‘International Law Does Not Operate in a Vacuum.’ A Conversation with Mykola Gnatovskyy, a Judge at the European Court of Human Rights

What trends will shape the development of international criminal law in the near future? NV, in partnership with the Centre for Civil Liberties, is publishing a public conversation on this topic with Mykola Gnatovskyy, a judge at the European Court of Human Rights.

This conversation took place during the conference ‘Justice 2030: Scenarios for Ukraine’ as part of Ukrainian International Criminal Justice Week, organised annually by the Centre for Civil Liberties around International Justice Day on 17 July 2025.

International criminal law is not experiencing the best of times. The International Criminal Court (ICC), the greatest achievement of the ‘renaissance’ of international criminal law in the 1990s and 2000s, is under constant attack. This ranges from the failure of states parties to the Rome Statute to comply with its decisions, to the withdrawal of individual states from this international treaty and the scandal surrounding allegations of sexual harassment against the ICC prosecutor, to the sanctions imposed by the United States against individual court officials. A new wave of armed conflicts around the world has been accompanied by a significant increase in the number of international crimes committed, which, unfortunately, is felt almost every day by the citizens of Ukraine, strengthening the position of those who are sceptical about the idea of international criminal law and international criminal justice.

On the other hand, it cannot be said that international criminal law is completely stagnant. Perpetrators of international crimes, although far from all, are being convicted by the ICC and national courts. Despite all the difficulties, a Special Tribunal for the Crime of Aggression against Ukraine has been established within the Council of Europe. The work of the UN International Law Commission offers a chance to strengthen the principle of non-applicability of functional immunities to perpetrators of international crimes. Recently, a large group of states, including Ukraine, signed the Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes Against Humanity, War Crimes and Other International Crimes. Work is continuing on the UN Convention on the Prevention and Punishment of Crimes against Humanity and amendments to the Rome Statute, which will extend the jurisdiction of the ICC to include the crime of aggression.

So, what trends — negative or positive — will shape the development of international criminal law in the near future? We seek answers together with Dr. Mykola Gnatovskyy, a judge of the European Court of Human Rights from Ukraine (moderation by Kostyantyn Zadoya, an expert at the Centre for Civil Liberties, PhD, Professor at Taras Shevchenko National University of Kyiv).

— Our question and answer session is entitled ‘International Criminal Law. 2030.’ However, I will not be asking Dr. Mykola Gnatovskyy questions, but rather offering him some predictions about the future of international criminal law and international criminal justice and asking him to comment on how realistic he thinks these predictions are. I should probably make a disclaimer here. The fact that I am offering a certain prediction does not mean that I am confident that it will come true. On the contrary, I am confident that most of them will not come true, but it is still worth discussing these important points. So, the first prediction is as follows: by 2030, The Ljubljana -The Hague Convention will come into force.

— I think that these conventions should be separated in the forecast. Their prospects are quite different, at least in terms of immediate chronology. The Ljubljana-The Hague Convention will enter into force because the formal requirements for it to become an international treaty are quite low. And they will be met quickly, given how many states have already signed the convention. By 2030, I think it will be in force, the only question is between how many states. Conventions on legal cooperation, which include this treaty, are by their nature applicable in bilateral relations between any pair of states that are parties to it. It is therefore important that as many countries as possible are covered by this convention — even if it mainly covers technical difficulties, it is nevertheless critical and progressive.

As for the future Convention on the Prevention of Crimes against Humanity and Punishment for Them, I think it is almost certain that it will not come into force by 2030. If it is finalised at the end of 2028 or early 2029, the signing and ratification process will begin. They will definitely happen. This convention will ultimately have more participating states than the Ljubljana-The Hague Convention. But it will simply be slower. This convention is interesting because the attempt to apply the model of the Convention on the Prevention and Punishment of the Crime of Genocide to crimes against humanity is, at first glance, quite obvious, but it encounters many nuances. I predict that it will eventually enter into force by 2040.

— Let’s talk more about the sources of international criminal law, specifically the Rome Statute and the amendment to it that is currently being widely discussed. Unfortunately, this amendment also concerns the events taking place in Ukraine. The forecast is that by 2030, the crime of ecocide will fall under the jurisdiction of the International Criminal Court.

