With the rising number of victims of civilians and damage to civil objects, there is a growing demand to bring actions not only against the Russian Federation as a State but also against Vladimir Putin and responsible commanders as individual persons. The International Criminal Court (ICC) was established by the 1998 Rome Statute of the International Criminal Court (Rome Statute) and began sittings in 2002. Under Art. 1, 5 Rome Statute, the ICC is competent to prosecute individuals for the most serious crimes of international concern, namely the international crimes of genocide, crimes against humanity, war crimes and, since 2010, also the crime of aggression.
1. Crime of Aggression
There is vast consent in the public discussion, views of scholars and organisations, that the Russian invasion of Ukraine constitutes aggression.[1] The ‘crime of aggression’ is defined under Art. 8 bis Rome Statute 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, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the UN Charter. ‘Act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the UN Charter, including but not limited to the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, or any annexation by the use of force of the territory of another State or part thereof.
2. Initiating Investigations
The ICC may exercise its jurisdiction according to Art. 13 ff. Rome Statute if a situation in which one or more of the crimes under Art. 5 Rome Statute appear to have been committed and that was referred to the ICC by another State, the Security Council or the Prosecutor of the ICC.[2] In the case at hand, a referral by the Security Council, of course, is highly unlikely due to the known veto power of Russia as a permanent member of the Security Council. However, by 11 March 2022, initiated by Lithuania, an unprecedented number of 41 States have referred the situation of Ukraine to the office of the Prosecutor of the ICC, Karim A. A. Khan, allowing him to immediately open an investigation and commence evidence collection. Prior to this, on 28 February 2022, Khan had already announced his decision to seek authorization to open an investigation into the situation in Ukraine.[3]
3. Jurisdiction – Weakness of the ICC
The weakness of the ICC is that it does not have universal territorial jurisdiction. Under Art. 4 (2) Rome Statute, the ICC has jurisdiction for crimes committed on the territory of State parties or on the territory of any other State by special agreement.
3.1. Crime of Aggression by Putin
Although generally the jurisdiction of the ICC would be opened if a relevant crime was committed on the territory of Ukraine, the reach of the court is limited by the Amendments to the Rome Statute with regard to the crime of aggression: the ICC can only prosecute cases of aggression, when both the attacking State and the victim State are members of the court under Art. 15 bis (5) Rome Statute. Although Ukraine is not a member State of the Rome Statute, it has twice accepted the jurisdiction of the ICC under Art. 12 (3) Rome Statute in the light of the Crimea conflict in 2015.[4] The first declaration accepted the jurisdiction of the ICC with respect to alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014; the second declaration of 8 September 2015 extended this time period on an open-ended basis, now encompassing all ongoing alleged crimes committed in the territory of Ukraine from 20 February 2014 onwards.[5] Russia, however, is not a party to the Rome Statute nor has it accepted the jurisdiction of the ICC. Vladimir Putin, therefore, cannot be prosecuted before the ICC on this ground.
The second possibility to establish jurisdiction over the crime of aggression by Putin would be through referral of the Security Council under Art. 13 (b), 15 ter Rome Statute pursuant to a resolution adopted under Chapter VII of the UN Charter.[6] This variant is unlikely for the known veto power of Russia as a permanent member of the Security Council.
3.2. Genocide, Crimes against Humanity and War Crimes
With regard to the other crimes under Art. 5 (2), 1 Rome Statute, namely genocide, crimes against humanity and war crimes, the ICC has jurisdiction if the crime is committed on the territory of a State that has accepted its jurisdiction, even when it is committed by a person who is the citizen of a State that is not a member to the Rome Statute. Due to Ukraine’s declaration of 8 September 2015, the ICC may exercise jurisdiction over and investigate any act of genocide, crime against humanity, or war crime committed on the territory of Ukraine from 20 February 2014 onwards. The ordering or inciting of the named crimes make individuals liable to prosecution. Russian commanders and troops, therefore, can be prosecuted by the ICC for genocide, crimes against humanity and war crimes, when committed during the invasion of the territory. If Russian soldiers deliberately target civilians, use disproportionate force or summarily execute prisoners, they could face charges before the ICC. With regard to the Russian president Vladimir Putin, however, it will be problematic to establish causality to tie him to the crimes of foot soldiers. No court has hitherto succeeded in doing so.
4. Outlook
Given the record of Russian force in Ukraine so far, the office of the Prosecutor of the ICC has already commenced evidence collection activities and established an online portal to this end, calling on anyone who may hold information relevant to their work to submit any evidence of crime including any platform such as social media etc.
After initiating the investigations, if there is enough reasonable ground, a warrant of arrest of a person can be issued by the Pre-Trial Chamber of the ICC under Art. 58 Rome Statute. Despite the outrage in the public of the unlawfulness of the invasion by Russia and the orders of Putin, a sudden tsunami of arrest warrants cannot be expected. The gathering of sufficient evidence is difficult and takes time; hastily formulated arrest warrants would, in the end, not serve the purpose. Due to the limited means of the ICC, it will not try to prosecute every potential offender in the case rather than the primarily responsible persons.
For Legal Measures against the Russian Federation as a State read Part 1 of this blog post along with a comprehensive conclusion on the effectiveness of international law in this conflict.
[1] https://www.latimes.com/opinion/story/2022-03-05/vladimir-putin-crime-aggression-ukraine-international-criminal-court (13.03.2022); http://opiniojuris.org/2022/02/04/a-reminder-of-the-importance-of-the-crime-of-aggression-considering-the-situation-of-russia-and-ukraine/ (13.03.2022); https://www.amnesty.org.uk/press-releases/ukraine-russias-invasion-crime-aggression-under-international-law (13.03.2022). [2]Art. 13 Rome Statute: The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. [3]ICC, Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Additional Referrals from Japan and North Macedonia; Contact portal launched for provision of information of 11.03.2022, https://www.icc-cpi.int/Pages/item.aspx?name=20220311-prosecutor-statement-ukraine (13.03.2022). [4]ICC, Press Release 08.09.2015, CC-CPI-20150908-PR1146, https://www.icc-cpi.int/Pages/item.aspx?name=pr1146 (13.03.2022). [5] https://www.icc-cpi.int/ukraine (13.03.2022). [6] https://www.icc-cpi.int/about/how-the-court-works (13.03.2022). [7] https://today.law.harvard.edu/the-ukraine-conflict-and-international-law/ [8] Dworkin, Anthony, International law and the invasion of Ukraine, 25 February 2022, https://ecfr.eu/article/international-law-and-the-invasion-of-ukraine/ (15.03.2022); Anderson, Scott R./Badore, Zachary/Bradatan, Anastasia/Herkert, Alexander/Rohini Kurup, Klehm/Lopez, Jaime/Pompilio, Katherine/Robertson, Anna-Marie/Warschefsky, Thomas G., The World Reacts to Russia’s Invasion of Ukraine, https://www.lawfareblog.com/world-reacts-russias-invasion-ukraine (15.03.2022).
