The Russian war of aggression against Ukraine is a breach of international law the likes of which the world has not seen in such brutality for decades, and which could not be more clearly stated in any textbook on international criminal law. Nevertheless, the International Criminal Court (ICC) cannot currently prosecute Russian President Vladimir Putin and his henchmen for the crime of aggressive war under international law.
This is prevented by hurdles set out in the court’s founding treaty, the Rome Statute. A reform is therefore needed.
Since 2018, the International Criminal Court has not only been able to prosecute war crimes, crimes against humanity and genocide, but also the crime of aggression, i.e. waging a war of aggression. The Russian war of aggression is a clear violation of the prohibition of violence, one of the most important principles of international law of the United Nations.
But precisely this obvious crime in international law committed by Putin cannot be prosecuted by the tribunal in The Hague at the moment, since Russia is not a signatory state to the Rome Statute. A resolution in the UN Security Council would therefore be necessary in which the ICC would be instructed to start investigations. But that will never happen because Russia has veto rights in the Security Council.
This is a clear mandate for the international community to take action. We must not tolerate a head of state like Vladimir Putin launching a war of aggression that violates international law. That he can reduce a country to rubble, have innocent civilians murdered and can simply evade international jurisdiction because his country does not accede to the Rome Statute or, as a UN veto power in the Security Council, can block an order to start investigations against itself . Given the untold suffering that Putin has inflicted on Ukraine, such a free pass is absolutely unacceptable.
We must enable the ICC to investigate the crime of aggression even when the state concerned is not a signatory to the ICC Statute. To do this, the Rome Statute, which came into force on July 1, 20 years ago, must be changed.
There is no question that that would be a tour de force by the international community that would require staying power. At the same time, however, it would also be a milestone in the further development of international criminal law. Russia’s war of aggression against Ukraine, which has been raging for more than four months, shows that such an initiative is necessary.
This would have a worldwide signal effect, even beyond the Russian war of aggression. As an international community, we would make it clear that those responsible for aggression cannot simply protect themselves from the ICC by not signing the Rome Statute and being protected by a UN veto power.
Because unlike war crimes, for example, the prosecution of the crime of aggression is not directed against the soldiers in the war zone, but against those people who control and direct the political or military activities of a state, i.e. the leading elite of a state. In the case of the Russian war of aggression, directly against Vladimir Putin and every member of his political leadership.
Germany has always played a special role in international criminal law. Our country played a decisive role in the establishment of the ICC in 2002 and has been committed to a strong, functional and independent ICC ever since.
At the first review conference on the Rome Statute in Kampala in June 2010, the Federal Republic of Germany made a significant effort to ensure that there was agreement at all on the definition of the crime of aggression.
In addition, Germany is one of the largest contributors to the ICC. The Ukraine war shows in a dramatic way that further development of the ICC and international criminal law is necessary. Germany should stand up for this and once again lead the way as a pioneer.
It is clear that such a reform of international criminal law is a lengthy affair and requires a great deal of preparation, diplomatic skill and patience. A total of at least 30 contracting states would have to accept and ratify the amendments. In the case of Vladimir Putin and members of the Russian leadership, this change may come too late.
As a kind of interim solution, a special tribunal could be considered for the Russian attack on Ukraine. However, this should not and must not be a substitute for striving for a long-term reform of the ICC Statute. Because in a world where peace unfortunately cannot be taken for granted, it is important to be prepared for future events. We should therefore take the anniversary of the Rome Statute as an opportunity to renew our pioneering role in international criminal law and initiate necessary reforms.