When the International Court of Justice issued its Arrest Warrant Judgment in 2002, it indicated that personal immunities do not prevent proceedings in front of “certain international criminal courts” and provided three demonstrative examples of such courts. After the full-scale invasion of Ukraine commenced in February 2022, debates ensued regarding the elements necessary to qualify a court within the meaning of the Arrest Warrant Judgment. They particularly concern two types of tribunals (“fully international” and “hybrid / internationalized”). This article suggests that only fully international courts qualify as “certain international criminal courts”, while hybrid tribunals are far too attached to the sovereignty of State(s) to meet its criteria. The determination of a court as hybrid or international is rather fluid however, and the qualification as “a certain international criminal court” depends on various elements (the establishing mechanism; applicable law; and reflection of the will of the international community) in each individual case.
This article explores Russia’s official discourse on democracy in international law, addressing the following questions: When Russia speaks of democracy in the context of international law, what precisely does it mean and what does it advocate for? What do these discussions truly signify regarding Russia’s understanding and interpretation of democracy in international law? What are the potential consequences of Russia’s interpretation for the discourse on democracy in international law? The central hypothesis of this study suggests that Russia strategically leverages the counter-Western democratic discourse within international law to secure its position as a great power rather than offer a meaningful alternative to the Western “hegemonic” ideas of democracy. This study is novel, as Russia’s discourses on democracy have received little attention in international legal scholarship. It is relevant in light of Russia’s full-scale invasion of Ukraine, which is often framed within the broader context of the struggle between autocracy and democracy. The main analysis is construed around the official discourse of Russia’s high-ranking officials. The research highlights that although Russia’s discourse is directed against the Western liberal “hegemonic” idea of democracy, it does not offer any substantive alternative to it and aligns with the paradigm of realpolitik. Instead, it inadvertently reinforces the fundamental principles of Western liberal democracy.
In the past 15 years, Georgia and Ukraine have both brought cases against Russia before the International Court of Justice (ICJ). Georgia’s 2008 application ad¬dressed the separatist movements in South Ossetia and Abkhazia. Ukraine’s 2017 case (Ukraine v. Russian Federation I) accuses Russia of discriminating against Crimean Tatars, supporting terrorism in Eastern Ukraine and downing Malaysia Airlines flight MH-17. The 2022 case (Allegations of Genocide) claims that Russia’s war against Ukraine violates the Genocide Convention. This article examines Russia’s role in these disputes, comparing outcomes in Georgia v. Russian Federation and Ukraine v. Russian Federation I, both alleging breaches of the Convention on the Elimination of All Forms of Racial Discrimination. Only the latter reached the merits phase. The article also analyses the controversial judgment on preliminary objections in Allegations of Genocide. It argues that the ICJ’s consensual jurisdiction limits its effectiveness, restricting its ability to rule on Russia’s actions against Ukraine. Additionally, it assesses Russia’s strategies in these proceedings, focussing on the “rhetorical adaptation” of international norms.
This article analyzes the recently adopted European Union State aid rules designed to facilitate the implementation of “green” technologies. This initiative is in line with European objectives to combat climate change and transition to an emission-free economy. By contextualizing State aid rules within the broader regulatory policy landscape, the author aims to assess the inherent limitations of these tools. Based on this evaluation, the article attempts to determine if and to what extent EU State aid law can be successfully utilized to promote environmental objectives. The analysis begins with an overview of the State aid toolbox and its role in regulatory policies, situated on a spectrum between incentive-based and obligation-based approaches. Subsequently, it delves into the evaluation of potential consequences, encompassing risks such as the deepening disparities between wealthier and poorer Member States, inadequate safeguards against offshoring in pursuit of lenient environmental norms, and the peril of fostering subsidy dependence.
