Image description: The exterior of the International Criminal Court

Russia’s invasion of Ukraine – and its ongoing use of force – is a textbook example of the crime of aggression.

The crime of aggression is defined under Article 8bis (1) of the Rome Statute of the International Criminal Court as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’ Paragraph (2) provides an illustrative list of acts that meet the definition of an ‘act of aggression’.

While the definition leaves room for considerable debate in relation to its exact contours, it is beyond doubt that Russia’s use of force against Ukraine is an act of aggression that constitutes a manifest violation of the UN Charter, as emphatically declared by the General Assembly, and as detailed in any number of legal analyses, such as those here, here and here.

It is equally clear that President Putin has almost total control over the political and military action of Russia, and thus meets the leadership qualifier built into the crime’s definition.

As the days tick by, there is mounting evidence that war crimes, and likely also crimes against humanity, are being committed by Russian Armed Forces. While leaders like Putin once enjoyed impunity for such crimes, international criminal law has developed the ability to hold puppet-masters to account. But establishing the individual criminal responsibility of ‘those most responsible’ for crimes committed in the field is a complex and difficult process. In some ways, the most egregious wrong committed by Putin is launching the war, not only because it has led to the commission of other serious international crimes, but also because the action strikes at the heart of the international order.

For this reason, much attention is currently focused on whether Putin could be prosecuted for the crime of aggression.

The ICC Lacks Jurisdiction

As a result of Ukraine’s acceptance of the ICC’s jurisdiction through two separate Article 12(3) declarations, the situation in Ukraine has been under preliminary examination since April 2014.

Following Russia’s invasion of Ukraine, the Prosecutor announced that he would move to seek authorisation to open an investigation but noted that things could be expedited if a State Party referred the situation to the Court. That invitation was responded to by 39 States, who took the necessary action to bypass the need for Pre-Trial Chamber authorisation, meaning that an investigation has now been opened. States are rallying to support the Court in its endeavours, and an advance team of investigators has reportedly been deployed to the region to commence investigations.

As the Prosecutor has made clear, the ICC has jurisdiction over any war crimes, crimes against humanity or genocide committed on Ukraine’s territory – but it does not have jurisdiction over the crime of aggression. This is because the crime of aggression amendments to the Rome Statute, adopted in 2010 and activated in late 2017 with effect from 17 July 2018, include a special jurisdictional regime – a compromise insisted upon by the Permanent Five Members of the UNSC to which ICC States Parties reluctantly agreed as the price paid for agreement on the amendments.

Those jurisdictional provisions are complex, but one aspect of them is crystal clear: any crime of aggression involving a non-State Party as either victim or aggressor is excluded from the jurisdiction of the Court, except in the case of UNSC referral. As such, any ratification of the Statute and the aggression amendments by Ukraine would not change the calculus. Absent regime change in Russia that results in the denunciation or scapegoating of Putin, the UNSC route is a dead end because of the inevitable Russian veto.

While an amendment of the Rome Statute to remove jurisdictional impediments would be ideal, the Statute’s amendment provisions are clunky, and, unfortunately, there is a real question as to whether there would be sufficient political support for such a move.

For this reason, attention is currently focused on alternative paths to prosecution, as described in Part Two of this post.