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

Introduction

This article examines whether Russia’s February 2022 invasion of Ukraine could lead to criminal prosecution for the crime of aggression.

The authors note that many world leaders described the invasion as unlawful aggression. They then ask whether Vladimir Putin and other senior Russian leaders could be prosecuted before the International Criminal Court or through other legal mechanisms.

Their central conclusion is that although war crimes and crimes against humanity investigations were possible, prosecuting aggression faced major jurisdictional obstacles.

The ICC’s Existing Ukraine Investigation

The article explains that ICC involvement with Ukraine predated the 2022 invasion.

This earlier process focused on events beginning in 2014, including:

• the annexation of Crimea

• armed conflict in eastern Ukraine

• violence connected to protests in Kyiv

Although Ukraine was not then a full ICC State Party, it accepted ICC jurisdiction through special declarations under Article 12(3) of the Rome Statute.

These declarations allowed investigation of:

• war crimes

• crimes against humanity

Later, in February 2022, ICC Prosecutor Karim Khan announced an investigation that would include new crimes arising from the expanded conflict.

Why Aggression Charges Were Difficult at the ICC

The article distinguishes the crime of aggression from other international crimes.

Aggression concerns the unlawful use of armed force by one state against another and generally targets senior political or military leaders responsible for launching the attack.

The authors argue that despite the apparent invasion, the ICC could not easily prosecute aggression because:

• Russia was not an ICC State Party

• the Court’s aggression jurisdiction is narrower than for war crimes or crimes against humanity

• special Rome Statute rules limited prosecution of nationals of non-party states in these circumstances

Therefore, even though the ICC could investigate atrocities committed during the war, adding aggression charges was legally blocked.

Domestic Prosecution Through Universal Jurisdiction

The authors next consider whether national courts could prosecute aggression.

Some countries criminalise aggression domestically, including:

• Ukraine

• Germany

• Netherlands

• Sweden

However, they regard domestic prosecutions as unlikely because of practical and legal barriers such as:

• head-of-state immunity

• lack of custody over suspects

• political sensitivity

• evidentiary difficulties

• diplomatic consequences

Ad Hoc International Tribunal

The article gives serious attention to creating a special tribunal for aggression.

Historical precedents include:

• International Criminal Tribunal for the former Yugoslavia

• International Criminal Tribunal for Rwanda

But those courts were created through the United Nations Security Council.

Because Russia is a permanent member with veto power, the authors argue that route was effectively blocked.

Alternative Routes Through the UN General Assembly

The article explores whether the United Nations General Assembly could act instead.

One possibility discussed is the Uniting for Peace procedure, historically used when the Security Council is paralysed.

Possible models mentioned include:

1. A tribunal created through UNGA-backed action

2. A court established by agreement between Ukraine and the UN

3. A treaty-based tribunal formed by multiple states outside UN structures

The authors acknowledge these options would be politically difficult and legally debated, but they argue extraordinary aggression may justify extraordinary responses.

Broader Theme: Fragmented Justice

The title’s reference to a “fragmented justice landscape” reflects the article’s broader message:

International criminal law has multiple institutions and pathways, but none provides a simple or guaranteed route for prosecuting aggression by a powerful state.

Different crimes fall under different legal systems:

• war crimes → ICC jurisdiction more feasible

• crimes against humanity → ICC jurisdiction possible

• aggression → much harder to prosecute

This fragmentation creates accountability gaps.

Conclusion

The article concludes that Russia’s invasion created a strong factual case for allegations of aggression, but existing legal institutions were poorly equipped to respond quickly.

Its key message is that:

• the ICC could investigate atrocity crimes

• ICC aggression charges were blocked by jurisdiction rules

• domestic courts faced serious limits

• a special tribunal might be the most realistic path, though politically uncertain

The piece therefore highlights a central tension in international law: strong condemnation of aggression does not always translate into immediate enforceable criminal accountability.

Gregory S. Gordon is a professor at The Chinese University of Hong Kong Faculty of Law. Giovanni Chiarini is an attorney and researcher affiliated with several European institutions.