The question of the function of European criminal law has dominated recent doctrinal thinking. In order to answer that question, a thorough study on the guiding principles of criminalisation and their applicability to the European Union’s legislative process was necessary. This article focusses first on the concept of legitimacy and the need for a European criminal policy, and then on some principles that already exist in the EU’s legal order and their ability to provide said legitimacy. Following the conclusion that the existing principles are insufficient, it is suggested that the harm principle and the principle of protection of legal goods would be more appropriate to evaluate the material legitimacy of European criminal law. For that purpose, the multiple categories of interests that coexist in the EU will be analysed according to the allocation of responsibility for their protection. That distinction will, in turn, lead to the proposal of a three-step process to assess any given instance of criminalisation stemming from the EU. Finally, the practical consequences of such a process will be mentioned in the conclusion.
Despite the mushrooming literature on the European Neighbourhood Policy (ENP) and its numerous problems, little attention has been given to the analysis of its origins. Upon examining the scholarship, two contending explanations emerge regarding the policy’s formulation stage. While one perspective maintains that the policy was influenced by the European Commission’s past experience, the other highlights how the policy was affected by the European Commission’s desire to expand its powers vis-à-vis other European Union (EU) actors. Against this backdrop, this paper first seeks to frame both perspectives in theoretical terms. Then, through process-tracing analysis and elite interviews, it aims to determine which theoretical model not only better explains the structure of the Neighbourhood Policy, but also evaluates the nature of the interaction between European Union Member States and the European Commission throughout the policy’s formulation stage. In doing so, the paper seeks to expand our knowledge of the ENP’s genesis, as well as highlight the efficacy of institutionalist analysis of the European Neighbourhood Policy.
How should citizens respond to UN governance failures with respect to preventing climate change, wars of aggression, global health pandemics, and violations of human rights like access to food and public health protection? Europe’s multilevel constitutionalism has enabled the European Union (EU) to exercise a leadership role for realizing the universally agreed “sustainable development goals” (SDGs), including in the external relations of the EU. But democratic constitutionalism – as a political and legal strategy for protecting rights of citizens and supporting rules-based, democratic governance – remains contested by governments prioritizing authoritarian and neo-liberal policies. As an analytical research method, constitutionalism explains “market failures”, “governance failures” and “constitutional failures” – as well as related remedies – more convincingly than alternative methods like “realism” and “welfare economics”. The more power politics impedes UN and WTO reforms, the more necessary become second-best plurilateral governance reforms which make membership conditional on promoting human rights and rules-based, multilevel private-public partnerships for realizing the SDGs. Europe’s economic and “environmental constitutionalism” illustrates how constitutionalism can also facilitate sustainable development reforms in the UN, WTO and the plurilateral governance of global public goods, like climate change mitigation and transnational rule-of-law.
The violation of the rule of law in Poland (2015–2023) was related to the relationship between national law, especially constitutional law; and international law, especially European Union (EU) law. This article focuses on the issue of constitutional review in the context of concepts such as sovereignty and conferral of competences, as well as the supremacy of the Constitution and the primacy of application of international rules and principles. Sovereignty, a qualitative feature of the State, operates within the law, not outside of it. EU (international) law does not limit sovereignty, but the sovereign nature of the State cannot justify violations of the applicable law. Situating the relationship between international (EU) law and the national constitution in the perspective of the supremacy of one order over the other leads in practice to a collision and/or a stalemate. Rather, we should be guided by the principle of primacy as an “existential requirement” for the functioning of the Union, and more broadly, of international law. The primacy of application does not imply the supremacy of EU law over national law, nor the derogation of national law norms. Constitutional supremacy, on the other hand, is a principle of domestic law which does not have external legal effects and does not exempt a State from its international legal responsibility. The concepts of priority and supremacy coexist, but they fulfil different functions and express different perspectives – primacy does not prejudge supremacy, and supremacy does not exclude primacy. What is problematic is not so much the review of constitutionality per se, but the scope of that review and its effects. Once a national court has found a conflict between EU law and the national Constitution, should we accept the effect of selective refusal to apply EU law on the grounds of constitutional supremacy and sovereignty? The answer to this question is negative.