— I must admit that my position on the crime of ecocide has changed almost diametrically over the past 15–20 years. I started out with enormous scepticism about this crime. It did not seem to me to be a serious initiative, especially at the level of its enshrinement in national criminal law, which was the result of long-standing work by the UN International Law Commission on the code of crimes against the peace and security of mankind and old discussions on this issue. There were no examples of the application of the relevant provisions of national criminal codes, in particular in Ukraine.

In fact, this is a critical and serious issue. I thought about it more carefully when various real proposals for amendments to the Rome Statute appeared. Incidentally, one of the most enthusiastic supporters of the initiative to bring ecocide under the jurisdiction of the ICC is Philip Sedns, who in February 2022 formulated the idea of a Special Tribunal for Criminal Aggression against Ukraine. He is a world-renowned expert in both international environmental law and international criminal law — a rare combination!

States are failing to fulfil their obligations not to cause serious long-term damage to the environment during armed conflicts, and these obligations are enshrined in international humanitarian law, in the 1977 First Additional Protocol to the Geneva Conventions. There is also the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Measures (ENMOD Convention). These treaty obligations are weak in practice. And the inclusion of crimes against the environment as war crimes in the Rome Statute does not seem very effective. Assessing the prospects, I think there is a good chance that the Assembly of States Parties to the Rome Statute will accept the proposal to bring ecocide under the jurisdiction of the ICC. After all, the proposal is there, it is attractive and, in essence, correct. Therefore, I hope that it will be accepted and that there will not be much resistance. I would say the chances are 50/50.

— And immediately following on from the previous forecast, here is the next one: by 2030, at least one more war crime will be brought before the International Criminal Court.

There is a high probability that the list of war crimes committed in non-international armed conflicts will grow. After all, the catalogue of war crimes for non-international armed conflicts is significantly shorter than for conflicts of an international nature. Formally, these will be new crimes, although in essence it will only be a matter of removing what I consider to be a rather artificial and harmful distinction between the two types of armed conflict.

As for adding fundamentally new war crimes to the Rome Statute, this is less likely. I remember that there was a proposal to make the use of anti-personnel mines a war crime. Given the situation in the world, it is clear that this will not happen in the foreseeable future. As for other topics, in my opinion, the most pressing issue is responsibility for war crimes committed as a result of the use of autonomous weapon systems, drones, and robots using artificial intelligence. This is something that needs to be seriously considered.

— I suggest moving on to institutional mechanisms for implementing international criminal law and, in particular, discussing the International Criminal Court. And I will make a prediction that is likely to concern many Ukrainian citizens. My prediction is that by 2030, at least one sitting head of state will appear before the International Criminal Court as a defendant.

— It is difficult to give a positive prognosis because by the time the head of state physically appears before the ICC, he will most likely no longer be the head of state. Of course, one can imagine a situation in which the government of a certain country has changed, and the new government has handed over to the ICC the head of state who is still formally recognised by someone as the head of state.

However, the reality is that a person first ceases to be head of state and then ends up in the International Criminal Court. This, incidentally, is the reason there was such a heated debate about the creation of a special tribunal for the crime of aggression against Ukraine: the issue of immunity for incumbent heads of state, heads of government and foreign ministers.

The International Criminal Court does not have an independent mechanism for enforcing its orders. This means that states must cooperate with it: whether it is the state to which this head belongs, any of its highest officials, or the states that defeated this state in a military sense and, accordingly, detained and arrested him, and then transferred such a person to the International Criminal Court is the ideal option for everyone. We’ll see…

— At the beginning of our conversation, I mentioned that we are witnessing the creation of a Special International Criminal Tribunal to examine the crime of aggression against Ukraine. And following on from this news, the next prediction is that by 2030, at least one more special international criminal tribunal will be established.

— I don’t think so. Although it cannot be ruled out entirely, depending on how the situation develops. The priority will be to consider crimes against international law in the International Criminal Court, a permanent organ of international criminal justice. However, in some contexts, the consideration of allegations of the most serious crimes against international law in specialised tribunals could at least be considered as an option where the ICC faces serious problems — for example, in the situation with Israel and Palestine. However, I will not hide my enormous doubts that this is possible.

