” resolution is highly unlikely in the case of Russian aggression.

A mandate from the UNGA for the establishment of (armed) peacekeeping forces by member states under the operational control of the UN for peace enforcement is not only legally problematic but, in reality, impossible: no UN member state would provide troops for armed combat against Russian forces operating in Ukraine. A direct military intervention by the West, only NATO would be considered for this, would indeed probably be the beginning of a third world war. In fact, NATO member states deliver arms to Ukraine but avoid by all means being drawn into a direct military confrontation with Russian armed forces.

According to Michael Ramsden,[56] 70 years after the Soviet Union vetoed the UN mandate for a continuation of international military intervention in the Korean War (1950 – 1953), the UNGA no longer generates majorities in favor of the states of the “West,” which is why the UfP resolution was practically not used for a long time. Changes in the international balance of power have made the UfP an unpredictable mechanism, a “double-edged sword.”

Michael Ramsden analyzed in 2016 the legal room for maneuver, which the UNGA has, in order to perform a function analogous to the task of the UNSC in authorizing enforcement action when the Security Council itself is blocked by the veto of a permanent member. However, this analysis was concerned with “humanitarian intervention,” not “crimes of aggression”;[57] however, it is still relevant for the challenge the UNGA faces today.

According to the UN Charter, only the Security Council is empowered to take coercive measures, while the General Assembly can only discuss and recommend. Unlike decisions of the Security Council, the recommendations of the Assembly are not binding.

In this legal situation, can the Assembly authorize (military) humanitarian intervention? In answer to this question, Ramsden refers to the wording of the UfP resolution: the General Assembly

“resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.”

And it goes on to say that if the Assembly is not in session at the time, it can meet in an ESS within 24 hours of being convened.

According to Ramsden, there are two competing interpretations (“theories”) of the UfP resolution:

  • according to one, the UfP is “weak” (weak UfP)
  • according to the other “strong” (strong UfP)

According to the weak UfP theory, the General Assembly cannot authorize coercive action under any circumstances.

According to the strong UfP theory, the meaning of the UN Charter allows the General Assembly to authorize coercive action if the Security Council fails in its responsibility, arguing that the main purpose of the UN Charter is to secure international peace through “collective action.”

Chapter I Purposes and Principles, Article 1 reads as follows.

“The UN shall set itself the following purposes:

  • to maintain international peace and security
  • to take effective collective measures to prevent and remove threats to the peace
  • to suppress acts of aggression and other breaches of the peace
  • to settle or settle by peaceful means, in accordance with the principles of justice and international law, international disputes or situations which might lead to a breach of the peace.”

Article 1 (1) does not specify which body should take these collective measures. According to Ramsden, peace and security are the foundations of the UN Charter as a whole and not the function of the Security Council alone.

On the other hand, Article 24 (1) of the UN Charter reads: “In order to ensure prompt and effective action by the UN, its Members entrust to the Security Council the primary responsibility for the maintenance of international peace and security and recognize that the Security Council, in discharging the responsibilities arising from this responsibility, acts on their behalf.” According to Ramsden, the word “primary responsibility” implies that “secondary responsibility” rests on the General Assembly

“given that it is the only organ within the UN that represents all members (and thus is the collective that conditionally confers power on the Council).” Ramsden cites further references which, in his view, show that “the UN thus provides the Assembly with the power to recommend enforcement measures where the Council is deadlocked.” [58]

According to Article 11 of the UfP resolution, when the Assembly makes a judgment on the need for the use of force, it should forward a recommendation for “enforcement measures” to the Council.[59] The text of the UfP thus confirms the limited role of the Assembly by suggesting that it can only make a recommendation in the case of a “breach of the peace or act of aggression.”

Whether the UNGA is ultimately entitled to even recommend coercive measures, let alone carry them out itself, ultimately depends, in Michael Ramsden’s opinion, on the resolution of the conflict between “attributed powers” and “implied powers.”[60] While the “weak UfP” is supported by the text of the UN Charter, the “strong UfP” is more broadly based on the teleological argument that the UN should effectively ensure and maintain international peace and security.

The doctrine of assigned powers maintains that a UN organ may only perform acts that have been authorized by the members of the UN. Powers not expressly assigned are the result of deliberate omissions that must be respected. In contrast, the doctrine of implied powers allows a UN organ to assume powers that are essential to or further the function of the UN.

While the Security Council has explicit and mandatory powers, a “creative and teleological approach” is needed in shaping the implicit powers of the Assembly. The UN Charter is sufficiently vague to allow for different interpretations regarding the scope of powers and objectives, Ramsden argues.

