Thank you very much for inviting me to speak to you here at the Hague Academy of International Law, which is celebrating its 100th anniversary in this special year.
It’s also very special for me personally to be able to speak at this most remarkable Academy.
“Who killed Article 2 (4) of the UN Charter?”
The expert in international law Thomas Martin Franck, who also taught here at this Academy, asked this rhetorical question. That was in 1970.
And today? Today we are witnessing how Russia is attacking and violating this central principle of the UN Charter, the prohibition of the use of force, in a brutal way – with its war of aggression against Ukraine. So is Article 2 (4) dead? Have we all failed, those of us who stand by the Charter of the United Nations, by our common treaty from 1945 and our mandate to “save succeeding generations from the scourge of war”?
Because this Charter has not stopped Russia’s President from waging a brutal war of aggression against Ukraine? Because Article 2 (4) has not stopped Russia from bringing terrible suffering to our Ukrainian neighbours and, given the terrible consequences of this war, not only to Ukraine, not only to Europe, but also far beyond?
Is this war also a declaration of the bankruptcy of international law at the end of the day? I don’t think so at all.
I believe that this war shows us the opposite.
Firstly, it shows why we need international law more urgently than ever before. And, secondly, that we need to apply it especially now, but also that we have to strengthen it accordingly.
Accountability is what matters. And precisely for that crime of crimes that makes so many other crimes possible in the first place – the crime of aggression, the crime committed against the most precious commodity that we have, namely our freedom. No one in the 21st century must be allowed to wage a war of aggression and go unpunished.
We must therefore continue to develop international law so that it reflects the realities of the 21st century.
Ladies and gentlemen,
I believe that, here in this room full of international law experts, I don’t have to do much to persuade you about my first point, namely the question as to why international law is so indispensable, for our peace and for an international order that is based on rules and not on the law of the strong. I would like nevertheless to say a couple of things about this. After all, it’s clear that in a world order based only on power, those who are the strongest and who use their power most ruthlessly will prevail. This means that no smaller country would be able to sleep soundly at night. And it goes without saying that this is the case not only here in Europe, but anywhere in the world where a state must live in fear that a bigger or stronger neighbour might attack it while the world simply looks on. However, international law stipulates that all states are sovereign and equal. It protects the weak against the tyranny of the strong, whether in the north, south, east or west of our common world. What is more, international law equips states with mechanisms for resolving conflicts in the world peacefully. International law is thus a “gentle civiliser of nations”, as the Finnish international law expert Martti Koskenniemi puts it.
Justice gives rise to peace.
And the fact that many countries actually avail themselves of this – the fact that international law isn’t dead – is reflected by the enormous increase in the number of cases brought before international courts in recent decades. Sixteen contentious cases are currently pending before the International Court of Justice with parties that hail from all corners of this world and pertaining to a broad legal spectrum – from questions of land and maritime borders and international waterways to suspected breaches of treaties seeking to eliminate racial discrimination.
“Our docket is full” – that’s how ICJ President Joan Donoghue pithily described the situation before the UN General Assembly last autumn. And that’s a good thing, too.
After all, international law lays down guard rails and limits to foreign policy. The prohibition of the use of force is our political touchstone in this regard. But when we talk about the limits of state action, this takes us back to Franck’s question – and the purported death of Article 2 (4). After all, what use is the best principle if it isn’t effectively observed?
I believe that we have to be honest and say quite clearly that we as the international community will not be able to prevent countries from violating the principles of international law. Just as we as states, as national governments, will not be able to prevent people from committing offences in our countries. Nobody in Germany, for example, would even dream of questioning the wisdom of paragraph 211 of the Criminal Code, which makes murder a punishable offence – because murders keep on happening.
As we know, the purpose of criminal law is, if its definition is anything to go by, to protect certain particularly important legal interests and, by punishing offenders in the event of a violation of the law, to maintain peace guaranteed by law and thus the common good.
What really matters, in criminal and international law alike, is not whether a legally protected interest has been violated, but rather how we respond to a violation of rules and principles and how resolutely and united we do so together.
