The FINANCIAL — The world’s only permanent court for atrocity crimes would seem like the exact place the perpetrators of an illegal invasion would be brought to justice. The International Criminal Court already has an investigation open into the conflict in Ukraine, but The Hague-based court also has a complicated history with the crime of aggression. Ukrainian President declared it has submitted the country’s application against Russia.
Ukraine has submitted its application against Russia to the ICJ. Russia must be held accountable for manipulating the notion of genocide to justify aggression. We request an urgent decision ordering Russia to cease military activity now and expect trials to start next week.
— Володимир Зеленський (@ZelenskyyUa) February 27, 2022
Aggression is one of the core crimes established by the Rome Statute, which created the court in 2002. But ICC member states couldn’t agree on a definition of aggression, according Astrid Coracini, a senior lecturer in international law at the University of Vienna. So they kicked the can down the road, including the crime in the treaty but only later creating a definition at the Kampala Review Conference in 2010. The definition includes a carve-out for non-member states, mostly as a concession to the United States. The Russian Federation isn’t a party to the Rome Statute, so no act of military aggression it perpetuates could be prosecuted at the court. In a press release late on Thursday night, the court confirmed that it could not act. “The court cannot exercise jurisdiction over this alleged crime in this situation,” chief prosecutor Karim Khan said in a statement.
However, if Russia, or Ukraine, commits other crimes covered by the Rome Statute – for example, war crimes such as recruiting child soldiers or pillaging – the ICC could get involved. Ukraine is also not an ICC member but has given the court permission to investigate crimes on its territory since 2013.
Coracini says the court could either amend the existing investigation, in which outgoing prosecutor Fatou Bensouda found there was a reasonable basis for violations, or open a separate investigation into the latest conflict.
The United Nations
There is another route to The Hague, namely through the U.N. Security Council, which can refer matters to the ICC for investigation. That requires a unanimous vote, and since Russia is a permanent member of the council that seems exceedingly unlikely.
“For any meaningful action, you need approval from the Security Council. And Russia will veto it,” said Tamsin Phillipa Paige, senior lecturer at Deakin University School of Law in Australia.
Russia’s membership on the council would also prevent the U.N. from establishing an ad hoc tribunal to prosecute any crimes that occur during the conflict, as it did with Rwanda and the Former Republic of Yugoslavia.
Like the Rome Statue, the U.N. charter also outlaws the crime of aggression. According to the first article, the purpose of the U.N is to maintain international peace and security, and to that end “to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.”
Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have been closely following recent developments in and around Ukraine with increasing concern.”
While on mission in Bangladesh, I have been closely following recent developments in and around Ukraine with increasing concern.
I remind all sides conducting hostilities on the territory of Ukraine that pursuant to the declaration lodged on 8 September 2015, accepting jurisdiction of the International Criminal Court (“ICC” or the “Court”), my Office may exercise its jurisdiction over and investigate any act of genocide, crime against humanity or war crime committed within the territory of Ukraine since 20 February 2014 onwards.
Any person who commits such crimes, including by ordering, inciting, or contributing in another manner to the commission of these crimes, may be liable to prosecution before the Court, with full respect for the principle of complementarity. It is imperative that all parties to the conflict respect their obligations under international humanitarian law.
My Office has also received multiple queries on the amendments to the Rome Statute with respect to the crime of aggression, which came into force in 2018, and the application of those amendments to the present situation. Given that neither Ukraine nor the Russian Federation are State Parties to the Rome Statute, the Court cannot exercise jurisdiction over this alleged crime in this situation.
My Office will continue to closely monitor the Situation in Ukraine. In the independent and impartial exercise of its mandate, the Office remains fully committed to the prevention of atrocity crimes and to ensuring that anyone responsible for such crimes is held accountable.
Following my return to The Hague, I intend to issue a more detailed statement regarding the Situation in Ukraine, providing clarity on my assessment and the next steps I envisage in relation to this file.