International Criminal Law - an Instrument for Political Arbitrariness?

International Criminal Law - an Instrument for Political Arbitrariness?

As officially announced by the Foreign Ministry in mid-October, Austria is supporting Ukraine before the International Court of Justice as an intervener in the proceedings against Russia based on the Genocide Convention. By way of background, Ukraine brought a case against Russia before the International Court of Justice on 26 February 2022 to counter Russia's claim that its war of aggression prevented genocide against the Russian-speaking population in eastern Ukraine.

In the pending case, Ukraine is asking the International Court of Justice to find that Ukraine did not commit genocide in eastern Ukraine. Rather, Russia had violated the Genocide Convention through its misuse of the concept of genocide to justify its war of aggression. Austria now supports this position.

In the specific occasion of the declaration of intervention, the Austrian Foreign Ministry makes it clear that it is not a matter of actively participating in the construction of a multipolar world order with the unclouded view of a country that is neutral according to its State Treaty:

"If Russia tries to cynically instrumentalise the Genocide Convention to justify its war of aggression in Ukraine, then Austria cannot and will not remain silent." [1]

However, the Ministry is very much silent on the fact that Austria itself - together with other states - instrumentalises international tribunals for its own political purposes under the pretext of international law or the breach of rule of law principles.

For Austria, too, is discussing in the Council of Europe the creation of an international ad hoc tribunal to investigate war crimes in Ukraine. [2] The International Criminal Court's hands are tied on this issue; it only has jurisdiction if both the attacking and the attacked state are members of the statute - which is neither the case with Ukraine nor with Russia. Nevertheless, neutral Austria supports investigations of crimes committed by individuals under international criminal law at the International Criminal Court both in terms of personnel and with a sum of money amounting to 100,000 euros, which the Foreign Ministry has transferred to the prosecuting authority.

"Legalisation" of political propaganda

However, the Austrian Minister of Justice Alma Zadić (Greens) recently took the cake: she had a decree drafted that is supposed to "specify the prerequisites for domestic jurisdiction in the case of war crimes". [3] The minister interprets the "violation of Austrian interests" very extensively by taking the route of Ukrainians who fled to Austria.

This decree also shows that criminal prosecution under international law is now being misused for political goals and propaganda in one's own country. For in the case of an investigation initiated in Austria against violations of international law in Ukraine, it would have to be possible to establish a causal connection between a refugee arrival and a concrete offence under international law. In addition, Austrian interests would have to be massively impaired in the individual case - these criteria will not regularly be met for the war crimes that are commonplace in the context of war.

As experienced EU Europeans, we know that the elites make the principles of the rule of law a matter of faith and measure them against their own non-transparent "values". International court proceedings are abused for the enforcement of their own power interests. Austria has submitted to this dictate.

However, neither the political opposition, nor the judiciary, nor the media ask critical questions, which would be highly timely in this context. Official Austria - right down to its institutions - has meanwhile allowed itself to be taken over by transatlantic interests and by the elites within the European Union. As a neutral state, Austria would have the opportunity to make its contribution to peace in Europe and good neighbourly relations with diplomatic skill. This opportunity is being squandered. The price will be very high.

This article was first published in Courrier des Stratèges on October 13th, 2022.