This is why it was so important that we demonstrated precisely this determination in recent months since 24 February as an international community – when Ukraine and thus Article 2 (4) of the UN Charter was attacked. By being vocal in our condemnation of Russia’s illegal war against Ukraine. By imposing tough sanctions, together with our partners and allies. By strengthening Ukraine’s right of self-defence, as laid down in Article 51 of the UN Charter. And by continuing to strengthen our Ukrainian neighbours and friends – with humanitarian assistance, financially, and also with weapons – with Article 51 of the UN Charter in mind. Because aggression cannot be left unanswered.
Yes, it’s true that Russia’s war of aggression against Ukraine is putting our international law to the test. But, to my mind, our united response as the international community shows how broad-based and lasting support for this international law is. The Uniting for Peace resolutions of the UN General Assembly are the best proof of this. Together with over 140 countries, we have condemned Russia’s aggression, once again above and beyond regions and many political divides that otherwise exist between countries.
This shows that Article 2 (4) is not dead for the majority of the international community, but that the prohibition of the use of force is and remains the decisive legal cornerstone for us.
On 16 March 2022, the International Court of Justice, the principal judicial body of the United Nations, in its decision on provisional measures ordered Russia to immediately suspend the military operations that it had commenced in Ukraine.
Because the Court didn’t recognise Russia’s absurd argument that Ukraine is committing genocide in its own country. Germany is one of the 33 countries that support Ukraine in this procedure. And I must say – as terrible, as cruel, as unimaginable as Russia’s war of aggression is – that I find it encouraging that we may currently be witnessing a reawakened international awareness of questions of international law and thus of our decisive instruments, the international courts here in The Hague.
For example, when we see how the US is taking decisive steps right now to strengthen international humanitarian law with the bipartisan amendment to the War Crimes Act, then that gives me cause for optimism. This is an important step in the US, which, as we know, is not a party to the Rome Statute. Painful loopholes are being closed here – at long last, I might add on a personal note. The US will also no longer be a “safe haven” for war criminals.
We note that last year, with all of our G7 partners, we underscored the important role of the Prosecutor at the International Criminal Court in investigating and gathering evidence on war crimes and crimes against humanity in our statements about the war. That was not a matter of course in the past.
And I believe that this is key, even if it was perhaps only perceived as a footnote in day-to-day politics. After all, in the event of a violation of a legally protected interest, it is decisive how we respond to a breach of rules and principles in order to preserve peace guaranteed by law and thus the common good – the international community and the UN Charter.
And it is therefore vitally important now that our instruments and institutions of international law are able to work effectively and efficiently. And structural resilience is a key factor to this end. That’s something quite technical and mundane. But the rule of law and also international law do not work without strong institutions.
This is another reason why Germany is the second-largest donor to the International Criminal Court (ICC). This is why we are setting aside 20 million euro for the investigations into and the prosecution of the most severe crimes. And I call on other countries to likewise increase their financial contributions. After all, I saw this morning what those working in the service of international law do there on a day-to-day basis. And we know in general terms how poorly funded international institutions unfortunately are. This is why we are encouraging German judges to play an active role in the work of the ICC. Bertram Schmitt is serving at the ICC until next year. And with Ute Hohoff, who is currently a judge at the Federal Court of Justice in Germany, we have an excellent candidate who is set to continue this tradition.
Because the International Criminal Court plays a decisive role in the second key question that I touched on at the beginning of my speech, namely ensuring accountability for crimes under international law around the world.
Accountability matters. Because the perpetrators here in Europe and in all other parts of the world must know that they won’t get away scot-free. This is a question of deterrence. But, most importantly, this is also a question of justice, for the victims. The people who have experienced and unfortunately continue to experience such immeasurable suffering in Bucha, Kharkiv and Mariupol, who mourn their brothers, their sisters and their parents, their children and their friends. Who have had to witness crimes committed by the Russian side first-hand. Rape, abduction, violence, torture and murder. They all need hope for justice. There can be no lasting peace without justice.