This article raises the issue of the proper publication of international treaties and their presence in the Polish legal system. The authors analyze this issue based on re¬search conducted on Polish-Russian treaties from 1944–1960. Their research has shown that, during this period, only 11% of treaties were properly published. The research – conducted on a very limited subject: only bilateral agreements between Poland and the USSR – leads to the pessimistic conclusion that in Poland it is customary practice to refrain from publishing an international agreement in the Journal of Laws and that citizens do not have at their disposal a single official or unofficial source to reconstruct Poland’s current obligations, which may indeed directly concern them. Also this finding raises important questions about the accessibility and enforceability of international treaties in the Polish legal system. At the international level, the consequences of failing to publish an act and to ensure official promulgation can be much more serious. In the absence of information about published agreements, it is not possible to sufficiently and completely determine the obligations between states nor to reconstruct the relations binding them. It is also impossible to clearly determine which international agreements are still in force between countries, which are invalid and which have expired.
The accountability response to Russia’s 2022 full-scale invasion of Ukraine attests to the growing importance of regional accountability frameworks in the fight against impunity. Many Member States of the European Union have taken active steps towards accountability for core international crimes committed by Russia in Ukraine by initiating domestic criminal investigations. The creation of centralised justice hubs, such as the International Centre for the Prosecution of Russia’s Crime of Aggression Against Ukraine, can bridge the knowledge gap between different accountability actors involved in international investigations, and additionally contribute towards developing best practices and the universalisation of investigative standards. In this context, new technology infrastructure and expertise play the role of an accelerant, actively contrib-uting to the coordinated fight against impunity and fostering information exchange and collaboration on an increasingly global scale.
This article explores the genesis of Russian aggression against Ukraine, tracing its origins from the unprovoked illegal invasion initiated in February 2014 to the full-scale invasion in 2022. Despite initial international responses, the lack of significant sanctions against Russia or efforts to prosecute its leaders for the crime of aggression persisted until the 2022 invasion. The international community’s condemna tion of the brutality accompanying this invasion underscored the need for accountability mechanisms within the existing international legal framework. However, limitations in prosecuting aggression within the International Criminal Court, coupled with chal lenges in amending the Rome Statute, have led to proposals for an ad hoc mechanism to address aggression gaining traction. These proposals highlight the urgency of holding aggressors accountable and safeguarding victims’ rights. Concurrently, Ukrainian ju risdiction incorporates the concept of the crime of aggression in its Criminal Code but lacks clarity on essential elements necessary for prosecuting such crimes, including the leadership element. An analysis of court verdicts reveals discrepancies in interpreting the crime of aggression, emphasising the necessity of adopting a unified approach that is consistent with international law. The article underscores the critical importance of enhancing legal frameworks, building capacity and encouraging international cooper ation to ensure accountability for the crime of aggression and to preserve the rule of law.
The article consists of two parts, the first of which discusses the problems associ ated with implementing the provisions of international law in the Ukrainian legal system regarding the understanding of the concept of “international crimes”. It underscores that the different definitions are due to the fact that Ukraine is not a party to the Rome Statute. However, it should be noted that most provisions of international law regarding interna tional crimes regarding war crimes, the crime of aggression and the crime of genocide are part of the Ukrainian legal system. At the same time, there are no crimes against human ity in Ukrainian national criminal law. The second part addresses the issues regarding Ukrainian courts’ interpretation of the national criminal law and international treaties on international crimes: interpreting the provisions of United Nations acts and the Rome Statute, applying the principle of “nullum crimen sine lege”in the context of prosecuting the crime of Holodomor, interpreting the provisions of the European Convention on Human Rights in connection with the use of trial in absentia in the case of Russian war criminals and interpreting provisions regarding universal jurisdiction in Ukrainian law.
Russia’s aggression against Ukraine and the efforts to prosecute the perpetrators have renewed the debate regarding domestic and international criminal jurisdiction over the crime of aggression. Given the inter-state nature of this crime and its link to an act of aggression, the existence of which can be determined by the Security Council, the International Law Commission’s (ILC) relatively restrictive approach to the exercise of criminal jurisdiction prevailed, at least until 2022. Against this background, the discussion regarding the establishment of a Special Tribunal for the crime of aggression against Ukraine has significantly influenced the trajectory of the understanding of general international law concerning individual criminal responsibility for the crime of aggression. The interpretative paths adopted in the mid-1990s are gradually being abandoned. At the same time, an intense ongoing debate concerning the understanding of the phrase “international criminal courts, where they have jurisdiction” has not led to any conclusive arrangements. Still, what is known is that there is a certain group of states for which such courts can be created through bilateral agreement between the state concerned and the United Nations, on the recommendation of the UN General Assembly.
