The role of international courts presents distinct and complex challenges compared to other judicial areas. Since the enforcement of judgments relies on the willingness of states to cooperate, international criminal law has primarily been applied against weaker states on the global stage. An international court seeking to act against representatives of strong – western – countries in the international sphere faces a difficult dilemma. On one hand, the law must apply equally to everyone. A court that fails to uphold this principle risks losing its legitimacy. On the other hand, a court that alienates powerful states risks rendering its judgments ineffective or even jeopardizing its own existence. This is illustrated by the events following the International Criminal Court’s (ICC) issuance of arrest warrants for Hamas and Israeli leaders. Numerous Western politicians harshly criticized the ICC’s efforts to hold representatives of their ally, Israel, accountable for actions in Gaza. Recently, this culminated in an executive order by U.S. President Donald Trump seeking to impose sanctions on the ICC. Such actions could jeopardize the very existence of the court, a result of decades of work by international lawyers since the Nuremberg Trials to end the immunity of world leaders.
Christoph Flügge was a permanent judge at the International Criminal Tribunal for the former Yugoslavia and later served at the International Residual Mechanism for Criminal Tribunals. In conversation with RevDem, he reflects on his experiences and the current developments in the field of international criminal law.
Konstantin Kipp: Over eight years have passed since the International Criminal Tribunal for the former Yugoslavia (ICTY) was dissolved. Could you provide our readers with a brief overview of your work, as well as the ICTY’s overall mission? Was the court ever subjected to external pressure from state governments or other actors?
Christoph Flügge: To address your question about the overall mission of the ICTY, we must look back more than thirty years. Just one year after the outbreak of the Balkan war in 1992, the UN Security Council unanimously adopted Resolution 827 (1993) on 25 May 1993, which established the International Criminal Tribunal for the Former Yugoslavia. This was a period after the Cold War, when people – along with most politicians – around the world believed in cooperation rather than confrontation. For a brief moment, there was a window of opportunity for mutual understanding, even among the five permanent veto-holding members of the UN Security Council.
In this resolution, the Security Council expressed the expectation that the establishment of an International Tribunal “would contribute to the restoration and maintenance of peace…” and to ensuring that violations of humanitarian law “are halted and effectively redressed.” However, the same resolution also decided “to establish an international tribunal for the sole purpose of prosecuting individuals responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia” from 1 January 1991 onward. This formulation emphasized that the Tribunal was essentially a criminal court tasked with the prosecution of individuals for their alleged war crimes. The ICTY was the first international criminal court since the Nuremberg and Tokyo Military Tribunals following the Second World War.
The ICTY consisted of three parts: the (Trial and Appeals) Chambers, the Office of the Prosecutor (OTP), and the Registry. I primarily served as a judge in the Trial Chambers, each composed of three judges. In my first two major cases—concerning Kosovo and the genocide in Srebrenica—I sat on the bench alongside judges from Australia, Trinidad and Tobago, Congo, and Zambia. My third case, one of the largest, also dealt with the Srebrenica genocide, along with numerous other allegations. This was the case concerning Ratko Mladić, the former commander of the Bosnian Serb Army. The Trial Chamber was composed of judges from The Netherlands (who presided), South Africa, and myself. Although public interest in this case was immense and the trial lasted four years, the daily work in this chamber resembled that of a German court handling major cases. The key difference from the German system, however, was that we held trial hearings almost every day, supported by an exceptional team of lawyers from around the world. In addition to my judicial work, I also served, in my capacity as presiding judge, as a member of the ICTY Bureau. This body consisted of the three presiding judges, the President, and the Vice President, and it addressed important matters aimed at enhancing the functioning of the court.
To answer your question about “the interests of different countries in the proceedings,” I can only say: I don’t know. And we—the judges—didn’t want to know. We were not aware of any political expectations from anyone. We were completely independent. Our President, however, was required to report on the progress of our work to the Security Council twice a year. During discussions of the report, some members of the Security Council (particularly the Russian representative) expressed a desire for our work to be completed more expeditiously. Otherwise, as far as I know, the ICTY was never subjected to any pressure from state authorities.
