This Monday, Ukraine will address the International Court of Justice in The Hague. The UN tribunal in charge of resolving disputes between the two countries is examining the possibility of an order requested by Ukraine against Russia under the UN Convention against Genocide.
Kyiv wants UN judges to characterize the Russian attack as genocide and at the same time reject Moscow’s claim that Ukraine was committing genocide against the Russian minority in the east of the country.
On Tuesday, Kremlin lawyers will categorically reject the case as Russia denies jurisdiction over The Hague tribunal. Moscow will argue that as long as there is no genocide committed by Russia, there is no case and therefore no court that has jurisdiction.
Jurisdiction issue
The difficulty of any case in the International Court of Justice is that the plaintiff and the defendant state must recognize the jurisdiction of the court.
Russia – and the United States – have never recognized the UN tribunal in general, but only on a case-by-case basis, Professor Kai Ambos, an expert in international criminal law from Göttingen, told DW.
Therefore, it is very unlikely that this week’s hearing will lead to tangible results for Ukraine. However, the trial draws attention to international tribunals and how they will deal with Vladimir Putin’s war.
A second test
There is also a second trial in another international tribunal under way: The prosecutor of the International Criminal Court has already begun investigations into whether the Russian president or other leading figures in the Kremlin are responsible for war crimes or crimes against humanity in Ukraine.
The International Criminal Court is in charge of enforcing international law and determining the guilt of individuals. Unlike the International Court of Justice, it does not deal with states, but rather with individual defendants.
“I am pleased that there is a reasonable basis for believing that both alleged war crimes and crimes against humanity have been committed in Ukraine,” said Karim Khan, the court’s attorney general in The Hague. He instructed his prosecutors to investigate and obtain evidence. The first teams are already in Ukraine, Khan said last week.
“It’s great,” Abos told DW. “Since the establishment of the Criminal Court, we have never had a prosecutor react so quickly without the involvement of the UN Security Council.”
Wide international support
Researcher Khan’s research adds even more weight to the fact that 38 countries, led by the United Kingdom, support the case. This means that a speedy and extensive investigation is possible, without the need for an examination by a so-called “judicial department” with three judges, according to British Foreign Secretary Liz Truce.
“There is an urgent need for an investigation by the ICC into Russia’s barbaric acts and it is right for those responsible to be held accountable,” Tras said in London. Apart from Germany, the supporting countries include almost all EU members, but also Canada, New Zealand and Costa Rica.
Professor G Γttingen Ambos believes it is important for many countries to show solidarity with the court, as it will give it more legitimacy. One problem, however, is that Russia has not signed the treaty on which the court is based, the Rome Statute.
Like China, Russia is an “enemy” of the court, Abu explains. “Only the signatory states are obliged to cooperate. This does not apply to Russia.” Ukraine has also not signed, but has stated that it will accept the decision of the judges in The Hague.
Putin as a defendant?
Will Russian President Vladimir Putin ever be in the dock if the trial goes ahead? “It is not entirely out of the question, but it is unlikely that Mr Putin will have to appear in court at some point,” said Kay Abos.
Leaders like Putin usually stay in power until they die and therefore will not be extradited. One way would be if Putin was overthrown in Russia and a new government could extradite him to The Hague.
This happened to former Sudanese President Omar al-Bashir, who was ousted by the country’s new government last year. “We can not predict the course of history. You should be very optimistic,” Abos told DW.
More lawsuits for Ukraine
During a trial, the criminal court could issue an international arrest warrant for Putin and other alleged perpetrators. They could then be arrested while traveling to States that have signed the Court.
Individual state prosecutors are also likely to launch their own investigations, as happened in Lithuania on Thursday. Such procedures could be done in Germany as well. In January, a Syrian doctor was convicted of crimes against humanity in the Syrian war in a trial in Germany.
Such proceedings based on the “principle of universal law” are generally possible against Russians involved in the war against Ukraine. Anyone can file a criminal complaint with the Federal Prosecutor’s Office.
Proceedings could also be opened before the European Court of Human Rights of the Council of Europe in Strasbourg. In the case of the Yugoslav wars, the UN set up a special court, a special court. In the case of Russia, however, this could fail because of Moscow’s veto power in the UN Security Council.
This article was originally published in German
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