(Ця стаття також доступна українською мовою тут.)

One week after the invasion of Ukraine by forces of the Russian Federation, and following Russia’s veto of a proposed United Nations Security Council resolution on the matter, the General Assembly of the United Nations voted overwhelmingly in favor of a resolution condemning “Aggression against Ukraine.” The General Assembly invoked the 1950 “Uniting for peace” resolution, according to which the Assembly can act where a lack of unanimity in the Security Council prevents it from “exercising its primary role for the maintenance of international peace and security.” Recalling also its previous resolutions on aggression, the General Assembly was unequivocal in its condemnation: deploring “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter,” demanding an end to the use of force, and calling for immediate, complete and unconditional withdrawal of Russian forces from Ukraine.

The “Uniting for peace” resolution envisages that the General Assembly can effectively step in where the Security Council fails to act “with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.” The resolution condemning Russia’s aggression against Ukraine does not make any such recommendations, but prompts reflection about the role of the General Assembly in relation to breaches of the peace and acts of aggression, especially on the part of the permanent members of the Security Council. Here, I argue that the General Assembly should have the power to refer situations involving aggression to the International Criminal Court.

The International Criminal Court

The International Criminal Court (ICC) has been involved in Ukraine since the Article 12(3) declaration by Ukraine in 2014, giving the ICC jurisdiction over events within its territory from November 2013 onward. And in a remarkable development, 39 States referred the current situation in Ukraine to the ICC on March 1, 2022, allowing the prosecutor to open an investigation without requiring permission from the Pre-Trial Chamber. Upon announcing the opening of an investigation, Prosecutor Karim Khan vowed to remain focused on the core objective of “ensuring accountability for crimes falling within the ICC jurisdiction.” Such jurisdiction in the context of Ukraine includes genocide, crimes against humanity, and war crimes, but presently excludes the crime of aggression. While the Court’s jurisdiction over the crime of aggression has been activated since 2018, it can only be exercised where both the victim and the perpetrator State have ratified the aggression amendments as agreed in Kampala in 2010. The exception is where a situation is referred to the Court “by the Security Council acting under Chapter VII of the Charter of the United Nations.”

A Security Council referral to the ICC is inconceivable in the context of Ukraine, owing to the Russian veto – as would be the case in any current or future situation involving aggression by one of the five permanent members of the Council and perhaps even their close allies. A proposal has been made by a number of eminent scholars and practitioners for the creation of a Special Tribunal to prosecute the crime of aggression in Ukraine, given the absence of jurisdiction for the ICC. However, there are considerable legal barriers and other serious objections which militate against this, as Kevin Jon Heller has addressed in some detail (and to which Tom Dannenbaum and Carrie McDougall have provided thoughtful responses).  Jennifer Trahan has discussed how the General Assembly might recommend the creation a hybrid criminal tribunal for aggression by way of an agreement between Ukraine and the United Nations. It’s also possible that domestic courts might prosecute the crime of aggression in the context of Ukraine, even if not straightforward.

The Role of the General Assembly

I would like to add another suggestion, also made by Adil Haque, that the Rome Statute could be amended to allow the General Assembly, acting under the “Uniting for peace” resolution, to make referrals to the ICC in order to provide accountability for the crime of aggression in the context of Ukraine. “Uniting for peace” is somewhat open-ended in terms of the measures that the General Assembly might recommend. The question of whether the General Assembly can refer situations to the Court, as Fergal Gaynor has explored, depends on whether the powers of the General Assembly under the United Nations Charter allow it to do so, and would also require an amendment to the Rome Statute, which in its current form does not envisage the Court receiving referrals other than from States parties or the Security Council.

At present, Article 13 does not provide for a mechanism for the Court to receive referrals from the General Assembly – it envisions only referrals from State Parties or the Security Council, or for the Prosecutor’s initiation of an investigation proprio motu. For the ICC to be in a position to accept a referral by the General Assembly, Article 13 and other relevant articles of the Rome Statute would thus have to be amended, while an additional article might need to be inserted, modelled on Article 15ter which addresses the exercise of jurisdiction over aggression pursuant to a Security Council referral. Gaynor’s view is that General Assembly referrals should be additional to the existing Security Council referral powers, such that the Council would retain its deferral powers under Article 16, as well as “exclusive competence over the crime of aggression under Articles 15bis and 15ter.” But retaining specific Security Council powers under those provisions need not be incompatible with allowing General Assembly referrals.

