Ukrainian Marines drive a T-80 tank across a thawing field on February 15, 2023 in the Donbass region of eastern Ukraine. Russian forces have been attacking Ukrainian troops all across the country's east in a winter offensive.
Ukrainian Marines drive a T-80 tank across a thawing field on February 15, 2023 in the Donbass region of eastern Ukraine. Russian forces have been attacking Ukrainian troops all across the country's east in a winter offensive. © John Moore/Getty Images

Prosecuting the Crime of Aggression

Some states are backing the establishment of a special court to reflect that this crime is one that impacts the global order.

Tuesday, 26 March, 2024

Support is growing for an international tribunal to prosecute the Russian leadership for the crime of aggression against Ukraine, according to Jennifer Trahan, Clinical Professor at NYU's Center for Global Affairs and director of their Concentration in International Law and Human Rights. 

This would be the best way to avoid immunity for Russia’s highest echelons, Trahan told IWPR’s Olga Golovina, explaining that to get this up and running, Ukraine would make a formal request to the UN. Once the general assembly made a recommendation, the UN and Ukraine could engage in talks to create the tribunal through a mutual treaty.  

What would be the most effective way to investigate Russian aggression in Ukraine, and why? 

The most appropriate tribunal for prosecuting the crime of aggression would be an international one.  Not only would this have the greatest legitimacy, but it would appropriately reflect that the crime is one that impacts the global order. It involves a violation of the UN charter, and thus is a matter for all UN member states.  The tribunal could be created upon the recommendation of the UN general assembly and implemented by bilateral agreement between the UN and Ukraine.  It is a shame that powerful states are standing in the way of proceeding in this direction. The international community needs to harness momentum to act and create the special tribunal for the crime of aggression {STCoA), sooner rather than later. 

Under the Rome Statute of the International Criminal Court (ICC),  the crime of aggression is a “leadership crime” (Article 8bis, para 1). That is, the offence covers only leaders who are “in a position effectively to exercise control over or to direct the political or military action of a State”. The reason for this firm limitation is that ordinary soldiers, even mid-level commanders, are not the ones who make the decision for a country to wage war.  

A hybrid tribunal within the Ukrainian court system would likely immunise top Russian leaders from accountability. 

What is the ICC’s potential role in prosecuting the crime of aggression? 

It was designed for the ICC to prosecute the crime of aggression, but currently its jurisdiction over that crime is so limited that it is very difficult for it to do so. Accordingly, even though Ukraine’s acceptance of ICC jurisdiction creates jurisdiction over genocide, war crimes and crimes against humanity committed in the territory of Ukraine, that does not encompass the crime of aggression. Because Russia is not a party to the ICC’s Rome Statute, it is completely beyond the ICC’s jurisdiction in terms of the crime of aggression. 

This is why states have now proposed an amendment to the Rome Statute to try to fix the ICC’s jurisdiction over the crime of aggression. The Global Institute for the Prevention of Aggression, the group in which I serve as convenor, has made such an amendment proposal.  Germany has formed a group of states supporting this endeavor and hopefully its work will culminate in an amendment proposal that is due for discussion and potentially adoption by ICC states parties in 2025. 

While the ICC’s work in investigating and prosecuting war crimes, crimes against humanity and – potentially - genocide is critically important, justice for the crime of aggression is not the same as justice for these other crimes. This is why a STCoA is needed, even if the ICC prosecutes Russian leadership for other core crimes. 

The ICC issued an arrest warrant for Putin for the deportation of Ukrainian children. For what other war crimes can the Russian political and military elite be prosecuted? 

Additional warrants have issued since the warrants for the deportation of Ukrainian children.  The ICC has issued two for war crimes and crimes against humanity related to missile strikes against Ukrainian electrical infrastructure. 

The ICC has broad jurisdiction over war crimes. I cannot predict which ones the court will proceed against in the future, but in general it is most likely to focus on the highest level perpetrators, the worst crime scenes and cases where it has solid proof. The ICC also has jurisdiction over crimes against humanity and could issue additional charges for that crime as well. 

Trials in absentia are legal in Ukraine. But most international lawyers believe that such courts have dubious legitimacy; why? 

It is simply not the legal tradition of many countries to have trials in absentia. These countries essentially see trials in absentia as a form of human rights or due process violation. At the international level, the only tribunal of an international or hybrid nature to have such trials in absentia was the Special Tribunal for Lebanon, which was not necessarily well regarded, at least in that respect. 

However, even without trials in absentia, some evidence can be entered into the record absent the presence of the accused. This could be done at the stage of confirmation of charges, or to preserve evidence. This would not, however, result in a conviction. 

To me, even the issuance of a warrant or indictment is incredibly significant. Justice sometimes takes time, but I am confident it will come. 

Why do you think it is important to investigate war crimes committed by both sides of the conflict? 

Justice cannot be one-sided. If Ukrainians have committed war crimes, it will be important to investigate those cases as well and, if appropriate, issue charges.  One cannot have justice that is biased as the rule of law must be respected on both sides. One cannot make an assumption that only Russians deserve to be prosecuted. 

I don’t quite understand why Ukraine has not ratified the Rome Statute. It should do so. Potentially Ukraine received poor advice that to do so would subject Ukrainians to the ICC’s jurisdiction, but the truth is that Ukraine, having accepted the ICC jurisdiction, has already created that exposure. Thus, there is no reason Ukraine should not ratify, and furthermore, ratifying would express strong support for the rule of law and the ICC. 

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