That is why it is so important for the Court to investigate these crimes and bring them to justice as war crimes, as crimes against humanity, and possibly as genocide. And that the Russian leadership cannot invoke immunity in this regard.
Germany is among the 43 states that have referred these crimes in Ukraine to the International Criminal Court. We did this in solidarity with the people in Ukraine. But we also did this because we firmly believe that the prosecution of these terrible crimes is important to the international community as a whole.
The atrocities committed in Ukraine also show us that we must look closely at what kind of crimes these actually are. After all, when seeing these terrible images over the past 11 months, then we come to realise, on the one hand, that Russia’s brutal war of aggression is being waged with the inhuman methods of the past century that we had hoped were consigned to the past. And, on the other, in the 21st century, in a digital age, the methods and physical targets are different and more abstract.
I witnessed this myself last week when I was in Kharkiv. Standing on the site of a substation, you can see destroyed power lines, destroyed buildings. And you hear that two people working in this building were killed when it was hit.
You see what this means for the children in the heated communal shelters, for the people in the destroyed buildings in other places in the city that depend on this electricity, on this water supply.
In these shelters, in the ruins, the extent of these war crimes becomes visible because it isn’t just infrastructure that has been hit.
When missiles keep on hitting a power plant that technicians had just finished attempting to repair. You have to be aware that heat and the water supply also rely on this plant. And that, if this electricity supply isn’t restored to some extent within a few hours, that, at minus 15 degrees, the water supply will be cut.
If a substation is destroyed with a missile, then “only” two people might perhaps be killed. Nobody would die in a hacker attack on this substation. That wouldn’t perhaps even make it into the international media. But this single missile, this hack is, de facto, an attack on the lives of hundreds of thousands of people.
In the 21st century, in a digital age, crimes take on a different face. In an age when cutting-edge weapons or digital wars make terrible new atrocities possible. And we have to call a spade a spade here.
Deliberately letting hundreds of thousands die of thirst or freeze to death with a missile is a crime against humanity.
Or when we see that we still can’t really deal with an unfortunately age-old phenomenon in international law.
When children are abducted, in eastern Ukraine, when they are snatched from their families and forced or lured to Russia. Then we must ask ourselves what’s actually going on here. In the newspapers, we read about deportations, and sometimes also about adoptions. I for one don’t have any reliable facts about this. So I don’t know what I can actually call this, because we don’t know how these children were actually abducted. But we know precisely what Russia wants to achieve with this. It is a deliberate attempt to destroy a people.
How hard we find it to put a name to this – I believe it shows our strength when we say so aloud. Because that means talking about what we must do together to continue developing international law. So that we can give politicians like me and journalists a language for these things.
Because we know, especially when it comes to the weakest members of a society – children, women, the old and sick – that international law is sometimes the only language. How often we heard in the nineties, during the Balkan wars: “Well, rape is something entirely normal. It happened plenty in the Second World War.” And this phenomenon will not simply go away. Last week I was in Ethiopia, where we discussed the crimes in Tigray. And there, too, some people said: “Well, rapes, that’s a normal part of war. Why should we get hung up on it?” But I say: Rape is not a normal part of war. Rape is a war crime.
People, soldiers, who commit rape must be prosecuted as war criminals.
Systematic rapes as a means of war are crimes against humanity.
Systematic mass rapes, enslavement and forced pregnancy, child abduction with the intention of eradicating a population, are part of a genocide.
And it pains me that we still find it difficult, including in Europe, although we have discussed it often since the nineties, to call this what it is and to bring charges accordingly.
The mothers of Srebrenica still bear the scars of the lack of accountability in the nineties. They said to me: “It gets into every pore of your being.” How they were raped, how their daughters were murdered, at a time when rape was not recognised as a crime under international law, when they had to make it clear that they are victims. Crimes that were not prosecuted. They bear these scars today as seventy-year-olds, but so do their children, twenty-year-olds.
Because the gaps in international law, in international criminal law, are reflected in national legislation too. I met a twenty-year-old who has no surname. Because her father is her mother’s rapist, and under national law the surname comes from the father. Every day, every time she fills out a form, she carries the gaps in the law with her and every day she is marked out as a victim once again.
