The Russian Invasion of Ukraine: Navigating Aggression’s Fragmented Justice Landscape

The Editors of the Cambridge International Law Journal Blog endorses this statement by the Fellows of the Lauterpacht Centre for International Law condemning the aggression perpetrated by the Russian Federation against Ukraine. The events of the past month have sharply called our focus back to the acts of aggression taking place around the world. We condemn all abuses of international and humanitarian law and request that readers and contributors join the call by the Department of International and European Law at the National University of Kyiv Mohyla Academy for the international academic community “to raise their voices about the evils of war”. Please consider supporting the British Red Cross Ukraine Appeal and the UNHCR. Finally, the Ukrainian Institute, in London, has listed additional suggestions for people wishing to support Ukraine and Ukrainians.

In the early morning hours of 24 February 2022, Russia invaded Ukraine. Leaders from around the world have condemned this as an illegal act of aggression. The following day, Karim Khan, the Prosecutor of the International Criminal Court issued a statement that he has been “closely following recent developments in and around Ukraine with increasing concern.” As many know, in 2017, the ICC activated its jurisdiction over the crime of aggression. So perhaps it is worth asking, in light of this apparent act of aggression and the ICC Prosecutor’s warning, whether aggression charges could be brought against Russian president Vladimir Putin and his leadership coterie, in reference to the invasion of Ukraine.

As we will explain, notwithstanding an existing Ukrainian self-referral of jurisdiction to the ICC in respect of war crimes and crimes against humanity in reference to an earlier Russian incursion, as well as the opening of an investigation, the recent invasion will not allow the ICC to expand its case to include potential charges of aggression. Nevertheless, might an aggression case against Putin and his associates be brought via universal jurisdiction in a domestic court or via the jurisdiction of a specially created ad hoc international criminal tribunal? Those questions are grappled with below as well.

The ICC’s Ukraine Preliminary Examination and Investigation

The ICC’s pre-2022 Ukrainian case relates to the more limited Russian incursion in February-March 2014, wherein its military crossed into Ukrainian territory and ultimately annexed the Crimean Peninsula. On 24 April 2014, in respect of allegations of war crimes and crimes against humanity, the former ICC Prosecutor, Fatou Bensouda, opened a preliminary examination regarding the situation in Ukraine.

Although Ukraine is not an ICC State Party, jurisdiction was based on two ad hoc declarations of acceptance of ICC jurisdiction under RS Article 12(3). The first declaration was lodged on 9 April 2014 and related to alleged crimes committed on the territory of Ukraine from 21 November 2013 to 22 February 2014. The second declaration, submitted on 8 September 2015, accepted ICC jurisdiction over alleged crimes committed on Ukrainian territory from 20 February 2014 onwards, with no specified end date. As highlighted in the Office of the Prosecution’s (OTP) latest Report on Preliminary Examination Activities (paras. 267-290), the inquiry has thus far focused on allegations arising from the armed conflict in Crimea and eastern Ukraine areas (paras. 274-276) as well as from the violence perpetrated on civilians in Kyiv’s Majdan Nezaležnosti (Independence Square) (paras. 272-273).

The OTP’s preliminary examination, meant to ascertain whether a full investigation is justified, is conducted within the framework of four ‘phases’: (1) initial assessment (filtering out cases patently lacking merit); (2) jurisdiction assessment – covering subject matter, geographic, temporal and personal jurisdiction); (3) admissibility assessment (covering complementarity and gravity); and (4) interests of justice assessment (considering, inter alia, victims and the maintenance of peace and security).

On 11 December 2020 the OTP announced the conclusion of its Ukraine preliminary examination, with a determination that the criteria for proceeding with an investigation were met as to jurisdiction, admissibility, and the interests of justice. Regarding Crimea, the OTP had a reasonable basis to believe there had been commission of various crimes against humanity (e.g., deportation, persecution on political grounds; and enforced disappearance), as well as war crimes (namely, torture; deprivation of fair trial rights; seizure of private/cultural property; and forced civilian service in enemy armed forces). In respect of eastern Ukraine, the reasonable basis for belief extended to various war crimes, including willful killing/murder; torture and inhuman/cruel treatment; outrages upon personal dignity; rape and other forms of sexual violence; unlawful confinement, and intentional attacks directed against civilians/civilian objects (including those clearly excessive in relation to the military advantage anticipated).

On 28 February 2022, the ICC Prosecutor announced that, pursuant to RS Articles 13(c) and 15, and in light of “the events unfolding in Ukraine, he has decided “to proceed with opening an investigation into the situation . . . as rapidly as possible.” The investigation would encompass the events covered in the preliminary examination recently concluded as well as “any new alleged crimes falling within the [Court’s] jurisdiction” given the “expansion of the conflict in recent days.”

He added that active investigations would be significantly expedited if State Parties were to refer the situation to his Office, as provided in RS Article 14. And State Parties responded. On 2 March 2022, the Prosecutor received referrals from 39 ICC States Parties, a broad range including countries from Europe, Oceania, and the Americas. And evidence streaming in via social media, such as images of rocket attacks against civilian enclaves and objects (such as the Kyiv central train station), strongly suggests that war crimes have been, and are continuing to be, committed during the invasion.

The Potential for Including the Crime of Aggression as Part of the ICC Prosecutor’s Existing Investigation?

But might the crime of aggression also be part of this investigation? According to RS Rule 45(2), the Ukrainian Art. 12(3) declarations apply to all crimes listed in RS Article 5, which now includes the crime of aggression, as defined in RS Article 8 bis. But if the Court were to exercise jurisdiction over the crime of aggression in this case, it would be via RS Article 15bis, which covers proprio motu investigations. It states that “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” This excludes jurisdiction in this case as Russia is not a State party.

