Ist eine gerichtliche Verfolgung der russischen Aggression gegen die Ukraine möglich? Und wenn ja, durch welches Gericht?

This article examines the question whether judicial persecution of the Russian aggression against Ukraine is feasible and which tribunal might be competent. In this context, a distinction has to be drawn between individual criminal responsibility and State responsibility. Individual criminal responsibility may be sought before national tribunals; however, questions of immunity will – still – pose an obstacle for persons holding a high official position independent of the question whether we are concerned with grave war crimes, crimes against humanity or genocide or the crime of aggression. Questions of immunity of high State organs can only be overcome by an international criminal court, as e.g. the ICC, but international courts are dependent on the acceptance of their jurisdiction by States. In the present case, the ICC will in any case not have jurisdiction to judge upon the crime of aggression, as this jurisdiction is excluded for non-parties to the Statute. Thus, the idea of creating a hybrid international criminal tribunal has been raised, however, such a tribunal would not be an “international” tribunal, what means that questions of immunity remain relevant. Furthermore, the legitimation and selectivity of such a tribunal pose serious concerns with regard to the significance of such a tribunal. Therefore, international criminal persecution seems rather illusory, so that the question arises whether responsibility of Russia and the consequences flowing from the aggression may be judged upon by other, not criminal, international courts. But neither the ICJ, nor the ECtHR, where cases are already pending, will be in the position to deliver a judgment on the merits concerning the Russian aggression.