The challenges that the ICC Prosecutor may face in presenting charges on the crime of aggression in the Russia-Ukraine situation
By: Farouk Sulaiman Taiwo Adedoyin.
LLB HONS (USL), BL Candidate, Sierra Leone Law School.
The crime of aggression presupposes that an aggressive act has been committed by a State.1 Russia’s pernicious attack on Ukraine, violates the most sacred principle in international law, being the territorial integrity and political independence of all states. International law is crystal clear and absolute: a state is prohibited from the use or threat of force against another state; every such use, regardless of gravity or aims, constitutes a violation. Ellis have argued that generally, there are only two significant exceptions to this principle:
“When the state acts in self-defence or acts pursuant to a UN Security Council resolution. Neither of these applies to Russia’s actions against Ukraine.”
So, if Russia was acting against attacks initiated by Ukraine, then it’s permissible for Russia to respond to those attacks in self-defence. But that is not the situation we are witnessing. The other exception is when the United Nations Security Council (hereafter referred to as UNSC), authorizes the use of force. The Security Council has not done so. Thus, Russia’s military intervention into Ukraine is allegedly a direct and egregious violation of one of the most sacred principles of international law. In response to the above positions, Russia has attempted to justify its military intervention by suggesting that it needs to liberate Ukrainians, and particularly Russophone Ukrainians, from a “fascist, genocidal regime”. From the foregoing, the critical question under international law is whether Russia can be held accountable for its military attack on Ukraine, which is the focus of this research paper.
1.1. Proving the Crime of Aggression: The Essential Elements
Under the court’s founding treaty, the Rome Statute, the crime of aggression is defined 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 charter of the United Nations”.
The crime of aggression or ‘crime against peace’ as it was referred to by the Nuremberg Tribunal, is committed by a leader or policy-maker of a State who participates in an act of aggression carried out by the State. Under this definition, Ellis argued that Putin would be found guilty within seconds.3 The prevention of acts of aggression is one of the primary purposes of the United Nations. The crime of aggression differs from all other crimes in being inextricably linked to an unlawful act of a State against another State.
a. Proving the Guilty Act/Physical Element (Actus Reus) of the Crime of Aggression
An ‘act of aggression’ (the actus reus) on the other hand is defined as:
“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 Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall in accordance with the United Nations General Assembly Resolution 3314(XX1X) of 14 December 1974, qualify as an act of aggression."
The offence can be committed, irrespective of war being declared, where any of the following acts are committed [pursuant to Article 8(3) bis of the Rome Statute]: invasion, bombardment, and annexation of another State’s territory, attack on another State’s armed forces, and sending armed groups which commit aggressive acts against another State.
Of note therefore, the crime of aggression can be said to protect State sovereignty by punishing attacks on States, but also to encroach on sovereignty by going behind the State to make individual leaders directly accountable under international law.
b. Proving the Mental Element (Mens Rea) of the Crime of Aggression
The amendments to the ICC Elements of Crimes adopted at the Kampala Review Conference include two mental elements, Elements 4 and 6. Element 4 requires that the perpetrator is aware of the factual circumstances establishing the inconsistency of the use of armed force by the State with the Charter of the United Nations. Element 6 requires that the perpetrator is aware of the factual circumstances establishing the manifest violation of the Charter.
However, the above foundation of proving the essential elements of the crime of aggression allegedly perpetrated by the Russian Federation can only be possible if there are no potential challenges that the ICC Prosecutor may face in presenting charges on the crime of aggression in the Russia-Ukraine situation. Therefore, the potential challenges will be juristically discussed below.
2. The Potential Challenges That the ICC Prosecutor May Face in Presenting Charges on The Crime of Aggression in The Russia Ukraine Situation.
The Office of the ICC Prosecutor is an independent organ responsible for initiating and carrying out investigations and prosecutions where there is a reasonable basis to believe that crimes within the jurisdiction of the ICC have been committed, as encapsulated in Article 53 of the Rome Statute. The Prosecutor, whose role is critical as the main driver of the ICC process, is appointed for a non-renewable nine-year term in accordance with Article 42(4) of the Rome Statute. Currently, the Russia- Ukraine situation is testing the ICC as never before. Managing something the size and scale of the investigation the Chief Prosecutor must undertake in Ukraine will be a severe test which if passed may establish the ICC as the institution it was hoped it would be when it was conceived and increase its worldwide prestige and support. If it fails, it will likely be condemned as irrelevant; good for Africa perhaps, but impotent in cases involving systematic war crimes by a more powerful state. A global order based on respect for international humanitarian law cannot be built on that foundation. Having laid down this premise, this research paper seeks to discuss the potential challenges that the Office of The Prosecutor may face in presenting a charge on the crime of aggression in the Russia-Ukraine situation under the following headings.