This article explains the legal basis and reasons for establishing a Joint Investigation Team by the Polish Prosecutor’s Office, investigating crimes committed as a result of the Russian aggression against Ukraine. It analyses the reasons why this investigation is so highly demanding and describes how it requires an unconventional approach to work from investigators, as well as enormous coordination efforts and support from the EU organs. Other states are involved in the JIT on an unprecedented scale, as well as the OTP ICC, and unconventional support has been offered by the EU organs, especially in the area of digitalisation of the exchange of evidence. The article highlights the state and picture of investigations conducted into crimes committed in Ukraine, both in domestic jurisdictions and before the ICC, as well as possibly before an international or internationalised tribunal established to adjudicate the crime of aggression. It explains how the Polish investigation – conducted within the framework of a JIT – has become an important element of ‘strategic litigation networks’ for serious international crimes.
This article addresses the complex issue of immunity for State officials from foreign criminal jurisdiction, with a focus on the ILC’s role in codifying and ensuring the compatibility of international legal acts. It underscores the calls for exceptions to functional immunity, particularly concerning ius cogens norms, and it highlights how the current framework often impedes accountability for international crimes. However, the ILC’s limitation of Art. 7 to immunity ratione materiae, excluding jurisdictional immunities, presents a legislative gap that hampers prosecution under universal jurisdiction. This underscores the need for international codification and progressive development to reconcile immunity doctrines with the imperative of accountability for serious international crimes. The article highlights the lack of a clear international position due to: (1) the absence of uniform definitions for immunity ratione personae, ratione materiae and jurisdictional immunity, (2) the identification of various exceptions limiting the invocation of immunities in domestic and third-State courts and (3) the inconsistent interpretation of immunity exclusions for ius cogens violations. It argues for harmonising legal norms at the international level to adequately initiate and conduct criminal proceedings by specifying the circumstances that exclude jurisdictional, ratione materiae and ratione personae immunities, thus re-establishing criminal accountability for international crimes.
Law Discipline, Department of Administrative Law and Public Policy, Faculty of Administration and Social Sciences, Warsaw University of Technology (Poland)
The crime of aggression is an international crime that for various legal, political and practical reasons can be difficult to successfully and legitimately prosecute at the domestic level against nationals of aggressor or third states. This article considers the legality and legitimacy of domestic prosecutions initiated by third states regarding the crime of aggression against Ukraine and the role that the newly established International Centre for the Prosecution of the Crime of Aggression could have in increasing the legitimacy not only of domestic prosecutions by third states, but of the future Special Tribunal as well.
This article explores the role of Lithuania in seeking accountability for Russia’s crimes in Ukraine since 2022. This small Baltic state, being both an EU and NATO member for twenty years now, is advocating on behalf of their Ukrainian colleagues in many international arenas and forums. However, more than two years into the brutal war, some organisational and legal challenges have started to emerge. These include the challenges resulting from the complex international institutional framework, as well as legal ones related to universal jurisdiction and the scope of crimes included under current criminal investigations.
The ongoing conflict between Russia and Ukraine has caused serious harm to the environment, resulting in the destruction of ecosystems, a reduction in biodiversity, and damage to natural reserves and protected ecosystems. This type of damage may fall under the jurisdiction of both the International Criminal Court (ICC) under Art. 8(2)(b)(iv) of the ICC Statute regarding war crimes and the Ukrainian domestic courts under Art. 441 of the Criminal Code of Ukraine (CCU) regarding ecocide. However, while Ukrainian domestic judicial authorities are already conducting investigations under Art. 441 CCU, the prosecution by the ICC for environmental damage should satisfy the high threshold imposed by Art. 8(2)(b)(iv) of the ICC Statute. It would be interesting to see whether the ICC Prosecutor will initiate an investigation into the Kakhovka dam bombing, just like Ukrainian domestic authorities have already done.
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