03 November 2023

Fighting Impunity Through Intermediaries

The European Union, International Criminal Justice, and the Rule of Law

The 24th of February 2022 lastingly altered Europe’s security architecture: following the Russian Federation’s full-scale invasion of Ukraine, characterized by many observers as one of the most unambiguous cases of the crime of aggression in the post-World War II era, European foreign and security policy has therefore lastingly pivoted towards its Eastern neighbourhood.

Since then, the European Union as well single member states have continued to support Ukraine in a multitude of ways, including direct financial assistance, political support in relevant international fora, far-reaching sanctions against Russian citizens and businesses, and massive arms supplies. While single supportive measures have, at least at times, not always been uncontroversial amongst EU member states, the imperative to maintain support on various levels to Ukraine to counter the Russian Federation’s attack on the EU level remained steadfast. What has, however, remained ambiguous at times is within which (legal) framework the EU has provided different means of support towards Ukraine. In other words: what legal principle – that may also be derived from its treaty framework – determined and guided EU support towards Ukraine? This contribution argues that at least certain streams of EU assistance for Ukraine in countering the Russian Federation’s aggression – namely those aimed at ending impunity for international crimes – have been organized within a distinct rule of law context.

Article 2 of the Treaty on European Union (TEU) enshrines the rule of law as one of the foundational principles governing the EU and distinguishes it as a value common to its member states. The long-held conviction, however, that the rule of law is a given among member states as well as among the European Union itself has been challenged in recent years: internally, most strikingly within the context of the (pending) Article 7 TEU procedures against Poland (responding to the country’s controversial judiciary reform agenda) and Hungary (reacting to a constant undermining of rule of law standards, including freedom of speech or freedom of science); whereas internationally, by being confronted with a growing number of increasingly hostile and in part authoritarian adversaries that have continued to flagrantly contest the validity, effectiveness, and normative value of a legal-political community based on the rule of law.

‘External’ Rule of Law Promotion

Notwithstanding these patterns of contestation, the EU has continued to support and strengthen multilateral as well as domestic judicial structures and institutions abroad under a distinct rule of law paradigm: with a view towards partner countries’ justice systems, for example, the EU has thus engaged in direct measures across a broad range of topical areas, including tackling urban crime and violence, the countering of organised transnational crime relating to arms, drugs, or human trafficking, as well as the fight against corruption. To assist in reforming the justice sector in respective partner countries and to thereby improve individual citizens’ access to justice may thus also be perceived as an epitome of lastingly strengthening the rule of law abroad – an objective also in line with the UN 2030 Agenda for Sustainable Development.

Following up on these efforts and with a view towards multilateral structures, the EU has also continued its efforts to bolster the rule of law through the domains of international criminal justice and human rights protect, for example by establishing the European Union Rule of Law Mission in Kosovo (EULEX), including substantial support for the Kosovo Specialist Chambers (KSC). Notwithstanding that such measures have regularly been implemented within the framework of its Common Security and Defence Policy (CSDP), the EU – together with a majority of its member states – has been actively contributing towards fighting international crimes through distinct international fora, including by strategically strengthening and empowering capable intermediaries, for example institutionalized judicial structures neither located within a distinct European nor domestic legal framework. Amongst these intermediaries, the International Criminal Court (ICC) has emerged as one main judicial focal point for the EU, also in the current context of the War in Ukraine.

Fighting Impunity as Rule of Law Strengthening

The fight against impunity for international crimes has thus become an increasingly important aspect of EU law-making in recent years. What has remained somewhat vague, however, is the EU’s very understanding and (legal) conceptualization of impunity as well as, interrelatedly, the question of how this might influence and thus guide respective EU policies, including with a view towards facilitating the eventual prosecution and subsequent adjudication on international crimes. Notwithstanding that the EU is no state and as such not party to the Rome Statute – the legal-organizational framework determining the ICC’s jurisdiction, mandate, and operations – it has still evolved into one of the Court’s staunchest supporters ever since its inception in the early 2000s. The EU’s sustained endorsement of the Court as a legitimate forum for prosecuting international crimes has thus been reinforced not only by underlining its pivotal importance for and within the realm of international criminal justice through expressing policy-related support and emphasizing its normative value, but likewise by providing generous financial assistance to the institution over the last two decades.