2.1.Russia Is Not a State Party to The Rome Statute
The first hurdle or challenge that the ICC Prosecutor may face in presenting charges on the crime of aggression by Russia through its violation of Ukraine’s territorial integrity bothers on the fact that the Russian Federation has not acceded to the Rome Statute and thus does not fall under its jurisdiction to be charged for the crime of aggression. Thus, it goes to show that Russia’s crime of aggression against Ukraine cannot be heard by the court because of statutory limitations. That notwithstanding, in March of 2022, the ICC confirmed it could exert its jurisdiction over the territory of Ukraine and, by extension, over acts by Russian troops and Putin, even though Russia is not a signatory. This is founded on the basis that in 2014, Ukraine has accepted the ad hoc jurisdiction of the Court by lodging two Article 12(3) declarations: the first in 2014 in relation to alleged crimes committed during the Maidan protests and the second, in the aftermath of the occupation of Crimea and the outbreak of Russia’s proxy war in eastern Ukraine. Unlike the first declaration, which was temporally limited in scope, the second declaration extended to alleged crimes committed from February 20, 2014. Hence, although Ukraine is not a full state party to the Rome Statute, the court can exercise its jurisdiction over any nefarious acts such as genocide, crimes against humanity, or war crimes committed within the territory of Ukraine from 2014 onwards. This would include the court’s jurisdiction over Russia’s forcible displacement of Ukrainian people to neighbouring countries. Although Russia symbolically withdrew its signature from the Rome Statute following the release of a damning preliminary examination report by the Office of the Prosecutor in 2016, the ICC has jurisdiction to prosecute any individuals, including Russian nationals, who allegedly commit crimes falling within its jurisdiction on Ukrainian territory. Due to the jurisdictional limitations applicable to the crime of aggression, however, the reach of the ICC remains limited to war crimes, crimes against humanity, and genocide. It does not extend to the crime of aggression. Given the above implication, the Office of the Prosecutor would face enormous constraints in investigating alleged crimes such as the crime of aggression as the Russian Federation would not be cooperative with the Office of the Prosecutor’s calls for an investigation. A cardinal principle that aids the progress of the work of the Office of the Prosecutor is State Cooperation. Failure to secure this would make a charge against the Russian Federation for the alleged crime of aggression perpetrated against Ukraine prove ineffective.
2.2.The Restrictions on The Exercise of Jurisdiction in Respect of The Crime of Aggression
It is noteworthy that the negotiations on the crime of aggression were finalised in Kampala, Uganda, and adopted in June 2010. After a number of years, the necessary ratifications for the inclusion of the crime of aggression were obtained and the Court’s jurisdiction over the crime has been activated, meaning that aggression is now a fully applicable crime within the jurisdiction of the Court. The exercise of jurisdiction over aggression requires either a referral by the Security Council (Article 15ter), where the Russian veto will block every initiative in that direction or that the State of nationality of the suspect and the State on the territory of which the aggression took place or is taking place is party to the Court (Article 15bis (5)). This essential provision of Article 15 reads as follows:
‘In respect of a State that is not a 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.’
Thus, from the above provision, it is clear that based on statutory limitations on the jurisdiction, the Office of the Prosecutor will be challenged with prosecuting the crime of aggression against Russia. States, like Russia, that are both sufficiently powerful, and potentially (or in this case, actually) aggressive, do not tend to be a party to the Rome Statute. Moreover, the most powerful States, as in the present case, are also in a position to paralyse the Security Council with their veto.
As the Prosecutor has made clear, the ICC has jurisdiction over any war crimes, crimes against humanity or genocide committed on Ukraine’s territory – but it does not have jurisdiction over the crime of aggression. This is because the crime of aggression amendments to the Rome Statute, adopted in 2010 and activated in late 2017 with effect from 17 July 2018, includes a special jurisdictional regime – a compromise insisted upon by the Permanent Five Members of the UNSC to which ICC States Parties reluctantly agreed as the price paid for agreement on the amendments. Those jurisdictional provisions are complex, but one aspect of them is crystal clear: any crime of aggression involving a non-State Party as either victim or aggressor is excluded from the jurisdiction of the Court, except in the case of UNSC referral. As such, any ratification of the Statute and the aggression amendments by Ukraine would not change the calculus. Absent regime changes in Russia that could result in the denunciation or scapegoating of Putin makes the UNSC route a futile dead end because of the inevitable Russian veto power.