While the UNGA cannot unilaterally suspend the membership of Russia in the UN Tooltip (Article 5 of the UN Charter); it can block the participation of Russian diplomats in UN bodies. The General Assembly has in the past used the UfP resolution to call on member states to impose diplomatic sanctions and trade embargoes in order to achieve compliance with international law by the offending state. For example, for many years, the credentials of the South African Republic regime were rejected by the General Assembly for “flagrant violation” of the UN Charter.

The UNGA, in cooperation with Ukraine, could set up a tribunal to prosecute the crime of aggression on the basis of the UfP resolution, Ramsden sums up.

[24] Michail Schischkin: Hoffen auf die Stunde null – ein Russland ohne Putin, Gastkommentar (Mikhail Shishkin: Hoping for Zero Hour – a Russia without Putin, Guest Commentary), in Neue Zürcher Zeitung, 12.03.2022; <https://www.nzz.ch/meinung/hoffen-auf-die-stunde-null-ein-russland-ohne-putin-ld.1673592?reduced=true>.
[25] Stefanie Bock: Potenziale und Grenzen. Das Völkerstrafrecht im Ukrainekrieg (Potentials and limits. International Criminal Law in the Ukraine War), in OSTEUROPA, 72. Jg., 1-3 /2022, p. 87-99.
[26] International Court of Justice, Application Instituting Proceedings filed in the Registry of the Courton 26 February 2022. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). Französisch: Court Internationale de Justice, Requête introductive D’Instance enregistrée au Greffe de la Cour le 26 février 2022. Allégations de Génocide au titre de la Convention pour la prevention et la Répression du Crime de Génocide (Ukraine c. Fédération de Russie).<https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf>.
[27] The Statute of the International Court of Justice: A Commentary, 2019, 3. edition. Art. 41, recitel 23. Edited by: Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm, Christian Tomuschat, Oxford Public International Law, Series: Oxford Commentaries on International Law; <https://opil.ouplaw.com/view/10.1093/law/9780198814894.001.0001/law-9780198814894>.
[28] International Court of Justice, 16 March 2022, General List No.182: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Request for the indication of Provisional Measures;<https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf>.Order of 16 March 2022, Request for the indication of provisional measures, Procedure(s): Provisional measures;<https://www.icj-cij.org/en/case/182/orders>.Christian Johann: „Eine kleine Sensation aus Den Haag, Der Ukraine-Krieg vor dem Internationalen Gerichtshof“ ( A small sensation from The Hague, The Ukraine War before the International Court of Justice), in: Verfassungsblog on matters constitutional vom 17. März 2022, <https://verfassungsblog.de/einekleine-sensation-aus-den-haag/>;Andreas Kulick:„Der Internationale Gerichtshof hat mutig entschieden – und dogmatisch überrascht“ ( “The International Court of Justice ruled courageously – and dogmatically surprised”), in: Frankfurter Allgemeine Zeitung / FAZ vom 21. März 2022, <https://www.faz.net/aktuell/einspruch-exklusiv-derinternationale-gerichtshof-hat-mutig-entschieden-und-dogmatisch-ueberrascht-17895693.html>.
[29] Mareike Jung, Julia Weismann: Die Eilentscheidung des Internationalen Gerichtshofs vom 16. März 2022 (Ukraine / Russland); (The Emergency Decision of the International Court of Justice of 16 March 2022 (Ukraine v. Russia).<https://www.bundestag.de/resource/blob/899274/6a63bd8ab894ad6165db6bb1655a4115/Die-Eilentscheidung-des-Internationalen-Gerichtshofs-vom-16-Maerz-2022-Ukraine-Russland-data.pdf>. The explanations in Chapter III.1 are based on their “Infobrief”. (Az.: WD 2 – 034 / 22) vom 24. Mai 2022.
[30] Convention on the Prevention and Punishment of the Crime of Genocide, 9. December 1948, UN Treaty Collection, <https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280027fac>.Flávia Salazar Sousa, Understanding the ICJ’s Order on the Allegations of Genocide in Ukrainian Territory (Ukraine v. Russian Federation), Basic News Blog, 23. März 2022, abrufbar unter: <https://basicint.org/understanding-the-icjs-order-on-the-allegations-of-genocide-in-ukrainian-territory-ukraine-vrussian-federation/>.
[31] Max Planck Institute for Comparative Public Law and International Law, interview with Christian Marxsen on March 16, 2022 : „Putin missbraucht das Völkerrecht“ (Putin abuses international law”), <https://www.mpg.de/18426845/voelkerrecht-ukraine>. Wissenschaftliche Dienste Infobrief WD 2 – 3010 – 034/22, p. 14.