Fortunately, we have recognised this and worked actively to close this gap. Since 2002, the International Criminal Court has been able to prosecute rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilisation and any other form of sexual violence of comparable gravity as crimes against humanity and as war crimes.
And what is just as important is that the possibilities for prosecuting these sexualised crimes have continued to evolve since. Because international law is not something static. If we actively work on it. We saw this just recently in the decision by the Appeals Chamber of the International Criminal Court in December 2022 confirming the ruling against the former commander of the Lord’s Resistance Army, Dominic Ongwen.
The Chamber made it clear in this decision that cumulative charges can be brought alongside one another for rape, forced marriage and sexual enslavement – rather than one of these charges also covering the other offences. Because they each protect different legal interests.
The criminalisation of rape, for example, protects every individual from the violation of their sexual autonomy. The criminalisation of forced marriage protects every individual’s right to freely choose their partner. And that is important. Because it makes a difference for the victims when precisely that crime is punished that they themselves have suffered. This is the only way that we can progress on the path of justice. This is the only way that we can progress on the path of reconciliation. Justice for individual victims is the key to lasting peace.
And that is why the German Government, too, continues to work constantly on this issue. It is important for us to be able to prosecute IS crimes in Syria in our courts here in Germany under the principle of universal jurisdiction. What can be prosecuted in these proceedings is anything that constitutes a crime against humanity. But when we hold these proceedings, it is equally important for us to become more aware of who the victims of rape and abduction are. In most cases they are women and children, people who need particular protection.
When it comes to punishing the crimes that were committed against them, too, it is important to take an unflinching look and to keep the victims in mind. For the prosecution, it may be easier to charge IS fighters with terrorism. We do precisely that in Germany, too. For the many enslaved Yazidi women and children, however, that by itself does not bring justice. For them, it is crucial for charges to be brought and sentences to be passed that concern their enslavement, the systematic sexualised violence as part of the genocide of the Yazidis.
International law, international criminal law, in the national context too, is not static. International law must correspond to the realities of the twenty-first century. Our legal standards must keep pace with the times and it falls to us to constantly continue developing them. I am dwelling on this point because the ongoing development of international law is at its heart also a political issue. And of course one of the main counter-arguments, regarding the separation of powers, is always: That has nothing to do with the law. That’s politics. But of course the law, international law, is sustained by the responsibility that the world’s states and therefore governments take on together as an international community.
And in my view we are now once again at this point, where the international community asks itself what responsibility we bear at this time when international law has come to the fore, particularly for the crime that brings the terrible other atrocities in its wake: the crime of aggression. Article 2, paragraph 4.
And here we must acknowledge, looking at Russia’s war of aggression and the International Criminal Court, that there is a gap in international law. An accountability gap – concerning precisely that crime that is prohibited by Article 2 (4) of the UN Charter. And this gap is a grave issue.
Benjamin Ferencz, the last living prosecutor from the Nuremberg trials, said: “A crime against peace (or aggressive war) is itself the worst of all crimes. That spawns all of the other crimes.”
And precisely this is what we are currently seeing in Ukraine. It was Russia’s contemptible invasion of Ukraine that paved the way for the terrible crimes which have haunted us for months, shocked us to our core, and which – I believe we must see it this plainly – will continue to be committed, which will not stop for as long as this aggression goes on.
That is what makes it so disastrous that the limits of the International Criminal Court’s jurisdiction over the crime of aggression are now becoming visible. There is a lack of accountability for precisely this “crime of crimes”.
The relevant jurisdiction was established, it is true, in June 2010, following negotiations full of difficult compromises in Kampala. And the court has exercised its jurisdiction over the crime of aggression since July 2018.