Thus, the aforementioned discussion illustrates a potential challenge in prosecuting the Russian Federation or those with Command responsibility therein for the alleged crime of aggression against Ukraine.
2.3. A Possible Failure to Cooperate with The ICC Office of The Prosecutor by the Russian Federation
Another challenge would be that the ICC Prosecutor and the Court usually require cooperation from States, and, in certain circumstances, requires the Security Council to support its decisions, its request for arrest warrants, and demands of the court to transfer indicted war criminals to The Hague. The Russian Federation by them not being a party to the Rome Statute shows a sufficient intention that the Russian Federation would not cooperate with requests, decisions, and orders of the ICC, the ICC Prosecutor, or its agents. Similarly, the Russian Federation make up the Big Five Permanent Members in the UN Security Council, and on this basis has the power to veto any decision that may be resolved against their interest.
The crime of aggression is committed by individuals, and often, those with command responsibility may be prosecuted. However, in the current Russia-Ukraine situation, it would be extremely impossible for the Office of the Prosecutor to prosecute the leader of the Russian Federation, nor would the Russian Federation be willing to surrender its top army commanders who are presiding over the aggression in Ukraine to stand before the Office of the Prosecutor or the Court for any form of investigation, hearing, trial, inter alia. The crux of this potential problem to the Office of the Prosecutor rests on the fact that the Russian Federation has failed to cooperate with the ICC or its agents.
2.4.The Lack of Progress in Investigating the Russia-Ukraine Situation by The Office of The Prosecutor
Another problem/challenge faced by the Office of the Prosecutor is the carrying out of an investigation into alleged violations of International human rights law and international humanitarian law in the Russia-Ukraine situation. Upon referrals by States Parties or by the UNSC, or on its own initiative and with the judges' authorisation, the Office of the Prosecutor conducts investigations by gathering and examining evidence, questioning persons under investigation, and questioning victims and witnesses, for the purpose of finding evidence of a suspect's innocence or guilt. The Office of the Prosecutor must investigate incriminating and exonerating circumstances equally. The Office of the Prosecutor requests cooperation and assistance from States and international organisations, and also sends investigators to areas where the alleged crimes occurred to gather evidence. Investigators must be careful not to create any risk to the victims and witnesses.
Having laid the above foundation, in the current Russia-Ukraine situation, the Chief Prosecutor is faced with an overwhelming task. He must identify and engage with those who are already processing individual crime scenes, which can be extraordinarily complex, and new crimes that are committed every day of the war. He must find out who is conducting this work, and where and how they are performing these tasks before he moves forward with their information. He must identify what weapons are being used by both sides in the war, what their capabilities are and aren’t, what kind of munitions they use, and what kind of damage they can do. Experts must begin to do ballistics analysis to determine where indirect fires that have done so much damage and resulted in so much death and injury have come from. The units involved in the fighting must be identified along with what uniforms, insignia, and equipment they wear, and when and where they have been deployed. In many or most cases, rosters of the people in the units must be found and chains of command sorted to identify individual actors involved in the violence from the grunts pulling the triggers, to the field commanders giving them tactical orders, to indirect fire spotters, officers responsible for artillery and rocket batteries, pilots, and crews, and the staff officers and generals managing the campaign. The political leaders who made it all happen in the first place and who keep it going must be individually identified, inter alia.7 These would be hard to successfully accomplish as the Russian authorities have so far not recognised the jurisdiction of the ICC, hence, may not cooperate with any request or calls for investigation from the Office of the Prosecutor. Given the uncertainty of the next phases in the war and the outcome in Ukraine, it is critical that whatever evidence is now in Ukraine be relocated and managed by the ICC in The Hague. All evidence collected in the future should be sent to The Hague for protection and to make it available for prosecution in the event the war does not end well for Ukraine.
