The International Criminal Court’s Current Limited Jurisdiction
The crime of aggression or the crime against peace falls under the jurisdiction of the International Criminal Court (ICC) at Article 8bis. However, in a highly constrained and limited way as evident in Articles 15bis, (State referral, proprio motu), and 15ter, (Security Council referral). The ICC only has jurisdiction on the crime of aggression if the United Nations Security Council refers a case to the ICC or a State Party refers a situation to the ICC or the ICC Prosecutor starts an investigation on their own initiative and the States involved are State Parties to the Rome Statute and have adopted and ratified the Article 8bis amendments to the Rome Statute on the crime of aggression.
In the situation of the Russia-Ukraine War, no Russian State officials have been indicted on the crime of aggression because Russia is not a State Party to the Rome Statute. Although Russian State officials, including President Vladimir Putin, have been indicted for other serious international crimes. Further, under the rules of the ICC no one can be tried in absentia and, consequently, it seems highly unlikely at present that Russian President Putin will ever be arrested, detained, and tried for his alleged crimes.
An International Special Tribunal for Prosecuting the Russian Aggression Against the Ukraine
Given the limited jurisdiction and the complications involved for the ICC prosecuting the crime of aggression, there have been calls to establish an international Special Tribunal to try those who are responsible for the crime of aggression against Ukraine. Several models of the kind of Special Tribunal have been proposed but a consensus as to which of the possible models ought to be adopted has yet to emerge. An international Special Tribunal for the blatant crime of aggression against the Ukraine appears to be the most viable option that ought to be pursued. This would involve a treaty of like-minded States to pursue. While it could take many years to realise, the long arm of the law will eventually catch up to the senior leadership responsible for the crime of aggression in Russia against Ukraine.
Carrie McDougall has presented a cogent argument in favour of pursuing such a Special Tribunal.
‘While sceptics have suggested that Russia’s actions have signalled the death of Article 2(4) [of the UN Charter], I would instead argue that the unprecedented response by the international community to the violation of the prohibition of the use of force, and the international community’s reliance on international law in doing so, proves that the overwhelming majority of States consider Article 2(4) to be the keystone of the international order. Prosecuting Putin and other leaders for the crime they have committed, and ratifying the aggression amendments, would underscore that such violations will not be tolerated and thus help to ensure that those who might seek to emulate Putin’s actions are stopped in their tracks.’
Proposals for an International Special Tribunal
One model that has been proposed for the prosecution of the crime of aggression or the crime against peace in the Ukraine is a Special Tribunal based on a treaty between Ukraine and the Council of Europe (CoE) or its member States. To become truly an international court and overcome certain legal immunities that might apply to high-ranking Russian officials the tribunal cannot be incorporated in the domestic legal system of Ukraine or any other State. And, the tribunal must be acting on behalf of the international community as a whole. Thus, Gaiane Nuridzhanian argues that,
‘… an international tribunal based on a treaty with the CoE or its member States can arguably be considered sufficiently international to overcome the personal immunities of the acting State leaders if its founding treaty, similarly to the Rome Statute of the ICC, is open for any State in the world to participate in the negotiations or join afterwards, and is conditioned to come into force upon its ratification by at least 60 States.’
A further proposal for the prosecution of the crime of aggression has been made that calls for the establishment of an international Special Tribunal through the Government of the Ukraine and the United Nations working together. The United Nations, acting on the recommendations of its General Assembly, could negotiate an agreement with the Government of the Ukraine to establish such an international Special Tribunal. Oona Hathaway has argued that such an international tribunal should have three essential features:
- The tribunal should be international.
- The tribunal should be created through an agreement between Ukraine and the United Nations, on the recommendation of the General Assembly.
- The tribunal should be limited in scope.
Such an international Special Tribunal is essential for holding those criminally liable in Russia for the crime of aggression against Ukraine. The point being is that this international Special Tribunal is for this purpose alone and that what is necessary is the proper expansion of the ICC’s jurisdiction to include completely the full responsibility for the prosecution of the crime of aggression or the crime against peace. This has been argued persuasively by Claus Kress, Stephan Hobe, and Angelika Nußberger as follows:
‘Within such a two track approach, the special tribunal would be clearly marked as a transitional building block within the architecture of international criminal justice: Quite similar to the ICTY and ICTR, this special tribunal would not only adjudicate crimes under international law in the given situation, it would also help prepare the ground for moving international criminal justice forward – by paving the ground for the ICC to assume, in the future, its proper role in adjudicating, but preferably in preventing, the crime of aggression.’
No Impunity for the Supreme International Crime
It would be better to have such an international Special Tribunal in place to try the crime of aggression in Ukraine sooner rather than later. Hopefully, the international community will rise to the occasion and defend the international legal order for the prohibition of the use of force, save in a number of minor ways, and demonstrate that there is no impunity for the supreme international crime, aggression.
It is also important to keep in mind that the Russia-Ukraine War is only one of many armed conflicts that are taking place in the world now and that what is also necessary is to ensure that other crimes of aggression are also addressed and that those who are responsible for aggression in these many other wars and armed conflicts are also brought to justice. No one is above the law, whether they are heads of State, State officials, or anti-State rebel forces, insurgents, guerrilla forces, secessionists, or separatists. It should be noted that the right of peoples to self-determination has also been interpreted as a possible exception to the prohibition of the use of force. For instance, there is UNGA Resolution 2105, (XX), 20 December 1965, and the International Covenant on Civil and Political Rights, Article 1, as well as the International Covenant on Economic, Social, and Cultural Rights, Article 1. Nonetheless, non-violent protest has proved to be more effective than organised violence to effect change.
There is a human right to peace and those who breach this most fundamental and essential human right, on which all other human rights are dependent, must be brought to justice. By doing so we can help to realise the human right to peace and to advance a perpetual or sustaining world peace and in the process eliminate, hopefully, the core serious international crimes as well as mass forced displacement that are principally the consequences of the utter devastation, death, turmoil, and trauma that is perpetrated by war or armed conflict.
Dr James C. Simeon is a Professor at the School of Public Policy and Administration, Faculty of Liberal Arts & Professional Studies, York University, Toronto. His research interests are in International Refugee Law, International Human Rights Law, International Humanitarian Law, and International Criminal Law. He is a non-resident member of King’s College and a Life Member of Clare Hall, University of Cambridge.