[32] ICJ, Document (with annexes) from Russia setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case, 7. März 2022, Randnummer 13-15, <https://www.icjcij.org/public/files/case-related/182/182-20220307-OTH-01-00-EN.pdf/>.
[33] Luke Moffett: Sanctions for War, Reparations for Peace? 1. April 2022, <https://opiniojuris.org/2022/04/01/sanctions-for-war-reparations-forpeace/>.
[34] A quarter of the approximately 70 000 cases pending before the ECtHR were brought by Russians. With Russia’s withdrawal from the Council of Europe, its citizens can no longer turn to the ECtHR.
[35] According to Art. 33 of the European Convention on Human Rights / ECHR, any party may bring an action before the ECtHR for any alleged violation of the Convention. The European Court of Human Rights / ECtHR may, according to Art. 39 (1) of its Rules of Procedure, at the request of a party or on its own initiative, “designate provisional measures which should be taken in the interests of the parties or of the proper conduct of the proceedings.”
[36] The rights and freedoms of the Convention apply to all persons under the jurisdiction of a Party (Art. 1 ECHR).Quellen: <https://verfassungsblog.de/kann-strasburg-den-krieg-zahmen/>.<https://verfassungsblog.de/egmr-zerrieben-im-konflikt-russland-ukraine/>.
[37] Claus Kreß has held the Chair of German and International Criminal Law and Director of the Institute for Criminal Law and Criminal Procedure at the University of Cologne since 2004 and has been Director of the “Institute for International Peace and Security Law” since 2012.
[38] Deutschlandfunk: International Criminal Court. International law expert: The issue is Russia’s suspicion of numerous war crimes; Claus Kreß in conversation with Friedbert Meurer, 04.03.2022;<https://www.deutschlandfunk.de/interview-claus-kress-voelkerrechtler-zu-kriegsverbrechen-dlf-e786f863-100.html>. <https://www.deutschlandfunk.de/strafgerichtshof-ermittlungen-kriegsverbrechen-100.html>.
[39] The Office of the United Nations High Commissioner for Human Rights, 03 January 2022. The “Berkeley Protocol” on Digital Open Source Investigations identifies international standards for conducting online investigations into alleged violations of international criminal law, international humanitarian law, and human rights law.<https://www.ohchr.org/en/publications/policy-and-methodological-publications/berkeley-protocol-digital-open-source>.
[40] The activation of the ICC’s jurisdiction over crimes of aggression took place on 17 July 2018 – following a resolution to that effect by States Parties on 15 December 2017.
[41] Ilona Khmeleva: „Russlands Verbrechen der Aggression kann nicht ignoriert werden“ (Russia’s crime of aggression cannot be ignored), in: „Ukraine verstehen“ (Zentrum Liberale Moderne), 5. Dezember 2022; <https://ukraineverstehen.de/russlands-verbrechen-der-aggression-kann-nicht-ignoriert-werden-sondertribunal-ukraine/>. Ilona Khmeleva. University of Toronto – Munk School of Global Affairs & Public Policy.
[42] Ibid.
[43] Resolution 3314 (XXIX) was adopted by the UNGA on 14 December 1974 as a non-binding recommendation to the UNSC on the definition of the crime of aggression. See also Elizabeth Wilmshurst in der Audiovisual Library of International Law: Definition of Aggression, General Assembly resolution 3314 (XXIX), 14 December 1974; <https://legal.un.org/avl/ha/da/da.html>. Elizabeth Wilmhurst is Professor of International Law at University College London and Fellow at the Royal Institute of International Affairs, Chatham House.
[44] Among the signatories are: Gordon Brown, former prime minister of Great Britain;- Nicolas Bratza, former President of the European Court of Human Rights / European Court of Human Rights.- Angelika Nußberger, Universität Köln; former Vice-President of the European Court of Human Rights.
[45] Benjamin Berell Ferencz (born 1920) was “chief prosecutor for the United States Army” in the “Einsatzgruppen Trial” (September 1947 – April 1948), the ninth of the twelve successor trials to the main war crimes trial before the International Military Tribunal / IMT; the Einsatzgruppen trial took place before an American military tribunal (Nuremberg Military Tribunal / NMT).