2.5.The ‘Lack of Resources’ Argument
Over the last few years, the Office of the Prosecutor has faced substantial financial and resource constraints amidst its ever-increasing workload, which led the Prosecutor to call for additional budgetary support upon announcing the investigation into the situation of Ukraine. In an unprecedented show of support, 21 state parties to the ICC confirmed their willingness to second national experts, while 20 state parties agreed to commit financial resources. This has raised concerns about selective justice, although the ICC Prosecutor later sought to dispel such fears by assuring that the resources and funds will be distributed among all situations. The initial ICC preliminary examination into the situation in Ukraine concluded in December 2020 when the former Prosecutor, Fatou Bensouda, announced that a reasonable basis exists to believe that a broad range of war crimes and crimes against humanity falling within the Court’s jurisdiction had been committed in the occupied Crimea and eastern Ukraine, all meeting the required gravity threshold. However, she left the decision on requesting the authorization of an investigation into the situation, to her successor, Karim Khan. Her decision was informed by the lack of sufficient resources at the Office of the Prosecutor’s disposal to undertake additional investigations. On 23 March 2022, the French Ministry for Europe and Foreign Affairs declared that it would provide €500 million of extra funding to the ICC and would increase the support "if need be".9 However, this research paper argues herein that the ICC may be faced with a possible challenge regarding the fact that the needed resource mobilization especially where States which have offered to provide the requisite manpower, logistics, and financial aid do not fulfil their promise, would prove to inevitably slow the operations of the Office of the Prosecutor in investigating, and charging individuals of the Russian Federation for the alleged crime of aggression.
2.6. The Lack of an International Police in executing arrest warrants, and other Court Processes initiated by the Office of The Prosecutor
The International Criminal Court, as the world’s permanent criminal court, does not have a police force. It doesn’t have any power to arrest. And so, any decision, or call for an investigation to be initiated by the Office of the Prosecutor, made against individuals/leaders in a State like Russia, with nuclear weapons, would be difficult to enforce. Though not with a nuclear power Nation, the ICC has faced this similar challenge before. The former Sudanese President, Omar Al-Bashir, is a great example. The court did what it was supposed to do [it indicted Mr. Al-Bashir] and then, it was left to the international community (individual states, and the Security Council) to make sure that Al-Bashir was apprehended and transferred. It did not happen. It also shows how difficult it is when you are talking about an indictee from a country that is not a state party to the Rome Statute.
Hence, this is very challenging, and some would say, an impossible hill to climb for the Office of the Prosecutor as well as the International Criminal Court in charging the Russian Federation or individuals from the Russian Federation or even President Putin for the alleged crime of aggression against Ukraine.
2.7. An Impasse on the United Nations Security Council’s Referral System Given That Russia Has Veto Powers
The UN Security Council’s referral option under Article 13 of the ICC Rome Statute is not possible either because of the right of veto of Russia. The proof is that Russia used its right of veto to prevent a “draft resolution” from being adopted in this situation on February 25, 2022. By so doing, these nuances would inhibit the effectiveness of the Office of the Prosecutor in charging individuals from the Russian Federation over the crime of aggression allegedly perpetrated against Ukraine.
Firstly, the crime of aggression, which is described by Kyiv as the original sin, has only been prosecuted once, at the Nuremberg Trials in the aftermath of World War II.10 The crime could yet again be prosecuted by the Office of the Prosecutor after he is able to comply with the following recommendations in order to truncate the aforementioned potential challenges.
a. Alliance-building: The key actors herein would be Ukrainian and other national authorities, allied States, and CSOs. Ukrainian and other national authorities and allied States should form a Multilateral Group to promote accountability for the crime of aggression. At the same time, national and international CSOs should form a coalition with similar purpose. These structures would allow the implementation of joint efforts at different levels and forums and facilitate the development of the other strategic pillars.
b. Raising awareness and changing the narrative on the crime of aggression: The key actors herein would be the Office of The Prosecutor, Multilateral Groups, CSOs coalition, and academia. As mentioned above, the crime of aggression has been neglected for several decades, and it is necessary to raise awareness of its meaning and content. Likewise, it is essential to promote a new conception of the crime, highlighting its impact on individual victims and not only on States. The Multilateral Group, the CSOs coalition, the ICC, and the academia are the key actors in this pillar. The ICC Office of the Prosecutor (OTP) can play a crucial role in this area. As it has been suggested before, the Office of the Prosecutor should issue a policy paper on the crime of aggression and mention it more frequently in public activities and reports. This policy paper should develop the specific characteristics of this crime, its impact on victims, and the meaning of positive complementarity in aggression cases. In addition, complementarity should cover the coordination of investigations on the crime of aggression and those focused on war crimes, crimes against humanity, and genocide, committed in the context of aggression. Additionally, with a long-term perspective in mind, the Assembly of Parties to the ICC should promote the discussion of amending the jurisdictional regime for the crime of aggression in the Rome Statute. The academia should also engage in debates to clarify controversial issues around this crime, such as immunities, domestic prosecution, and universal jurisdiction.