The EU’s (re-)focussing towards addressing the notion of impunity through such adjudicative fora is particularly noteworthy as nowhere in the Treaty on European Union one finds a correspondent value or objective that could as such be deemed specific enough so as to fully encapsulate the guiding principles stipulated in the Rome Statute. Therefore, the contingency for the EU to engage in the fight against impunity has usually been accommodated under the rubrics of consolidating and fostering the rule of law and respect for human rights as stipulated in various TEU provisions; pursuant to Article 21(2) TEU, for example, the consolidation of the rule of law as well as the respect for fundamental human rights is mentioned in conjunction with the requirement to preserve peace and strengthen international security in conformity with the Charter of the United Nations. Based thereupon, is has arguably been assumed that the principles guiding the Rome Statute and thus the ICC would also broadly fall in line with those fundamental values and objectives guiding the EU. The question of how the principle of fighting impunity for international crimes may be properly accommodated within the context of the European Treaty frameworks will be addressed in the ensuing paper based on the present contribution.

Modes of Rule of Law Encouragement

Besides direct rule of law encouragement in partner countries, the EU and its member states have also engaged in a more indirect empowerment of specific rule of law mechanisms, including with a view to judicial intermediaries. With a view towards international criminal justice, the EU’s approach of countering impunity through the empowerment of such intermediaries has hence taken two distinct patterns: on one side, the direct empowerment of international justice mechanisms through a broad array of supportive measures, including political, legal, as well as financial assistance – for example by publicly supporting investigations, providing legal-technical assistance and cooperation, or contributing towards institutional budgets. On the other side, such institutions have also been indirectly supported: when examining the means by and through which the EU has, for example, provided indirect assistance towards the International Criminal Court, amongst others, Article 11(7) of the recently terminated revised Cotonou Agreement – previously constituting the legal framework for the EU’s (economic) relationship with a total of 79 countries in Africa, the Caribbean, and the Pacific – protrudes. Correspondingly, Article 11(7) hence entailed that

“promoting the strengthening of peace and international justice, the Parties reaffirm[ed] their determination to share experience in the adoption of legal adjustments required to allow for the ratification and implementation of the Rome Statute of the International Criminal Court; and [to] fight against international   crime in accordance with international law, giving due regard to the Rome Statute”.

This kind of inherent conditionality for EU partner countries to enter the Rome Statute, thereby substantially contributing towards expanding the regime’s operational purview, has subsequently been inserted into various association and trade agreements the EU has concluded with third countries and hence resembles one amongst various mechanisms the EU has employed in order to consolidate and expand the applicatory ambit of the Rome Statute.

Since the early days of the War in Ukraine, the EU has constantly framed its support for Ukraine in the language of fighting impunity for international crimes allegedly committed by Russian forces. While this argumentative logic may be conceived as laudable from a moral vantage point, a correspondent legal foundation in current EU law would be desirable. Such a legal justification could also support in positioning the European Union as a likewise normative and political actor in the greater endeavour of inducing (individual) responsibility for massive human rights atrocities.

The underlying research project has been conducted as part of as ‘re:constitution’ fellowship, which the author completed during the academic year 2022/2023. As part of the fellowship, a final output in the form of a peer-reviewed journal article is scheduled for early 2024.


SUGGESTED CITATION  Oidtmann, Raphael: Fighting Impunity Through Intermediaries, VerfBlog, 2023/11/03, https://verfassungsblog.de/fighting-impunity-through-intermediaries/, DOI: 10.59704/0dc09d2b4ad47a16.

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