But it can only exercise this jurisdiction under conditions that simply cannot be fulfilled in the current circumstances. The UN Security Council must refer cases to the International Criminal Court, which is logically impossible given Russia’s inevitable veto. The alternative is that the state whose nationality the suspect holds and the state on whose territory the aggression took place must have accepted the International Criminal Court’s jurisdiction. Neither of these requirements, as we know, are met. And Article 15 bis, paragraph 5 of the Rome Statute stipulates that:
“In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”
This is an exception to the requirements that we are familiar with for the three other main crimes. For those crimes, it is sufficient for one of the states involved to be a party to the Statute, or to have accepted the ICC’s jurisdiction on an ad-hoc basis, as Ukraine did in 2014 and 2015.
Of course the Kampala compromise should be ratified by everyone, and we still have a long road ahead of us in that respect.
But even then, we would still have a weak point in our international criminal law.
And that is why I believe that this is a crucial moment. That is why I can more than understand the grave concerns of our Ukrainian partners and friends when they complain that Russia cannot be charged with the crime of aggression before the International Criminal Court because Russia is not a contracting state and will not submit to the court’s authority.
I discussed this at great length and in great detail last week with Foreign Minister Dmytro Kuleba as we travelled together by train to Kharkiv. How can we address this gap in international criminal law? Because it is clear that we can’t simply wish for justice. It falls to us to create it.
We have been discussing this for a long time, because the debate around it began several months ago. “Then we’ll just create a special tribunal. Then we’ll just get it set up somehow.” But “somehow” does not work. Fortunately. In states where the rule of law prevails.
We must know exactly what we are going to do. And how. So that we can bring members of the Russian leadership before court. Some people envisage the creation of a new international tribunal, but in my view this would be very much to the detriment of the International Criminal Court in particular, an institution which we want and need to strengthen in this moment. That is why it is so important for us at the moment to talk about precisely this, even when we really don’t have time.
Our idea, with a number of partners, is therefore that there is a way to strengthen the International Criminal Court rather than weakening it, in the form of a court that derives its jurisdiction from Ukrainian criminal law. What would be important for me and, I believe, for many others would be for this court to be supplemented by an international component. Of course there cannot be a special procedure for one aggressor – what we establish must be supported by as many as possible of the world’s states. It is therefore important to us to have an international component, for example with a location outside Ukraine, with financial support from partners and with international prosecutors and judges, to reinforce the impartiality and the legitimacy of this court.
Yes, it would be a new format. Because previous special tribunals such as those for Cambodia, Kosovo and Sierra Leone have focused on investigating repression by the countries’ own governments, on national conflicts or civil wars, and above all on crimes against humanity and war crimes.
They never concerned the invasion of one state by another, i.e. the crime of aggression. These are all finer points of international law. But they are precisely what we must concern ourselves with, because they make an enormous difference in this matter. And I would like to say very clearly that I hear the criticism from those who say: We only care about this war because it is in Europe. Yet another special solution for European issues.
And, quite honestly, I share in this concern. And that is why it is so important to me that we talk to our partners about it, and work together to bring partners on board with this process in particular from other regions of the world.
Because it is true that a special institution would not be an ideal solution. Not for me, either. It is precisely what the name suggests: a special case. But the fact that we need this special solution is due to the fact that our international law currently has a gap.
And we are not talking about problems twenty years from now, but about justice today. And it is clear that, despite this gap in the law, despite these difficulties, we need to send a very clear message right now to the Russian leadership and thus to everyone else in the world that a war of aggression in this world will not go unpunished. It is not just about Ukraine. It is not just about Russia. It is about the future of our international criminal law.
That is why I believe it is so important to support and move forward with the idea of establishing an investigating authority in The Hague to address the Russian aggression – as an important instrument for investigating this crime. And in this connection I would like to expressly thank our Dutch partners and friends for their initiative and their commitment.
And it is equally important to me that Ukraine ratify the Rome Statute.
Nonetheless – we must be aware of this, too – a tribunal such as this would not be able to prosecute the troika.
And I am not indifferent, in my capacity as Foreign Minister, to the objections of special treatment. Nor in my capacity as a graduate of international law.
There is therefore a second course of action, parallel to the special tribunal, that I would like to promote here today with at least equal enthusiasm. Namely, that we tackle this gap in international criminal law at the root with at least the same enthusiasm. And that means reforming the Rome Statute.