[46] Philippe Sands QC, Professor at University College London, Barrister Matrix Chambers; author of the book “East West Street: On the Origins of Genocide and Crimes Against Humanity.”
[47] Ursula von der Leyen, President of the European Commission, proposed on Twitter on 30 November 2022 “the establishment of a Special Committee supported by the United Nations to investigate and prosecute Russia’s breaches of aggression.”
[48] Christian Tomuschat (Professor emeritus, Humboldt University, Berlin): Uniting for Peace. General Assembly resolution 377 (V), New York, 3 November 1950. The Audiovisual Library of International Law; <https://legal.un.org/avl/ha/ufp/ufp.html>.
[50] The other three “core crimes” committed by Russian forces in Ukraine can be tried at the ICC, which has no jurisdiction over the crime of Russian aggression.
[51] Claus Kreß, holder of the Chair of German and International Criminal Law and Director of the Institute for Criminal Law and Criminal Procedure Law at the University of Cologne; Director of the newly founded “Institute for International Peace and Security Law.”
[52] Published on his personal accounts on Twitter and Telegram; Reuters: Star rising in Kremlin, Russia’s Medvedev predicts war in West, December 27, 2022; <https://www.reuters.com/world/europe/star-rising-kremlin-russias-medvedev-predicts-war-west-2022-12-27/>. Medvedev formulates Russia’s war against Ukraine in religious, apocalyptic terms and refers to Ukrainians as “cockroaches.” <https://rg.ru>, 2022/11/20; <https://rubryka.com/2022/11/20/nova-zayava-medvedyeva-kyyiv-rosijske-misto-i-jogo-potribno-povertaty/>.
[54] The UN Press Release, Eleventh Emergency Special Session, 2 March 2022; <https://press.un.org/en/2022/ga12407.doc.htm>. UNGA Res. ES‐11/1 (2022): <https://documents‐dds‐ny.un.org/doc/UNDOC/LTD/N22/272/27/PDF/N2227227.pdf?OPENELEMENT><https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/293/36/PDF/N2229336.pdf?OpenElement>.
[55] In total, the following resolutions were adopted in the emergency sessions of the UN General Assembly on Ukraine:- Resolution A/RES/ES-11/1, 02.03.2022; Aggression against Ukraine. In total, the following resolutions were adopted at the UN General Assembly emergency sessions on Ukraine: 141 states voted in favour. Only Belarus, Eritrea, North Korea, Russia and Syria voted “no”. A further 35 states abstained.- Resolution A/RES/ES-11/2, 24.03.2022; Humanitarian consequences of the aggression against Ukraine (Humanitarian consequences of the aggression against Ukraine). It received a majority of 140 votes in favour, with 5 votes against, 38 abstentions, and 10 representatives of Member States not present.- Resolution A/RES/ES-11/3, 07.04.2022; Suspension of the rights of membership of the Russian Federation in the Human Rights Council (Suspension of the Russian Federation’s membership rights in the Human Rights Council). The resolution was adopted by a two-thirds majority of 93 votes, with 24 votes against and 58 abstentions.- Resolution A/RES/ES-11/4;12.10.2022; Territorial integrity of Ukraine: defending the principles of the UN Charter (Territorial integrity of Ukraine: defense of the principles of the United Nations Charter). It was adopted by an overwhelming majority of 143 votes to 5, with 35 abstentions). Resolution A/RES/ES-11/5, 15.11.2022; Furtherance of remedy and reparation for aggression against Ukraine. The resolution was adopted with a two-thirds majority of 94 votes in favor, 14 against, and 73 abstentions (not taken into account).
[56] See also: Michael Ramsden, Uniting for Peace, the Emergency Special Session on Ukraine, Harvard International Law Journal Online (2022). Professor Michael Ramsden is the Director of the Research Postgraduate Programme, The Chinese University of Hong Kong. Member of the Advisory Board of the Universal Rights Group (Geneva and New York) and the International Rule of Law Initiative (Ottawa).
[57] Michael Ramsden: “Uniting for Peace” and Humanitarian Intervention: The Authorising Function of the UN General Assembly, Washington International Law Journal, Volume 25 Number 2, 2016; <https://digitalcommons.law.uw.edu/wilj/vol25/iss2/4>.
[60] The “implied powers doctrine” is a teleological rule of interpretation originating in US law, according to which unwritten powers in international treaties must also be taken into account. The European Court of Justice (ECJ) also applies this doctrine.

Edited by: Kate Ryabchiy
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