German Foreign Minister Annalena Baerbock on Jan. 16 called for an international tribunal to prosecute Russian officials for war crimes and the crime of aggression in the ongoing Russo-Ukrainian war. Baerbock delivered the remarks in a speech entitled "Strengthening International Law in Times of Crisis" at the Hague Academy of International Law.

Making her case for the tribunal, Baerbock said loopholes in international criminal law allow Russia to escape the jurisdiction of the International Criminal Court (ICC). Baerbock was referring to the 2010 Amendments to the Rome Statute of the International Criminal Court, known as the "Kampala Amendments." These Amendments brought the crime of aggression under the ICC's jurisdiction, along with crimes of genocide, crimes against humanity, and war crimes. However, the Amendments also limited the ICC's power to hear these cases.

First, the ICC cannot investigate a crime of aggression in war on its own accord. The UN Security Council must refer such a case to the ICC. This provision would make it practically impossible to prosecute Russia. Since Russia is a permanent member of the Security Council, it can veto an ICC referral.

Second, the ICC cannot exercise its jurisdiction in crimes of aggression unless both parties are signatories of the Rome Statute. Neither Moscow nor Kyiv are parties to the Rome Statute.

Baerbock suggested a compromise to prosecute Russian officials: a special tribunal that would follow Ukrainian criminal law with an "international component." Baerbock proposed an international location for the tribunal, financial support from third countries, and for the tribunal to consist of international prosecutors and judges.

Baerbock also proposed amending the Rome Statute to allow the ICC to investigate crimes of aggression where either state is a party, or has recognized the ICC's jurisdiction. 

The speech additionally called for Russia to be held accountable for "killing" Article 2(4) of the UN Charter, which calls on members to respect the "sovereignty, territorial integrity and political independence" of other states.

From Jurist, Jan. 17. Used with permission.

Notes: Baerbock's speech came one day after a missile strike on an apartment building in Dnipro left at least 45 dead. (Jurist, EuroNews)

Both the International Criminal Court and UN Human Rights Council have opened investigations into possible war crimes in Ukraine. The ICC investigation is based on Ukraine's recognition of the Court's jurisdiction.