I only heard of one attempt regarding the International Criminal Tribunal for Rwanda (ICTR). According to a press report, a representative of the Vatican approached the president of the ICTR, requesting the discontinuation of proceedings against a Catholic priest and his release from custody. This attempt was completely unsuccessful. The president did not even inform the judges responsible for the respective case about this intervention. It was only years later that he revealed this story.
In 2019, you resigned from your position as a judge at the International Residual Mechanism for Criminal Tribunals (IRMCT). In an interview, you stated that, your decision was due to events that threatened the judicial independence of judges at the IRMCT. Could you explain what happened at that time? Have you observed similar incidents since? How strong is the protection of judicial independence at international courts in general?
The reason for my resignation from the IRMCT in 2019 was a decision by the UN Secretary-General, António Guterres, regarding our Turkish colleague, Aydın Akay. In violation of his immunity as an international judge, Judge Akay was arrested in Turkey and subjected to criminal investigations (accused of being a “terrorist”). When the usual term extensions for all IRMCT judges were being considered, the Turkish government argued that Judge Akay should no longer be eligible for reappointment due to the ongoing investigations against him. Despite the concerns and protests of most of our colleagues, the UN Secretary-General decided to extend the terms of all judges except Judge Akay. In my view, this was a violation of his immunity and a direct threat to the judicial independence of all judges. That is why I chose to step down from my position in protest.
I have not observed any such events since my resignation, but I am no longer closely familiar with the internal developments in international courts. Nonetheless, I remain convinced that, in principle, the judicial independence of judges in international courts is well protected. However, I do see troubling developments. After the Pre-Trial Chamber of the ICC issued an arrest warrant for Vladimir Putin, a Russian court responded politically by issuing arrest warrants against the judges of that chamber, the then President of the ICC, and – to my surprise – the German judge of the ICC, even though he had no involvement in the Putin case. This, of course, represents a severe threat to the independence of judges.
Over a decade ago, you observed that international criminal law had become an “inherent part of world politics” and expressed hope that the international community might expand its reach. Recently, the U.S. President issued an executive order seeking to impose sanctions on the ICC. European signatories of the Rome Statute have also shifted their stance toward international criminal law. Germany, long considered one of the court’s strongest supporters, has taken a non-committal position. In a press conference, a German government spokesperson stated that it was difficult to imagine Germany complying with the arrest warrants. Do you still hold the hope you once expressed? Do U.S. Sanctions pose an existential threat to the court? What do you make of politicians who praise the rule of law domestically while treating international jurisdiction as optional?
I am inherently optimistic and try to maintain that outlook. However, I must concede that the world has changed, and nothing is guaranteed anymore. Undoubtedly, after the reelection of Donald Trump as U.S. President, the ICC faces severe threats once again. This not only affects the freedom of movement of ICC judges and staff but also impacts many American citizens working as staff members at the court. I cannot imagine the practical consequences U.S. sanctions could have for them. Furthermore, companies with contracts with the ICC could also face sanctions from the U.S. While I am not deeply familiar with the ICC’s administrative structure, I sincerely hope that the court’s administration, particularly the Registrar, will find ways to ensure the court continues to function despite the American sanctions.
In general, I am deeply concerned about the current stance of many Western politicians towards international criminal law. They praised the ICC for issuing the arrest warrant against Vladimir Putin. In the Netanyahu case, they should adopt the same approach if they wish to be taken seriously. It is for the court to determine whether there are sufficient judicial grounds for an arrest warrant. Representatives of the German government have been very hesitant to make a clear statement. Just recently, opposition leader Friedrich Merz excluded the possibility of executing an arrest warrant for Netanyahu in Germany. I can only agree with the clear position expressed by many prominent German professors of international criminal law, which was published in June 2024 in the Frankfurter Allgemeine Zeitung and Verfassungsblog. There is no doubt that Germany has an obligation to execute the court’s order for arrest if one of these alleged war criminals enters German territory. According to Article 27 of the Rome Statute, heads of state or government do not have immunity. That is crystal clear. Double standards are poison for international criminal law.
