The Russian attack on Ukraine is a clear infringement of one of the most basic principles in international law of the United Nations: the prohibition of violence. In addition, Russian troops in Ukraine are repeatedly acting in contravention of the rules of humanitarian international law. But what options are available to bring those responsible to court? In this interview, Christian Marxsen from the Max Planck Institute for Comparative Public Law and International Law explains which courts are responsible and what the impact of a guilty verdict over the perpetrators might be.
Dr. Marxsen, who can call Putin to account legally for his offensive war, which is after all prohibited in international law?
Christian Marxsen: In principle, the first body that would be involved would be the UN Security Council, which would be responsible for condemning Russia’s behaviour. As we know, this won’t happen, since Russia has the right of veto there. Instead, the UN General Assembly has condemned the war being pursued by Russia with a large majority of 141 states. This carries great importance for the way all of Russia’s actions are perceived by the international community. This makes it unequivocally clear that this war is in contravention of international law.
What consequences will this have?
No direct ones. Only the Security Council can announce sanctions; the General Assembly cannot. The condemnation is therefore merely symbolic. While it is important, it does not have any direct consequences.
Christian Marxsen is a Max Planck Research Group Leader at the Max Planck Institute for Comparative Public Law and International Law. His main areas of interest include the prohibition of violence under international law and legal issues arising in the context of international armed conflicts.
© Max Planck Institute for Comparative Public Law and International Law
Many people would love to see Putin appear before a court of law one day. Which court would be responsible for such a war crimes trial?
In principle, this could be held at the International Criminal Court, which has also begun to investigate the situation in Ukraine. At the moment, it is unlikely that Putin will face criminal proceedings, since the International Criminal Court does not have access to Putin. Even so, the fact that they are investigating is of importance in itself.
However, Russia and Ukraine are not signatories to the Rome Statute, which forms the basis for the International Criminal Court.
Yes, that’s true. However, Ukraine has agreed to be subject to the legal findings of this court. In other words, the International Criminal Court is responsible for actions taken on the territory of Ukraine since 2013. If, therefore, Russian troops commit war crimes in Ukraine, this can be the subject of investigation. Equally, genocide and crimes against humanity can also be investigated. However, the war of aggression, in other words, the crime of aggression, cannot be the subject of an investigation, since Ukraine’s status does not meet the requirements for this.
In the interim, Ukraine itself has attempted to initiate proceedings before the UN Tribunal, i.e. the International Court of Justice. What’s that all about?
Here, Ukraine and Russia are in dispute over the application of the Genocide Convention. This is a contract in international law that was also signed by Russia and Ukraine. In these proceedings, Ukraine wishes it to be confirmed that when it attacked Ukraine, Russia was wrong claiming that Ukraine was committing genocide against the population in East Ukraine. Legally speaking, this is a highly innovative approach, and we will see whether the court goes along with it.
What would the consequences be if Ukraine succeeded with these proceedings, and the court were to determine that Putin’s justification were not true?
This, too, would be just a symbolic success at first. The court has no means to enforce the implementation of its judgement. However, it would again be clear that Russia’s argumentation fails to stand up against international law.
Is it not strange that Putin is attempting to cite international law as justification for his actions, even when he is in infringement of it?
Here, he is not entirely clear, perhaps luckily so. First of all, Putin’s language reveals a cynical disregard for international law, since he cites reasons for his aggression which are quite obviously not true. In so doing, he is abusing international law. At the same time, he clearly aims to sell the invasion to his own people as something that is in line with international norms.
Russia has just announced that it wishes to exit the Council of Europe. Shortly afterwards, the Council of Europe withdrew the membership of Russia with immediate effect. This means that Russia is now excluded from the European Court of Human Rights. What consequences will this have?
To date, Russia was also bound by the European Convention on Human Rights in its current conflict in Ukraine. However, the European Court of Human Rights had severely limited its responsibility with regard to ongoing armed conflicts – most recently with regard to Russia’s war against Georgia. Even so, membership would have meant a certain amount of leverage in order to put pressure on Russia from a human rights perspective if this was warranted by its behaviour, and to bring the country before an international court. This option is no longer available now that Russia has been excluded from the Council of Europe.
However, Russia has already ignored judgements from the European Court of Human Rights in the past.
Yes, that’s true. That’s why proceedings such as these should not just be judged with respect to the implementation of judgements. Instead, it should be noted that through these proceedings, infringements of human rights can be examined and ultimately made public.
Sabine Leutheusser-Schnarrenberger and Gerhart Baum from the FDP have submitted a personal criminal complaint against Putin. Does something like this have any chance of succeeding?
According to the “Völkerstrafgesetzbuch”, or international criminal code, Germany as a non-involved state can also pursue infringements such as genocide, war crimes and crimes against humanity. However, Putin cannot currently be put before a German court, since as a head of state he enjoys immunity. However, such proceedings could be initiated against other politicians or members of the military who are involved in the conflict.
Overall, how great is the chance that Putin and the Russian leadership might one day be made to answer for this war before an international court?
In my view, the fact should not be ignored that Russia is already being made to pay for the war as a result of the very severe sanctions. Currently, this is the most effective tool with which to stop the aggressor. I do not think it is very likely that Putin will go to trial at any point in the future. But perhaps that’s not the right attitude. At the moment, the most that can be done is to prepare for such proceedings by recording facts. This will be important when hopefully there is peace. After all, for this to happen, those who are responsible for the war need to understand that they will be subject to investigations outside Russia under international law. I admit that this is a long-term prospect. But it is a very important one.
Interview: Benno Stieber
International courts that are responsible for international law
The International Court of Justice
The International Court of Justice is the most important court of the United Nations and is based in Den Haag. The court deals exclusively with disputes between states. Furthermore, the Court produces reports on issues relating to international law for UN committees and UN organizations.
The International Criminal Court
The International Criminal Court (ICC) is also based in Den Haag, but is independent from the UNO. Its area of responsibility cover the core crimes in international criminal law: genocide, crimes against humanity, the crime of aggression and war crimes. The ICC can only issue judgements regarding individuals, not states. However, important countries such as Russia, the US and China do not recognize the Court.
The European Court of Human Rights
The European Court of Human Rights (ECHR) belongs to the Council of Europe, a European organization with 46 member states. It is based in Strasbourg. The basis for the jurisdiction of the ECHR is the European Convention on Human Rights. Natural persons or legal entities can submit a complaint against a member state before the Court if they regard their rights as having been infringed.
