The German Position on a Possible Prosecution of the Crime of Aggression in Relation to the War in Ukraine: An Indecisive and Self-Contradicting Approach?
JOURNAL ARTICLE
Cite JOURNAL ARTICLE
Style
Format
The German Position on a Possible Prosecution of the Crime of Aggression in Relation to the War in Ukraine: An Indecisive and Self-Contradicting Approach?
German Yearbook of International Law, Vol. 67(2024), Iss. 1 : pp. 405–418 | First published online: June 16, 2025
Additional Information
Article Details
Pricing
Author Details
NA Alexander Elfgen, University of Cologne, Faculty of Law, Institute for International Peace and Security Law 50733 Cologne, Germany
- Alexander Elfgen graduated from the University of Cologne with a focus on international criminal law and criminal procedural law. He is presently pursuing his PhD focusing on the crime of aggression at the Institute for International Peace and Security Law in Cologne, where he is also working as a research fellow.
- ORCID profile
- Search in Google Scholar
Abstract
This article critically examines Germany’s position on prosecuting the crime of aggression in response to Russia’s war against Ukraine. While historically a key supporter of international accountability for aggression, Germany’s reaction since the outbreak of the war has been marked by hesitation and inconsistencies. The article outlines Germany’s early legal and political actions, including its support for the ICC’s investigations into the situation in Ukraine, yet highlights that current legal limitations under both international and domestic law prevent any prosecution of the crime of aggression in this situation. An analysis of Germany’s proposal for a hybrid tribunal anchored in Ukraine’s legal system follows, which, despite including international elements, would not meet the threshold of a truly international court and would be limited in its ability to prosecute high-ranking Russian officials due to the applicability of immunity rules. Germany’s reluctance to support a fully international tribunal represents a departure from its past leadership in advancing the prosecution of the crime of aggression by the international community. Germany needs to realign its policy with its historical role in promoting the Nuremberg legacy and to more decisively support international mechanisms for prosecuting aggression.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Alexander Elfgen\nThe German Position on a Possible Prosecution of the Crime of Aggression in Relation to the War in Ukraine: An Indecisive and Self-Contradicting Approach? | 405 | ||
| I. Introduction | 405 | ||
| II. Germany’s Efforts to Prevent Impunity for Russia’s War of Aggression Against Ukraine | 406 | ||
| A. Germany’s Immediate Reaction to Russia’s War of Aggression | 407 | ||
| B. A General Lack of Jurisdiction Over the Crime of Aggression | 408 | ||
| C. The German Federal Government’s Position on a Special Tribunal for the Crime of Aggression | 410 | ||
| 1. A Closer Look at Germany’s (and the G7’s) Call for an Internationalised Tribunal | 412 | ||
| 2. Current German Perspective on Functional Immunity in National Proceedings | 415 | ||
| III. Conclusion | 417 |