It was equally disappointing and alarming to see that Putin was received warmly in Mongolia without arrest, despite the fact that Mongolia has signed the Rome Statute and a Mongolian lawyer was elected as a judge of the ICC with the highest number of votes just a year ago. This was a clear violation of Mongolia’s obligations as a member state of the ICC.
A few days ago, another shocking violation of the obligations of ICC member states was revealed. A Libyan police officer was arrested in Italy based on an arrest warrant issued by the ICC. However, Prime Minister Giorgia Meloni intervened, releasing him and helping him escape to Libya aboard her official airplane, thereby evading justice. In doing so, she followed the troubling example set by South Africa years ago, when then-President Jacob Zuma assisted Sudan’s President al-Bashir in leaving the country on the presidential plane, despite an order from a South African high court.
It has been argued that the court is acting “too quickly,” potentially endangering its own existence. At the same time, one might think that a court tasked with addressing war crimes under its jurisdiction cannot act quickly enough. What is your perspective on such claims? Should a court consider these political factors, and can it maintain legitimacy if it consciously chooses to ignore certain actions? Or is this inherently a Scylla-and-Charybdis scenario, where no path forward is entirely right?
That is a very difficult question. Should speed be a decisive factor? When it comes to war crimes, it’s never too early to begin proceedings, considering the gravity of the crimes involved. The hope to end the war through criminal proceedings is understandable, but in my view, it doesn’t work. The Balkan war went on for years, even after the establishment of the ICTY in 1993, with the genocide in Srebrenica in 1995 and the atrocities in Kosovo in 1999. Similarly, the hope of the Prosecutor and the Pre-Trial Chamber of the ICC—if there was any—to stop the wars in Ukraine and Israel/Palestine by issuing arrest warrants against Putin, Netanyahu, and the Hamas leaders was, in my opinion, completely unrealistic. However, there’s a dilemma: why should one wait while serious war crimes continue to be committed? I don’t have a convincing answer to that.
In general, I don’t believe in the deterrent effect of criminal law—whether domestically or internationally. It doesn’t work. Even the death penalty doesn’t reduce the number of murders. On the contrary, it contributes to a violent atmosphere in society. The U.S. is a prime example of this.
While the ICC’s recent actions pose threats, they also have the potential to strengthen its legitimacy in civil society. Civil society organizations and other non-governmental actors have played a crucial role in advocating for the creation of the court and promoting the universal acceptance of the Rome Statute. For instance, the European Center for Constitutional and Human Rights (ECCHR), an organization from your home country, is challenging double standards in international criminal law through legal interventions. Can civil society and non-governmental organizations provide a strategy to ensure the survival of international criminal law without yielding to governmental pressure?
The support of international criminal courts by civil society and NGOs is indeed very important. Many international organizations, such as Amnesty International and Human Rights Watch, are actively involved in collecting evidence from the battlefields in Ukraine. Regarding the civil and international conflict in Syria, it is remarkable that, despite the years of the brutal Assad regime, NGOs like the Commission for International Justice and Accountability (CIJA) have been diligent in gathering evidence, including witness testimonies. As you mentioned, the European Center for Constitutional and Human Rights (ECCHR) played a key role in triggering investigations against Syrian officials for their involvement in the torture system in Syria. Two of these officials have been convicted in Germany under universal jurisdiction, one of them receiving a life sentence. To my knowledge, there was very effective cooperation between the ECCHR and the Federal Prosecutor’s Office.
The courts also hold a high reputation in civil society and must live up to its expectations. Three days after the start of Russia’s war against Ukraine, a massive demonstration took place in Berlin, with hundreds of thousands of people holding posters calling for “Putin to The Hague.” They were not demanding “Hang him!” or anything of that sort. This marks a significant civilizational advancement, reflecting the public’s trust in the judiciary. This trust should not be disappointed.
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