Russia’s Attack on Ukraine; A Review of the International Criminal Court’s Capacity to Examine the Crime of Aggression

Abstract

Background: 24 February 2022 shall be remembered as a day on which the international law principle prohibiting the use of force was breached once again. This incident could come under scrutiny from several different standpoints. The present study looks at this occurrence via the lens of international criminal law and the occurrence of the crime of aggression and its examination by the International Criminal Court (ICC). This study aims to analyse whether the inclusion of the crime of aggression in the ICC Statute was symbolic and practically useless or whether it could move the international community one step closer to the end of impunity. To this end, the incidence of aggression as defined by the ICC Statute will be determined after an assessment of the justifications offered by Russia. Despite the prohibition entailed in Art. 15 bis (5) of the Statute, which has led the doctrine to rule in favour of the Court’s lack of jurisdiction, a solution to this impasse must be sought.

Methods: This paper uses doctrinal methods, and its dominant theoretical perspective is positivism. It relies on an accurate description and analysis of Russia’s invasion as aggression and the capacity of the court to deal with it. The authors has attempted to collect as much pertinent data as possible, analyse the same, and review the applicable and relevant legal instruments and literature. Other publications on this subject matter accepted the inability of the ICC to prosecute the Russian aggression. The novelty of this paper is its search for the few loopholes in the rules and judgments of the ICC to investigate this crime in Ukraine. As a result, recommendations are made to stop Russia’s wrongdoing while also offering suggestions and answers. This would ultimately result in the protection of international law and the preservation of Ukrainian territory.

Conclusions and Recommendations: The Russian claims, namely, anticipatory and collective self-defence, humanitarian intervention, and intervention by invitation, cannot face the crucible of international law norms, and, as such, the attack is a flagrant violation of the UN Charter. Thereafter, the exercise of jurisdiction seemed challenging, bearing in mind that Russia and Ukraine are not members of the IC, that the situation was not referred to the Security Council, and that the declaration issued by Ukraine accepting the Court’s jurisdiction entailed a number of limitations (being restricted to crimes against humanity and war crime). Nonetheless, a case could be made that the Court has some capacity to engage with the question of an act of aggression based on a study of the Court’s jurisprudence regarding such declarations and the Trial Chamber’s interpretation of the phrase ‘occurrence of crime in the territory of the State Party’, affirming a positive interpretation of Art. 15 bis (5) and confirming the possibility for the presence of Ukrainian secessionists in the decision to attack.

According to the authors, the following recommendations merit attention: 1) the necessity of a teleological interpretation of the Statute’s articles by the Prosecutor and the Member States Assembly’s solemn efforts to amend and deal with jurisdictional burdens in the Court’s competence to entertain the crime of aggression; 2) reviewing the possibility of establishing an ad hoc or hybrid tribunal via an agreement between Ukraine and the UN; 3) consistent state practice in not recognising the auto-proclaimed governments at Donetsk and Luhansk; 4) establishing Russia’s civil liability and the payment of proper compensation by the same.