To the extent that any Ukrainians near the borders or more deeply embedded Fifth Columnists might be complicit in Russia’s acts of aggression (and/or possibly fulfill the Article 8bis leadership criteria), could Ukraine’s second Article 12(3) declaration open the door for an assertion of ICC jurisdiction? We think not, based on the tenor of the negotiations in Kampala (where Gregory Gordon was present), as reflected in the travaux préparatoires: Article 15bis is lex specialis that would foreclose any assertions of jurisdiction via Article 12(3) declarations. And though it would be ideal to amend the Rome Statute to apply the ICC’s Article 12 ordinary jurisdictional regime to the crime of aggression, it is not likely to happen anytime soon as Article 121(4) of the Statute requires ratification of any new amendment by seven-eights of States Parties.

Might Other Options for Prosecuting Russian Aggression Be Available?

In our view, given that ICC aggression charges are not viable, two alternatives should be considered: 1) domestic prosecution via the application of universal jurisdiction and 2) international prosecution via the creation of an ad hoc tribunal.

As a jus cogens crime, aggression is subject to prosecution via universal jurisdiction. In fact, many countries have outlawed the offence in their domestic codes, including Russia and Ukraine themselves, as well as other European nations that might be tempted to act, such as Germany, the Netherlands and Sweden. But exercise of such jurisdiction is highly unlikely. Clearly, Russia will not prosecute the crime itself absent regime change and a willing new government – both unlikely (Russian regime change would logically be necessary for a Ukrainian prosecution as well – assuming any hypothetical new leadership in Moscow would cooperate and extradite). Nor is it realistic to assume other countries that have criminalized aggression would initiate prosecutions, given concerns regarding, inter alia, potential head of state immunity, lack of local jus ad bellum expertise, perceptions of political overreach, comity, and prohibitive logistical/financial burdens.

So would an ad hoc tribunal be a possibility? In the past, ad hoc international criminal tribunals have been created (for example, for crimes committed in the former Yugoslavia and Rwanda). But those were established via Security Council (SC) resolutions and here, with Russia being a member of the Permanent 5 with veto power, this would not be possible (for the same reason, an SC referral to the ICC via RS 15ter is also a non-starter). So a bit of creativity would appear to be in order.

Perhaps the UN General Assembly could create an ad hoc tribunal via the Uniting for Peace Resolution (“UPR” via UNGA Resolution 377A), originally used during the Korean War when Russia prevented the SC from taking action with regard to North Korean aggression. It can be resorted to when the SC fails to act as required to maintain international peace and security, and the General Assembly is called on to provide the UN with an alternative avenue for action. And perhaps the UPR could be used as well to justify an armed defence of Ukraine pursuant to Article 51 of the UN Charter. In such a case, creation of an ad hoc tribunal to try crimes of aggression could be imagined as a good complement to that. And creation of a tribunal in this manner has been previously recommended (see the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, paras. 1201-1202). The odds of action via the UPR are long and  some believe the law would not authorize its creation.

But other ideas have been floated. One proposes creation of a court via an agreement between Ukraine and the UN, approved by the GA (perhaps under the rubric of Uniting for Peace), which would exercise Ukraine’s territorial jurisdiction over the crime. There is precedent for this – the creations of the Special Court for Sierra Leone (2002) and the Extraordinary Chambers in the Courts of Cambodia (2003). Another proposal envisages a treaty among numerous countries, not under UN aegis, which would create a special international tribunal and operate pursuant to universal and/or delegated Ukrainian territorial jurisdiction. Given realpolitik, all these suggestions might seem like longshots, but Russia’s extraordinary act of aggression calls for an extraordinary response.

Gregory S. Gordon is a professor at The Chinese University of Hong Kong Faculty of Law, where he formerly served as Associate Dean and Director of the Research Postgraduates Programs. Before joining the legal academy, Professor Gordon worked as a prosecutor with the US Department of Justice and the International Criminal Tribunal for Rwanda. From May-June 2010, he represented the International League for Human Rights (the oldest human rights NGO in the US) at the ICC Kampala Review conference and offered expert advice in negotiations that resulted in amendments related to the crime of aggression and war crimes. He was at UN Headquarters representing the ILHR in December 2017 when the ICC Assembly of States Parties activated the Court’s aggression jurisdiction, and he serves on the Global Institute for the Prevention of Aggression’s Council of Advisers. Professor Gordon has published scholarly works on the  aggression offense and is currently writing the biography of one of the key figures in the movement to criminalize  aggression, former Nuremberg prosecutor Benjamin Ferencz.

Giovanni Chiarini is currently a Visiting Researcher at the Centre for Criminal Justice and Human Rights, UCC University College (Cork, Ireland) and at the Centre for Critical Legal Studies at the University of Warwick (Coventry, England), as well as an International Fellow of the National Institute of Military Justice (Washington DC). Giovanni is an Attorney (Bar Council of Piacenza, Italy) admitted as Assistant to Counsel (Conseils Adjoints) to the International Criminal Court list, and a PhD candidate at Insubria University (Como, Italy). Former Visiting Fellow at the Université Côte d’Azur (Nice, France) and at the Institute for International Peace and Security Law at Universität zu Köln (Cologne,Germany), he has received invitations as a Visiting Scholar to the Centre for International and Global Law at the University of Edinburgh (Scotland) and to the Center for Military Law of the TTU Texas Tech University (USA).