Because, of course, we governments could say: We have no legal avenues for the crime of aggression. That’s just how it is.
We could make things easy for ourselves, like in the nineties, and say: “Well, rapes do happen in war.”
We could. But we should not, because it would be irresponsible.
Not only towards the victims, but also towards international law. International law always also bears witness to its time. And we are witnesses to our time. We hold responsibility and so this step is in our hands and we can decide to take it. We can also decide not to take it. But then we must take responsibility for our decision.
And so I encourage us to take this step. We know that it will involve a great deal of painstaking work. We know there are many arguments against it.
When Article 2 (4) of the UN Charter was formulated, there was the assumption that the permanent members of the Security Council would prevent other states from committing the crime of aggression. And crucially, that they would not commit this terrible crime, the breaking of peace, themselves. Russia gives the lie to this belief.
And so it is in our hands whether or not aggression goes unpunished. That is why I believe that we need to continue developing our laws in this field, to allow the International Criminal Court to exercise its jurisdiction over the crime of aggression, too, without any restrictions.
In a way it is abstract, and we too have discussed whether a Foreign Minister should talk about this in such deeply legal terms.
But after all, half the world is talking about it. I don’t know how it is for you, when you sit around your dinner table at home, with your parents-in-law or your children. When I sit there, or when I am on the street or at a panel discussion, then “ordinary people” ask me: How can it be that the UN Charter, that the United Nations lays down a crystal-clear ban on the use of force, but Putin is not prosecuted?
It is, of course, not only a question of international law. For the people in our countries it is also a political question, a human question. I would therefore like to advocate for the restriction of the International Criminal Court’s jurisdiction over the crime of aggression to be lifted and for this jurisdiction to be extended to equal the court’s jurisdiction over other main crimes.
This means that for the crime of aggression, just as for genocide, crimes against humanity and war crimes, it must be sufficient for the state that is a victim to be a contracting state.
I am aware that many of our partners, of our closest friends, too, take a critical view of this. And that it involves a great many complex issues, such as retroactive effect. There is no question about that either. There are a great many follow-up questions.
But I believe it befits a country such as ours, with our history, to drive this debate forward now.
Particularly as, and we should not forget this, in the complicated final negotiations in Kampala it was primarily the African and South American states – and thus an overall majority of the contracting states – who campaigned for the International Criminal Court to be given the same jurisdiction over the crime of aggression as it has over the other three crimes. And so it is nothing new. We did not have a majority back then. But we can have one now, if we work to garner support for it. This brutal Russian war of aggression also represents an opportunity, perhaps an obligation, for us to now attempt precisely that.
We will therefore hold a great many talks. With our partners and also with experts such as you who are here today, with legal experts around the world. On many issues, we can list ten arguments for and ten arguments against. And these legal debates, which then become political too, offer the perfect front for every politician to hide behind. But given the courage of those who are fighting in Ukraine for our freedom and our peace, we should not hide away in warm, peaceful, free meeting rooms and lecture halls; we should begin this painstaking legal work.
And so we want to make progress on both fronts. We want to talk to Ukraine and our partners about solutions that we can tackle together now. As an initial, special solution, so that we can take action now, because we need to, in order not to leave the Russian war of aggression without consequences.
And at the same time we want to continue developing international law and strengthen the International Criminal Court in its jurisdiction over the crime of aggression, for the sake of the entire international community.
International law is strong. I began by saying so, and I am utterly convinced of it. But for international criminal law to now bring its strength to bear, we must take on responsibility.
So that aggression does not go unpunished, so that justice does not remain an abstract value but is a genuine prospect. So that those who break our peace do not enjoy impunity. Anywhere in the world.
Ladies and gentlemen,
Russia’s brutal war in Ukraine is also a brutal attack on international law. Zeitenwende, a watershed moment, that means that we must find new responses in international law, too. Because nobody has the power to kill off the Charter of the United Nations, Article 2 paragraph 4. That is our response to this brutal Russian war of aggression.