Speech by Foreign Minister Annalena Baerbock at the Ministerial Side-Event “The ICC and the Crime of Aggression: In Defense of the UN Charter”

17.07.2023 - Speech

In 1998, UN Secretary-General Kofi Annan opened the conference establishing the Rome Statute by telling the delegates:

“I hope you will feel, at every moment, that the eyes of the victims of the past crimes, and of the potential victims of future ones, are fixed firmly upon us.”

He made a crucial point: justice depends on what we as politicians, diplomats, lawyers do – or don’t do.

It falls on us to adapt international law to new realities: to protect the most vulnerable and to build a more peaceful world.

Kofi Annan said those words 25 years ago – but they could not be any truer today.

Russia’s war of aggression against Ukraine has led us to a turning point where I believe we all have a responsibility to act by advancing international law.

Russia, a permanent member of the UN Security Council, is annexing its neighbour’s territory, trying to subdue it to imperial domination.

That is unprecedented, it is something we could not imagine. But it’s reality.

And at the same time, Russia's war is showing us that there is a glaring gap in international law for the “crime of crimes” – as the foreign minister of Liechtenstein underlined – for it is the crime of aggression that makes so many other crimes possible in the first place.

Or, to put it bluntly, we are seeing that in our international law there is inconsistency.

The central pillar of the UN Charter is the non-use of force.

But bringing to justice those who violate this principle by waging wars of aggression is particularly difficult.

The International Criminal Court can only try the “crime of all crimes” when both states concerned have ratified the Kampala Amendment, or when the UN Security Council refers a case to the ICC.

For this reason, there is currently no way to prosecute the Russian leadership for its war – since Russia, as we all know, is not a party to the Rome Statute. And of course it would block a referral by the Security Council.

I'm convinced that we must not accept this situation.

And I'm very happy that we are here today to discuss exactly this point. Because if we allow ourselves to – I quote Kofi Annan again – “feel, at every moment, that the eyes of the victims of the past crimes, and of the potential victims of future ones, are fixed firmly upon us”, we have to recognise that we are once again at a turning point in history and in international law.

This time it's up to us. And it would be irresponsible for us to just look on. We have a responsibility to act, like we did 25 years ago.

That is why in my speech at The Hague Academy of International Law in January and also this morning at the celebration for the Rome Statute, I argued for closing the gap in international criminal law regarding the crime of aggression.

For Russia's war against Ukraine – and for any future war of aggression, wherever it might occur around the world.

Back in Rome, it was a proposal by the Non-Aligned Movement that resulted in the last minute compromise which brought the crime of aggression into the jurisdiction of the Court – as we know, against much resistance.

When we activated the Court’s jurisdiction in 2017, among others South Africa, Samoa and Portugal are remembered for making crucial contributions to this breakthrough.

And I believe that now, faced with this brutal war of aggression by a permanent member of the Security Council, we are called upon to complete what Kampala began.

I know that many states, including some of Germany's close partners, did not support the Kampala amendments in the past, or have not felt themselves to be in a position to ratify them.

And I see – and I think we have to be clear on that – that they have legitimate concerns.

But I would also say that, these days, we have to look at how often international formats, for example, the G7 and other international groupings, have referred to the ICC since the start of Russia's war – differently than before.

I therefore believe we are at a watershed moment where we as the international community have to take a fresh look at our positions.

Therefore, I as German foreign minister would like to invite all those who believe we can shape the future of international criminal law to review the current state of the ICC and to deepen our discussion on reforming the Rome Statute in the light of Russia's war – including all the other initiatives put forward by countries that were very close to the ICC in the past, like our good friends from South Africa, but also the many other proposals we heard in the morning.

As we all know, especially the lawyers in this room, in theory this is very easy. Technically, we would simply have to delete a few words in Article 15bis para 5 of the Rome Statute to expand the ICC’s jurisdiction regarding the crime of aggression so that it covers nationals of states that are not party to the statute. And this is not revolutionary, because this is the case for the other three core crimes: genocide, crimes against humanity and war crimes.

But as a politician, and as those who have worked in the ICC world for some time, we all know that finding a possible solution in theory is totally different from actually changing a Statute.

However, we should also ask: if not now, then when? And if not us, then who?

So I would like to propose that we use the review process until 2025 to do precisely this.

On the other hand, we know that reform of the Statute will not happen overnight – even if we are successful by 2025.

That is why we are pursuing a second track – like many others. We need a solution for the ongoing war of aggression in Ukraine – because we cannot let impunity prevail here and now.

For this reason, Germany is backing in parallel an internationalised tribunal for the crime of aggression against Ukraine, as endorsed, for example, by the G7.

It would be designed for the situation in Ukraine and based on the existing jurisdiction of Ukraine. And it would be complementary to the ICC.

The internationalised tribunal would build on the work of the International Centre for the Prosecution of the Crime of Aggression against Ukraine, which just has been founded in The Hague.

