the need to adjust the ICC Statute to the realities of contemporary warfare.
The Prosecutor of the ICC already announced his intention to examine the “situation” that was created by this war. However, neither Russia nor Ukraine ratified the Rome Statute of the International Criminal Court, but Ukraine filed two declarations in 2014 that recognize the jurisdiction of ICC in the territory of Ukraine. How do you see the jurisdiction of ICC? What are the other preconditions for the ICC to exercise its jurisdiction? How does the ICC carry out its investigations and try the cases?
The ICC has a solid jurisdictional basis. In 2015, Ukraine granted the ICC jurisdiction over acts ‘committed in the [entire] territory of Ukraine since 20 February 2014’ for an indefinite period. This means that the ongoing invasion comes within the ICCs jurisdiction, although neither Ukraine nor Russia, is a state party. This was supported by an unprecedented collective referral of 41 states to the Court, which has enabled the Prosecutor to speed up proceedings. It shows the wide support for the Court in this context.
Ukraine is a ‘make or break’ case for the ICC.
The Prosecutor has seized the moment to request additional support from states.
Investigations and prosecutions pose numerous challenges, in addition to capacity or budgetary constraints. Although the ICC has demonstrated in other contexts that it is able to collect evidence, interview potential witnesses or identify chains of command in situations of going conflict, it is far more difficult to obtain linkage evidence, i.e. the evidence necessary to connect individual perpetrators to specific crimes. Both, domestic jurisdictions and the ICC, are likely
to face difficulties to get hold of suspects, as long as they are protected by parties to the conflict.
This is clearly shown by the experience of the MH17 investigation. While the Court may be able to issue warrants of arrest, it will be a challenge to execute them, since the ICC relies on state cooperation to arrest individuals. Unlike the MH17 tribunal, it cannot try persons in absentia.
Is there any previous precedent of examining individual international criminal responsibility for aggression? What potential venues can serve for this in this case?
One weakness of the Court is its limited jurisdiction over the crime of aggression. In the negotiation of the aggression amendments, several states, including permanent members of the Security Council, have actively lobbied to exclude the possibility of the ICC to exercise jurisdiction over the crime of aggression ‘in respect of a State that is not a party’ to the Statute (Art. 15 bis (4)). The price is now becoming apparent. Although many states, including Ukraine, have included the crime into their domestic jurisdiction, only a handful of states have adopted legislation, enabling the exercise of universal jurisdiction (e.g., Samoa) or conditional universal jurisdiction (Austria, Croatia, East Timor, Moldova). Its exercise has been impeded by protection of personal immunities or concerns over the political nature of prosecutions. A rare exception is the case against former President Viktor Yanukovich in 2019 before the District Court in Kyiv, which resulted in his conviction for complicity in aggression in the invasion of the Crimea and Eastern Ukraine in absentia proceedings. He is only the second former head of state convicted for the crime.
There are numerous ideas to remedy the ‘aggression gap’.
One proposal is creation of new special tribunal on aggression. However, such a targeted tribunal would most likely replicate many of the weaknesses of domestic prosecutions. It would lack enforcement power, face immunity challenges, and selectivity concerns, if it is only about crimes by specific individuals or by one side.
It also poses deeper legitimacy questions about double standards of the West in relation to international criminal justice, given the lack of political will to take similar steps in relation to unlawful uses of forces by Western leaders, such as the invasion of Iraq.
Another idea is the creation of a specialized Court chamber within the legal system of Ukraine. It offers the prospect of greater proximity to the region, affected communities or Ukraine’s own legal culture. However, the feasibility of such an approach would depend significantly on the political context, including the necessary impartiality and independence, as well as security and domestic capacity. It would be artificial to separate jurisdiction over aggression from crimes against humanity or war crimes.
However, in my view, it is premature to think about ideal scenarios for aggression prosecutions, while Ukrainians are fighting for their survival.
We have already seen many examples of successful trials that either the ICC or other ad hoc international criminal court carried out in the aftermath of armed conflicts. However, none of them included a conflict that a Member of the Security Council has been involved. How do you see the chances of just and successful trials this time?
This is indeed a novum. The requests for warrants of arrest on 10 March 2022 against members of the South Ossetian administration for crimes committed in Georgia mark a novel step.
This the first time that the ICC seeks to arrest nationals of a permanent member of the Security Council.
The strong backlash of the US against investigations of US nationals in the context of the situation in Afghanistan might give an indication of the obstacles that the Court is likely to encounter, the more it proceeds. However, I would argue there is value in proceeding, even though we may not yet see clear chances of arrest of the most responsible leaders. First, an independent and impartial investigation is critical to counter legal disinformation and misinformation, which are part and parcel of strategic warfare more than ever before. Second,
ICC investigations may have an important spin-over effect, facilitating additional domestic investigations and prosecutions.
We have already seen this, with other states starting structural investigations. Finally, lessons from the ad hoc tribunals or the Bashir case make it clear that international justice requires a long-term perspective. With political change and transformation, the context might change radically, sometimes more than a decade after the facts.