That the General Assembly might have a role in referring situations to the ICC, including instances of aggression, is not a recent idea. In the early 1990s, the International Law Commission debated whether the General Assembly or the Security Council should have a determinative role in cases coming before the proposed ICC:

In the opinion of some, it should be the General Assembly, since abuse of the veto in the Security Council could paralyse the court. On the other hand, the General Assembly, by an absolute majority or a qualified, two-thirds majority, could provide a guarantee against improper complaints as well as against abuse of the veto.

The Commission left the matter unresolved, but noted the broad acceptance that the Security Council should be allowed to refer situations to the Court and that there were “different views” on whether the General Assembly should have such a role.

During the 1998 Rome Conference, several States not only emphasized that the General Assembly had a recognized role in the maintenance of peace and security and in determining that an act of aggression had been committed, but also argued that it should be allowed to refer situations to the Court. States that spoke in support of a role for the General Assembly in relation to having the Court address the crime of aggression included Mexico, Syria, Cuba, Iran, Nigeria, Trinidad and Tobago, Jamaica, Sudan, Vietnam, Benin, Algeria, Yemen, Spain, Ethiopia, the United Arab Emirates, and Bolivia. Egypt argued specifically that the General Assembly “must be able to trigger the action of the Court” if the Security Council failed to decide that an act of aggression had been committed on account of a veto by one of the permanent members. Thailand explicitly advocated for consideration of the role of the General Assembly under the “Uniting for Peace” resolution, as did the representative of Oman. The United States’ view, however, was that “the General Assembly was not equivalent to the Security Council as far as the Council’s responsibilities under the Charter were concerned.”

Notwithstanding these supportive statements from some States during its drafting, the Rome Statute does not include the General Assembly as a source for referrals to the Court. Nor was the Court initially allowed to exercise jurisdiction over the crime of aggression. When the definition of the crime of aggression and the conditions for the exercise of jurisdiction over the offence were being negotiated in Kampala in 2010, the potential for referrals by the General Assembly was raised, but the agreed amendments to the Rome Statue do not include such a mechanism.

Amending the Rome Statute

Aggression has yet to be prosecuted at the ICC and at present there are just 43 parties to the aggression amendments to the Rome Statute. But of the 39 States that referred the situation in Ukraine to the Court, 23 of those have ratified the aggression amendments (including half a dozen who share a land border with Russia). Such numbers provide a healthy initial basis for commencing the process of amending the Rome Statute to allow for General Assembly referrals in future situations.

Amending the Rome Statute is a complex endeavor. Proposed amendments require the consensus of the Assembly of States Parties or a two-thirds majority. Accordingly, at least 82 States parties would need to support the adoption of an amendment allowing General Assembly referral of situations based on the current number of States parties, and an even higher number, seven-eighths of all States parties, would be needed for the amendment to enter into force following ratification or acceptance. No doubt a number of the 141 States that voted in favor of the General Assembly resolution to condemn Russia’s aggression of Ukraine would baulk at the idea that the Assembly could refer situations to the ICC, not least France and the United Kingdom, but equally many others from the Global South will have grown weary of the concentration of power within the Security Council and the limited representativeness in its decision-making and thus might support the proposal. South Africa has already proposed an amendment to the Rome Statute to allow the General Assembly to have deferral powers under Article 16 when acting pursuant to the “Uniting for peace” resolution.

In light of the events in Ukraine, States parties may well agree to support an amendment allowing General Assembly referrals. If so, they should also signal their commitment to accountability for aggression by agreeing to be bound by the Kampala amendments, though they could of course support a referral amendment without ratifying the amendments. All 123 parties to the Rome Statute already accept the role of the Security Council in referring situations to the Court notwithstanding that three of the permanent five members are not parties to the Rome Statute (and none of the permanent members have ratified the aggression amendments). It also bears noting that of the States which expressed support for a role for the General Assembly during the Rome Conference, only a few are parties to the Rome Statute.

