(Ця стаття також доступна українською мовою тут.)

As calls mount for accountability not only for war crimes being committed in the territory of Ukraine, but also for Russia’s Feb. 24, 2022 invasion (and possibly 2014 annexation of Crimea), one thing has become obvious:  the International Criminal Court (ICC) lacks jurisdiction to investigate or prosecute the crime of aggression in this situation.  Indeed, it would also lack jurisdiction in many other situations, due to the crime of aggression having a far more restrictive jurisdictional regime than that of the ICC’s other crimes—genocide, crimes against humanity, and war crimes.

Perhaps some kind of ad hoc approach to prosecuting the crime of aggression in the current situation will be possible (and there is both a strong, multilateral proposal, as well as another, much weaker and problematic option being suggested—see my earlier post).  Yet, all such efforts raise at least some concerns of selective justice.  What is needed in the long run is for States Parties to the ICC’s Rome Statute to amend the crime of aggression’s jurisdictional regime and create more jurisdiction in support of the core norm in the U.N. Charter against the aggressive use of force, Article 2(4).

Individual experts who are members of the Global Institute for the Prevention of Aggression have recently made a call for States Parties to do just that (see here), joined by the group’s President Emeritus, former Nuremberg Prosecutor Benjamin B. Ferencz.

How did this jurisdictional gap occur?

Most readers will know that the original version of the Rome Statute, in Article 5(2) (since agreed to be deleted, see resolution of the States Parties), permitted the crime of aggression to have a different jurisdictional regime than that of the Rome Statute’s other crimes.  This came to pass as a result of negotiations held after the original Rome Conference.

The final negotiations on the crime of aggression’s jurisdiction occurred in 2010 at the Review Conference in Kampala, Uganda, with the U.S. delegation (and others) insisting that the nationals of, and crimes committed on the territories of, States not parties to the ICC’s Rome Statute be completely carved out of the crime of aggression’s jurisdiction before the ICC.  Despite strenuous efforts by many States against this position —which was insisted on by the US delegation — it was adopted and is now Rome Statute Article 15bis(5).  That amendment is what now insulates Russian military and political leaders from being investigated and/or prosecuted for the crime of aggression before the ICC.

In 2017, the U.K. and France insisted on further narrowing the jurisdictional regime in negotiations that led to the activation of the ICC’s jurisdiction over the crime.  Simplistically put, most States left the Kampala Review Conference believing that States Parties were “in” the jurisdictional regime unless they “opted out” (hence, the “opt out” provision in Rome Statute Article 15bis(4)).  France and the U.K. (with several other States joining) developed a new reading by 2017:  all States Parties were “out” of the jurisdictional regime, unless they “opted in” by ratifying the crime of aggression amendment.  (Were that the correct reading, one might wonder why States Parties negotiated the “opt out” clause.)  Nevertheless, the French/U.K. reading is embodied in the resolution that activated the crime’s jurisdictional regime (see 2017 activating resolution), although some question the efficacy of the modification (see here).

All these amendments are at odds with the basic jurisdictional principle that would otherwise permit investigation and prosecution of a crime where at least one element of the crime occurs on the territory of a State Party (or State that has executed an Article 12(3) declaration accepting the Court’s jurisdiction).  That is the rule that applies to the ICC’s other crimes (as ruled in the Bangladesh situation.  Were that rule currently applicable to aggression, Ukraine’s acceptance of ICC jurisdiction (see Article 12(3) declarations) could have created jurisdiction also over that crime.  And, of course, were the Security Council not paralyzed by Russia’s veto power, it might refer the situation in Ukraine—including the crime of aggression—to the ICC for investigation and/or prosecution.

But we are where we are. We have a definition that was negotiated by all States (not just States Parties), and that was adopted in Kampala by all States Parties by consensus.  And, to date, 43 States Parties have ratified the crime of aggression amendments.  While this is a good indication of where the law is heading, more needs to be done to ensure accountability for the crime of aggression—which, at Nuremberg, was called “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole” (Nuremberg judgment, at 427).

States Parties should ratify the crime of aggression amendment

The key question now comes down to:  do States only believe in the crime of aggression when Russia (and Belarus) violate the U.N. Charter?  Or do they stand behind the crime of aggression more broadly—that is, that Article 2(4) of the UN Charter should be enforced?

The idea behind the crime of aggression (defined in Rome Statute Article 8bis) is both quite simple and extremely ambitious:  to deter use of force contrary to the U.N. Charter, and be in a position to prosecute political or military leaders who commit the crime should deterrence fail.  The definition draws heavily from both the language of Article 2(4) of the U.N. Charter, as well as General Assembly resolution 3314 (1974).  Because the definition of the crime only covers acts of aggression that are also “manifest” violations of the U.N. Charter (see Rome Statute, Article 8bis(1)), it excludes cases in a “grey area” of legality.  Russia’s invasion does not fall into such a “grey area” (see James A. Green, Christian Henderson, and Tom Ruys (all of Russia’s jus ad bellum claims fail, most of them on multiple levels)), but other debatable situations might.  In this way, the definition is actually rather conservative.

While it will admittedly not create jurisdiction in the instant situation, States Parties that have not yet done so should promptly ratify the crime of aggression amendment.  In doing so, they would both support the rule of law, and, specifically, enforcement of the crime of aggression.  As Ukraine has been effectively harnessing the rule of law by instituting proceedings against Russia at the International Court of Justice (ICJ) and in many other ways, States Parties should follow suit.

States Parties should reopen negotiations on the crime of aggression’s jurisdiction

The other clear item of business for Rome Statute States Parties is to heed the call by the distinguished group of experts who are also members of the Global Institute for the Prevention of Aggression to reopen the crime of aggression’s jurisdictional regime and fix it going forward.  (See here; translations available here.)

At the 2010 Review Conference, States Parties agreed to review the crime of aggression “seven years after the beginning of the Court’s exercise of jurisdiction” (see Resolution RC/Res.6!, para. (4)). Because the exercise of jurisdiction commenced July 2018, the review is set for 2025.  But States should not (and need not) wait until then to reconsider the jurisdictional limitations. They should expeditiously begin the process now.

Some national jurisdictions have already opened crime of aggression investigations (e.g., Lithuania, Poland, and Ukraine); yet, at least in the ICC definition, the crime is a “leadership crime,” meaning it would only cover high level-political or military leaders (see Rome Statute Article 8bis(1)).  Yet, these are the very persons who may well be immune from prosecution at the national level under the ICJ’s Yerodia decision.  Thus, national proceedings are somewhat inherently ill-suited for pursuing this crime.

States that are vociferously denouncing Russia’s invasion should show their support for enforcement of the prohibition against aggressive use of force contained in the U.N. Charter.  States not yet parties to the ICC’s Rome Statute can do this by ratifying the amended version of the Statute which includes the crime of aggression.  States Parties can do this by ratifying the crime of aggression amendment (if they have not yet done so) and opening negotiations to fix the crime of aggression’s jurisdictional regime.

Image: Den Haag, NETHERLANDS: People enter the International Criminal Court, 20 June 2006 in the Hague. (Photo by JUAN VRIJDAG/AFP via Getty Images)