c. Evidence gathering and judicial cooperation: The key actors herein would be the United Nations, the ICC, and Domestic investigation teams. One of the critical elements for successful prosecutions is collecting, systematising, and preserving evidence. As others have suggested, the United Nations General Assembly or the Human Rights Council should establish an international, impartial, and independent mechanism for Ukraine similar to those assembled for Syria and Myanmar. The ICC should also strengthen judicial cooperation in terms of evidence-sharing and training with domestic investigation teams.
Secondly, as the veto power of the Security Council’s five permanent members remains a strong tool for preventing prosecution, the following recommendations must be taken.
a. That the permanent members should cajole their Russian counterparts using every form of diplomatic policy available to end their (Russian) alleged aggression against the government and people of Ukraine.
b. That where this fails, a successive regime of the Russian Federation, unlike the current one, would be persuaded to surrender all those individuals who exercised or had command responsibility during the Russia-Ukraine situation to the Office of the Prosecutor, for investigation, and subsequent prosecution.
Thirdly, given that the Russian Federation is currently not a state party to the Rome Statute, since its withdrawal from the statute in 2016, there is a strong need to progressively persuade the Russian Federation to re-join the ICC as a member state in order to prevent the ongoing jurisdictional limitations the court is facing in prosecuting states who are not a party to the Rome Statute, save for the 2014 Declarations made by Ukraine which gives the Court jurisdiction over alleged crimes perpetrated by the Russian Federation in the territory of Ukraine.
Finally, in the event that some of the above recommendations may have been met, State cooperation on the path of the Russian Federation in aiding the smooth and successful prosecution of alleged aggressors and perpetrators of the alleged crime of aggression would be done by the Office of the Prosecutor with no encumbrance. This would also aid the execution of Court orders, and arrest warrants, inter alia, coordinated by INTERPOL and other Policing and law enforcement coordinating bodies.
The research paper finds that there are a number of challenges that the Prosecutor of the International Criminal Court would face in prosecuting the Russian Federation, its leaders, and its commanders for the alleged crime of aggression perpetrated in the territory of Ukraine. The paper goes further to proffer a series of recommendations for ending these violations of international human rights law, and international humanitarian law and provides guidelines to successfully hold perpetrators accountable under the quest of satisfying the legal frameworks of international criminal justice. This paper concludes by adding that where the Office of the ICC Prosecutor successfully crosses these hurdles, the operations of the Prosecutor’s Office would provide hope to those who look to international law to uphold democratic principles and a more peaceful world.
1. Robert Cryer, and Others, ‘An Introduction to International Criminal Law and Procedure’, Third Edition.
• INTERNET SOURCES
1. Situations under investigations, https://www.icc-cpi.int/situations-under-investigations.
2. David Schwendiman, The Way: The Chief Prosecutor, the Int’l Criminal Court, and Ukraine, Published on March 20, 2022: https://www.justsecurity.org/80757/the-way-the-chief-prosecutor-international-criminal-court-and-ukraine/.
4. Laura Kelly, Putin in crosshairs as Ukraine pushes for prosecuting crime of aggression, https://www.yahoo.com/news/putin-crosshairs-ukraine-pushes-prosecuting-110000126.html.
5. Sophie Wood, ICC Crime of Aggression comes into force, https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/icc-crime-of-aggression-comes-into-force
• JOURNAL ARTICLES
1. Víctor Manuel Aguilar Pereira, ‘SUPREME INTERNATIONAL CRIME’ OR ‘PAPER TIGER’? ON THE CRIME OF AGGRESSION, ACCOUNTABILITY GAPS, AND RUSSIA’S INVASION OF UKRAINE.
• OP-EDS AND REPORTS
1. Mark Ellis, Thursday March 03 2022, 12.01am, The Times, Russia’s attack violates the most sacred principle in international law.
1. The Rome Statute.
2. The Kampala Review Conference Amendments to the Rome Statute