Incidentally, financial considerations may also influence the creation of new tribunals. When we came up with the idea of establishing a Special Tribunal for the Crime of Aggression against Ukraine in early March 2022, we insisted that the costs of such a tribunal would be minimal. But now, when a specific budget is being calculated, there is already talk that this could turn out to be an expensive project. I continue to believe that the budget can be quite modest. The money will be found in any case, I have no doubt. But if the tribunal on the crime of aggression is expensive, then the costs of a new tribunal to deal with individual war crimes or crimes against humanity will inevitably be higher. The crime of aggression is so general and widespread that a lot of fieldwork and witness interviews are unlikely to be necessary, but for war crimes and crimes against humanity, this is unavoidable.

— Thank you, here is another prediction regarding the International Criminal Court. It is as follows: by 2030, at least one country will join the Rome Statute and at least one country will withdraw from it.

— Quite possibly. Hungary has not formally withdrawn yet, but it is on its way out. It will leave, at least under this government. We will see what happens under the next one.

There will definitely be more withdrawals. Several African states began to withdraw earlier or have already withdrawn due to accusations that the court only deals with Africa. That is now in the past. The reason some countries are leaving now lies in the nihilistic approach to international law demonstrated by the United States of America — and not only them. That is one side of the coin. On the other hand, there are countries that never seriously considered adhering to anything. And pressure on weaker states from the US or China could also potentially lead to such withdrawals.

There will be withdrawals, but new states will also join. Obviously, the potential is there. The accession of Armenia and Ukraine is excellent news for the International Criminal Court, and it will not stop there.

So I think this process will go both ways. The situation could change in an extremely short time if the creeping world war that is currently underway takes on other forms and, in the end, is resolved one way or another. After major wars and upheavals, international criminal law develops rapidly. Currently, it seems like everything is bad, but we have to get through this low point, and then things may turn out completely differently.

— Thank you. Next, I would say, is a prediction for devoted fans of international criminal law. It is this: by 2030, at least one international human rights institution, such as the European Court of Human Rights or the African Court on Human and Peoples’ Rights, will acquire the power to hear criminal proceedings concerning international crimes.

— That’s a good question that makes us think again about the role of regional human rights courts. The likelihood is minimal. I don’t see any real chance of that happening.

After all, regional human rights courts exist in a different paradigm. The regions also need to be divided because the chances in Europe are minimal, and if anything happens, it will be new structures. In Africa, there are possibilities because the idea of a regional African court is always circulating. The project to merge the Court of Justice of the African Union with the African Court on Human and Peoples’ Rights and grant it criminal jurisdiction in accordance with the Malabo Protocol has not found sufficient support. However, the situation in Africa can change radically and rapidly.

— Mykola Mykolayovych, here is my final prediction. It may not be entirely related to international criminal law, but I believe it is connected to it nonetheless. It is as follows: by 2030, all European states will withdraw from the Ottawa Convention on the Prohibition of Anti-Personnel Mines

— They won’t. None of them will. Because, in fact, the main sponsors of this convention are European states. I don’t know what would have to happen for Switzerland, for example, to withdraw from this convention. So it’s unrealistic.

Countries that do not have a land border with Russia have little incentive to withdraw from this convention. Well, except perhaps out of solidarity with those unfortunate countries that do have a land border. But they would rather quietly hand over their stockpiles of anti-personnel mines to those countries that do have a border.

In general, the situation with the Ottawa Convention highlights a problem with international humanitarian law and, indirectly, a problem with international criminal law that cannot be ignored. It is all well and good, and beautifully written, but it must have a foundation. The foundation is peace and the existence of mechanisms for the rapid and effective cessation of armed conflicts, or at least the avoidance of interstate armed conflicts. This is a question of the effectiveness of international law norms that prohibit the use of force or the threat of force.

In other words, ultimately, it is about what should protect us from war and what the United Nations system does not provide. Ultimately, all these mechanisms are specific projects. They cannot work autonomously in a vacuum. Even the most wonderful ideas do not work in a vacuum.

The Ottawa Convention on the Prohibition of Anti-Personnel Mines is one of the international legal projects aimed at making this world a better place. For example, so that children and civilians in general are not blown up by anti-personnel mines in Africa during the wars in the Great Lakes region, which have been going on for decades. I remember the media campaign for the adoption of the Ottawa Convention: extremely emotionally powerful commercials during breaks in Champions League football matches showing children playing football and then a boy standing without a leg, unable to play football. The logic of the convention, its ideology, is absolutely correct. But without a foundation — a mechanism for ensuring peace and ending all aggressive wars — the basis for humanitarian decisions is lost, and they do not work.