And yes – because we are discussing here among experts – it's true: As legally binding principles of international law provide for the personal immunity of all sitting heads of state, heads of government and foreign ministers, this tribunal could not prosecute Russian President Putin, Prime Minister Mishustin or Foreign Minister Lavrov as long as they remain in office.

However, it could immediately begin to investigate them and thus prepare for a possible trial once they leave office.

I know that others are therefore instead – as we have heard from my dear friend Dominique – suggesting an international tribunal created by the General Assembly.

And as we are all united here in this room by the same goal, I would like to go into the details of the different aspects of these two proposals.

First of all, I believe that it's doubtful whether this other form of tribunal set up by the General Assembly could overcome the troika immunity.

And I want to be frank and open: At first sight, an international tribunal also sounded good to me, especially after we saw this big majority during voting in the General Assembly. But after looking more closely at the judicial details and especially the political realities, I truly believe this will not fly.

My point here is: we cannot merely wish for something – we also need to make sure it really works. We have discussed this a couple of times – also via the newspapers.

I want to therefore be very open here. I think some things could be thought of in theory, but if you really consider what they mean in practice they might look different.

The Rome Statute, for example, is very clear: in Article 13 para b, it acknowledges that the Security Council can in a binding manner refer a situation to the ICC. The Security Council – and there is no word about another institution.

I quote: “The Court may exercise its jurisdiction .. if .. a situation … is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations” – end of quote.

The UN General Assembly has no such coercive powers. I know that some refer to previous tribunals – but again, if you look closely at these tribunals, they either covered internal conflicts different from the situation today – and/or were established by the UN Security Council.

And even if we assume just for a moment that the General Assembly had the power to step in for the Security Council and create a tribunal or give the UN Secretary-General the power to negotiate one on its behalf – again, looking at the realities, I do not see where the vast majority needed to provide such a tribunal with the necessary legitimacy would come from.

Yes, we all remember that more than 140 states condemned Russia's war of aggression in the General Assembly. But again, we have to look at the details. Yes, an overwhelming majority of states voted in support of Ukraine in the General Assembly – but when it came to taking concrete steps against Russia, for example in the Human Rights Council, the number of countries coming together was a lot smaller.

Moreover, if we were able to bring together this overwhelming majority in the General Assembly, why wouldn't we then simply go ahead and change – with these 140 states – the Rome Statute with this same majority?

And this is the question many have asked me around the world. Is this really about the Rome Statute – or is it just about a single case? And I at least cannot simply wish this question away.

We need to be aware of the very diverse interests at play – this is the real world. Some states might indeed be open to a special tribunal regarding Russia, but would not so much welcome global jurisdiction against the crime of aggression.

But such a tribunal, in turn, might – understandably, in my point of view – raise suspicions in other states that this is not about closing accountability gaps, but rather about specific countries.

So we would lose all of them. That is why my big worry is that good intentions – setting up a tribunal by the General Assembly – could in practice put in jeopardy the international unity manifested by more than 140 states condemning the Russian war.

And I'm also afraid that it would backfire against what we started 25 years ago with the Rome Statute: creating the ICC as a permanent, independent, universally accessible instrument of global criminal justice.

In conclusion, I'm afraid that creating an international special tribunal via the General Assembly is a charming idea, but it does not fly in reality.

Therefore, and also as food for thought for our debates, I would really call for joining hands and using this moment to strengthen the ICC as such.

Let us redouble our efforts to bring more countries into the ICC family.

Those who have not done so should join the Rome Statute or ratify the Kampala Amendment.

Ukraine is one of them. And to my dear friends of Ukraine – I don’t’ see Dmytro Kuleba here in the room, but we have discussed it over and over again in the last weeks and months: I know how sensitive this question is. Again, this is not theory. This is brutal reality.

Therefore, I can imagine that some Ukrainian soldiers are worried: What would this mean for us – ratification now in this moment?

Maybe they would even think – and this is why this also concerns us – that we as an international community do not trust them, or that our governments or their government does not have their backs.

But from the bottom of my heart, I believe the opposite is true.

Ratification at this moment would make clear again: Ukraine is exercising its right to self-defence as enshrined in Article 51 of the UN Charter. It is defending international law, including the Geneva Convention, protecting civilians in wartime.

It is not Ukrainian soldiers, but rather the Russian army that is fighting a war of aggression, flouting international law by directly targeting civilians, roads, ports, even schools and hospitals – every day.

And in addition, I would also like to say this: the Rome Statute does not aim at rank and file soldiers. If they commit crimes in Ukraine, they can be tried in national courts.

The Statute is especially about accountability for political and military leaders who wilfully give orders disregarding international law.

That's why the ICC family is the right place for Ukraine. It would make Ukraine stronger – and Ukraine would make the ICC stronger.

Ladies and gentlemen, colleagues and friends.

25 years ago, the Rome Statute marked a historic moment.

I quote: We “feel, at every moment, that the eyes of the victims of the past crimes, and of the potential victims of future ones, are fixed firmly upon us.”

Today, we feel them again.

Let's not fail them.

Thank you.


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