Of course, if the Rome State was successfully amended, General Assembly referrals would require the Court to contend with legal issues such as the immunity of heads of State of non-State parties and the principle of legality in relation to the crime of aggression. In the context of Ukraine, as is often the case with referrals more generally, questions would also arise regarding temporal jurisdiction: would jurisdiction over aggression arise from the time of a future General Assembly referral (when Russian aggression may still conceivably be underway), from July 2018 when the ICC’s jurisdiction over aggression was activated, or from the time of Ukraine’s Article 12(3) declaration in 2014, when aggression was a crime within the jurisdiction of the Court, albeit without active jurisdiction? That would be for the Court to decide, bearing in mind the occasional resort to judicial creativity which we have seen, notwithstanding the apparent strictures of the principle of legality.

Aggression by the Permanent Members of the Security Council and ICC Legitimacy

The permanent members of the Security Council, amongst whom are the largest and most powerful militaries in the world, have sought to insulate their leaders from accountability for the crime of aggression, whether by remaining outside the ICC, failing to ratify the aggression amendments to the Rome Statute, or banking on their veto power to block any potential referral to the Court.

There have been devastating consequences arising from the wars of aggression launched by permanent members of the Security Council including for example the war launched against Iraq in 2003 by the United States and the United Kingdom, and of course the current invasion and attack on Ukraine by the Russian Federation. Future aggressive uses of force by Security Council members may be similarly damaging. Russia’s invasion of Ukraine has prompted discussion of the legitimacy and indeed the future role of the Security Council. If we are indeed seeing “[t]he end of the Security Council,” as Elvira Dominguez Redondo has put it, then the role of the General Assembly needs to be reconsidered.

Empowering the General Assembly to refer situations to the ICC may not prevent aggression in the future, but it would serve to reinforce the norm prohibiting the unlawful use of force.  It would also give leaders pause as to the individual risks they may face for such actions, and it would allow for a more representative body to have a say in how such crimes are addressed.

Allowing for General Assembly referrals to the ICC could also enhance the legitimacy of the Court. Its selectivity to date has seen all of those charged or tried before the Court coming from Africa, even if there are a handful of ongoing investigations beyond the continent (the Prosecutor has just filed an application for arrests warrants for the situation in Georgia). The Security Council has contributed to this focus by referring the situations in Libya and Sudan and blocking a referral of the situation in Syria. The threat of General Assembly referrals might act as a check on the use of force by permanent members of the Security Council or their allies, and where it fails to deter them, it could provide a vehicle for accountability of the perpetrators of “the supreme international crime,” as the judges at Nuremberg famously put it.

Finally, the eventual application of the Rome Statute to the crime of aggression, whether via the proposed referrals by the General Assembly or otherwise, should allow for recognition that the victims of aggression are not only States, but also, and most viscerally, people. International law has largely treated the State as the primary victim of aggression. Natural persons, as Erin Pobjie first discussed, would be entitled to have their voices heard in proceedings before the ICC and to receive reparations in the event of a successful conviction for the crime of aggression.

Amending the Statute and garnering sufficient ratifications for the amendment to enter force will require time and sufficient political will, but in contrast to the proposal for a Special Tribunal or a hybrid tribunal, the ICC has the advantage of already existing, and having garnered two decades of experience in the investigation and prosecution of international crimes, even if its record is imperfect. Additional resources would certainly be helpful, but not perhaps of the order needed for a new ad hoc tribunal. The next planned meeting of the Assembly of States Parties is not until December 2022, but it can hold special sessions “when circumstances so require.”

Prosecuting the crime of aggression will bring the Court into new territory, but it may even prove somewhat easier to prosecute in the context of Russia compared with certain war crimes occurring during the conduct of hostilities, which have proved difficult subject matter for criminal liability. Perhaps most importantly, allowing for referrals by the General Assembly would not be a one-off initiative in international criminal law. Rather, it would mark a permanent change to the accountability landscape. While it may be easier to get a bonus rather than a raise, as the saying goes, the latter is surely the more desirable long-term.

Image: March 2, 2022. Representatives applaud as the United Nations General Assembly overwhelmingly adopt a resolution demanding that Russia immediately end its military operations in Ukraine. A total of 141 countries voted in favor of the resolution, which reaffirms Ukrainian sovereignty, independence, and territorial integrity. Photo credit: UN Photo/Loey Felipe