Masterclass: International Criminal Law and the War in Ukraine

The course will be divided into the following seminars: 

Justice for Ukraine? Options and Challenges of International Criminal Justice

Ending impunity for international crimes is among the principal aims of international criminal justice. In light of that, it is not surprising that the international community is looking to institutions of international criminal law to deal with those responsible for the conflict in Ukraine, but also for specific crimes committed in the course of the invasion. But such expectations are also nurtured by successful examples in the history of international criminal law, including the Nuremberg and Tokyo tribunals, the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the Former Yugoslavia.

In the case of Ukraine, the International Criminal Court did indeed issue arrest warrants against some of the perpetrators. Prominent names are on the Wanted list: Putin himself, but also Maria Lvova-Belova (Presidential Commissioner for Children's Rights in Russia), Admiral Viktor Sokolov (Commander of the Black Sea fleet) and General Sergey Kobylash (Commander of the Long-Range Aviation Branch of the Russian Aerospace Forces).

But the question still arises whether international criminal law is a system that can effectively deal with this situation, or if, political obstacles aside, there are legal reasons why the prosecution of the suspected perpetrators may cause difficulties.

These are aspects which will be discussed in this seminar. The seminar will also introduce you to some basic concepts of international criminal law, and explain the legal framework and the precedent of the Nuremberg and Yugoslavia tribunals. It will also broach the question of jurisdiction and explore some of the problems that arise in an attempt to try those wanted under arrest warrants by The Hague.

The View from Bucha: Was Genocide Committed in Ukraine?

When, in April 2022, evidence emerged of the killing of more than 400 civilians in Bucha, charges of genocide soon followed. They have been raised in other contexts as well, such as the shelling of civilians at Irpin in the Kyiv Oblast, and the transfer of Ukrainian children to place them with Russian families.

Genocide, however, is a crime that can be difficult to prove. Cases before the International Criminal Tribunal for the former Yugoslavia have shown how narrow the legal interpretation of the crime can be and have highlighted in particular the need to demonstrate a specific intent on the side of the perpetrator - the intent to destroy, in whole or a part, a national, racial, ethnic, or religious group as such.

This seminar investigates the legal understanding of genocide and reflects in this regard in particular on past case law dealing with situations that arose in Bosnia and Herzegovina (including the killing of an estimated 8,000 Bosnian Muslim boys and men at Srebrenica) and in Rwanda (where, over the course of three months, about 800,000 Tutsis were killed by extremist Hutus). It explores the challenges that particular parts of genocidal intent have caused in the international criminal tribunals, highlights points which cause controversy in case law and academic debate alike and shows how these aspects are likely to be applied to the situation of Russian crimes committed in Ukraine.

Attacks on Civilians and Mistreatment of Prisoners of War: War Crimes in Ukraine

War crimes have been reported by several organisations which investigate the situation in Ukraine. The Independent International Commission of Inquiry referred to the "relentless use of explosive weapons with wide area effects in populated areas" which had "killed and injured scores of civilians and devastated entire neighbourhoods". The UN Human Rights Monitoring Mission in Ukraine, which had interviewed 159 prisoners of war held by Russia, found that the "vast majority" of the interviewees reported that they had been "tortured and ill-treated" during their internment. When the Chief Prosecutor of the ICC sought arrest warrants against General Kobylash and Admiral Sokolov, he referred, among other things, to "attacks on critical infrastructure in Ukraine, including strikes against power plants and sub-stations" that had been carried out from October 2022 to March 2023.

How does the system of the International Criminal Court address questions of war crimes? What are the elements of the relevant crimes that the Prosecutor has to prove, and what type of challenges can arise in this regard?

This seminar explores these questions and will also investigate some fundamental concepts relating to this crime category; in particular the questions 'What makes a war crime a war crime?' and 'What are the differences to other crimes, such as crimes against humanity?'.

The Lure of Nuremberg 2.0: Prosecuting the Crime of Aggression

While numerous States condemned the Russian invasion of Ukraine, the legal understanding of "aggression" comes with its own challenges.

The Nuremberg Tribunal - the court trying the major Nazi war criminals after World War 2 - considered a war of aggression "the supreme international crime" and found that it differed from other war crimes only "in that it contains within itself the accumulated evil of the whole". But following Nuremberg, the international community found it difficult to agree on the concept of the crime of aggression - it was only in 2010 that a substantial definition made it into the statute of the International Criminal Court. And even today, legal problems remain - so significant in nature that the question may be raised whether the instigators of the Russian invasion will ever be convicted of this crime before the ICC. It is for that reason that some international observers have mooted the idea of 'Nuremberg 2.0' - the establishment of a separate court that could try Putin and other leading officials for aggression.

What are the aspects that make aggression under the Statute of the International Criminal Court a problematic crime? How are initiatives to create a 'second Nuremberg tribunal' to be evaluated? Do they offer a better way forward for the international community?

This seminar will engage with these questions. It will also introduce you to the basic structure of the crime of aggression under the ICC Statute and the safeguards the international community decided to adopt with regard to the prosecution of the crime. It will also reflect on the legal history of 'aggression' after the Nuremberg judgment and the way in which the law on the use of force has shaped this crime category.

Dr Paul Behrens

Dr Paul Behrens is Reader in Law at Edinburgh Law School and has taught international criminal law for nearly 20 years at several universities. At Edinburgh, he is organiser of the courses International Criminal Law and Genocide and the Law (a course he established there). He is co-editor of The Criminal Law of Genocide (Ashgate 2012) and Elements of Genocide (Routledge 2017), and editor of Contemporary Challenges to Criminal Justice (Hart 2023). In 2022, he was amicus curiae in the Appeals proceedings in the Ongwen Case before the ICC.

Professor Andreas von Arnauld

Prof Andreas von Arnauld is Co-Director of the Walther Schücking Institute for International Law and co-editor of the German Yearbook of International Law. Before joining the Kiel Law Faculty in 2013, he served as Professor at the University of Münster and the University of the Federal Armed Forces in Hamburg (Helmut Schmidt University). He is a member of the Advisory Council on International Law at the German Ministry of Foreign Affairs and has extensively taught and published on matters concerning the use of force and international humanitarian law. His widely used textbook Völkerrecht ('International Law') is now in its fifth edition.

Dr Kenneth Chan

Dr Kenneth Chan is Research Associate at the Walther Schücking Institute for International Law in Kiel. He is the Managing Editor of the German Yearbook of International Law and teaches the course 'International Criminal Law' at the Faculty of Law at the University of Kiel.

Tuesday, 16 July 2024 

• 1:30pm - 3:30pm: Justice for Ukraine? Options and Challenges of International Criminal Justice (Dr Paul Behrens)
• 3:30pm - 4:00pm: Break
• 4:00pm - 6:00pm: The View from Bucha: Was Genocide Committed in Ukraine? (Dr Paul Behrens) 

Wednesday, 17 July 2024

• 1:30pm - 3:30pm: Attacks on Civilians and Mistreatment of Prisoners of War: War Crimes in Ukraine (Dr Kenneth Chan)
• 3:30pm - 4:00pm: Break
• 4:00pm - 6:00pm: The Lure of Nuremberg 2.0: Prosecuting the Crime of Aggression (Professor Andreas von Arnauld)

Please note that this course will not be recorded.

Sign up here

If you have any questions about the programme or registration, please email communications@law-school.ed.ac.uk.