The International Criminal Court’s path forward in the prosecution of crimes of aggression.
The outside of the International Criminal Court headquarters in the Hague, Netherlands.[1]
Since the outset of the war between Russia and Ukraine, there has been a debate on the role the International Criminal Court (“ICC”) should play in holding individuals responsible for criminal behavior, while also prosecuting for crimes of aggression.[2] Though the initial debate focused primarily on whether to implement a tribunal at all, the focus has shifted to determining how to properly structure these tribunals. The two main options include: (1) a tribunal created by a bilateral treaty between both the United Nations on the recommendation by the U.N. General Assembly and Ukraine; and (2) a “hybrid” form or “internalized” tribunal that combines both domestic and international components.[3] Before identifying the best tribunal model, it is important to note that the Rome Statute, as the source ICC’s legal authority, does not currently permit the Court to prosecute crimes of aggression arising out of the war between Russia and Ukraine.[4] For the Court to do so, a member state must amend the Statute by proposing an amendment at least seven years after its adoption.[5]
Article 8 states that a “crime of aggression” occurs when a state uses its armed forces against “the sovereignty, territorial integrity, or political independence of another state.”[6] Article 8bis, defines the “crime of aggression” 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.”[7] Based on Article 8, the ICC appears to have the authority to prosecute any state, however, there is a gap in jurisdiction when it comes to crimes of aggression. The jurisdictional issue arose out of the Kampala Review Conference in 2010, where member states of the ICC amended Article 15 of the Rome Statute.[8] Paragraph 5 of Article 15bisstates that “in respect of a state that is not 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.”[9] Because Russia is not a state party to the Rome Statute, the ICC does not have jurisdiction to prosecute crimes of aggression by Russian nationals in Ukraine.[10] Although Ukraine has not fully acceded the Rome Statute, it has given the ICC authority to prosecute other crimes through Article 12(3), which allows a country to “accept the exercise of jurisdiction by the court with respect to the crime in question.”[11] However, a full ratification of the Rome Statute would not change the ICC’s lack of jurisdiction to prosecute crimes of aggression on behalf of Russia or any country that has not adopted the statute.
Those supporting the creation of an international tribunal, including Ukraine and its Eastern European allies, suggest that a treaty between Ukraine and the United Nations would be the best form of tribunal.[12] They argue that if a special international tribunal is not based on the domestic jurisdiction of Ukraine, it would not have to formally recognize the immunities of Russian leadership as the ICC would.[13] An international tribunal could issue arrest warrants for Russian leadership for crimes of aggression assuming it could obtain custody of those officials.[14] Supporters of a hybrid tribunal model based on the jurisdiction of a third state argue that the hybrid model would get around the Ukrainian Constitution’s prohibition on the creation of such an institution during war time.[15] One of the supporters, U.S. Ambassador at Large for Criminal Justice Beth Van Schaack, accentuates that a hybrid tribunal model will strengthen the institutional development of Ukraine’s Justice System.[16]
Though the makeup of the final tribunal is far from decided, and the war is ongoing, it will be interesting to monitor what role the ICC and special tribunal will play regarding the prosecution of crimes of aggression and other crimes of war in the months and years ahead.
[1] Photo: Lauren Sanders, Accountability and Ukraine: Hurdles to Prosecuting War Crimes and Aggression, Lieber Institute West Point (Mar. 9, 2022), https://lieber.westpoint.edu/accountability-ukraine-hurdles-prosecuting-war-crimes-aggression/. [2] Jennifer Trahan, The Need for an International Tribunal on the Crime of Aggression Regarding the Situation in Ukraine, 46 Fordham Int'l L.J. 671, 676. (2023). [3] Patryk I. Labuda, Making Counter-Hegemonic International Law: Should A Special Tribunal for Aggression Be International or Hybrid?, Just Security (September 19, 2023), https://www.justsecurity.org/88373/making-counter-hegemonic-international-law-should-a-special-tribunal-for-aggression-be-international-or-hybrid/. [4] See Trahan, supra note 2, at 676. [5] Rome Statute of the International Criminal Court (last amended 2010), U.N. Gen. Assembly (July 17, 1998) [hereinafter Rome Statute], https://www.refworld.org/docid/3ae6b3a84.html. [6] Id. at Art. 8(2). [7] Id. at Art. 8(1). [8] See Trahan, supra note 2, at 679. [9] Rome Statute, supra note 5, at art. 15bis(5). [10] See Rome Statute of the International Criminal Court, U.N. Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-10&chapter=18&clang=_en (last updated Sep. 22, 2023). [11] Rome Statute, supra note 5, at Art. 12(3). [12] See Labuda, supra note 3. [13] Id. [14] Id. [15] Id. [16] Id.
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