The International Criminal Court and Ukraine

Ukraine; international law; international crimes
Dr Shannon Maree Torrens

As the conflict between Russia and Ukraine unfolds, international crimes are arguably being perpetrated in the territory of Ukraine. The international community’s permanent response to international crime is the International Criminal Court (ICC) which was established in The Hague in The Netherlands pursuant to the 1998 Rome Statute of the International Criminal Court. The current ICC Prosecutor Karim Khan has, like much of the world, turned his focus to Ukraine with a team of ICC investigators heading into Ukraine on Thursday 3 March to conduct investigations into possible crimes.

The ICC has ‘the power to exercise its jurisdiction over persons for the most serious crimes of international concern’ (Article 1 Rome Statute). These crimes are genocide, crimes against humanity, war crimes and more recently the crime of aggression (Article 5). A key feature of the ICC and international justice more generally is that it is selective. Due to financial and time constraints the ICC cannot prosecute everyone who has committed an international crime. Rather, the Court focuses on ‘the gravest incidents and those most responsible’.

Another key feature of international justice is that it prosecutes individuals, not states, therefore neither Russia nor Ukraine as states will ever find themselves in the dock in The Hague. A Russian or Ukrainian individual, including high ranking people, may however end up on trial for crimes committed during the current conflict.

The path to trials at the ICC is neither straightforward nor easy.

Ukraine investigation

On Friday 25 February, the day after Russia announced its ‘special military operation’ into Ukraine, ICC Prosecutor Khan noted his ‘increasing concern’ regarding the Ukraine situation.

Neither Ukraine nor Russia are states parties to the Rome Statute. However, Ukraine has lodged two declarations accepting the Court’s jurisdiction (pursuant to Article 12(3) of the Rome Statute).

After Khan’s announcement, the weekend passed with the situation in Ukraine escalating. On Monday 28 February he announced he had decided to seek the opening of an investigation into the situation in Ukraine. Khan said there is a ‘reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine’ based on events already assessed by his Office as part of the preliminary examination into Ukraine.

Crimes against humanity are acts such as murder, extermination, enslavement, deportation, imprisonment, torture, rape, and persecution ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ (Article 7 Rome Statute). Genocide is ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (Article 6 Rome Statute; see also UN Genocide Convention, Article 2). These acts can include killing members of the group, causing serious bodily or mental harm and inflicting conditions of life calculated to bring about the physical destruction of the group.

Crimes against humanity and genocide can be perpetrated during times of peace or war. War crimes are crimes committed during an armed conflict that are a serious violation of the laws and customs of international humanitarian law (including the 1949 Geneva Conventions and their Additional Protocols). International humanitarian law regulates the conduct of armed conflict and limits its effects (see also Article 8 Rome Statute). War crimes can include deliberately attacking civilians or civilian objects, torture, destruction of property, taking hostages and killing or wounding a combatant who has laid down arms.

For the Prosecutor to proceed with the investigation, there would normally be a request to the Pre-Trial Chamber of the ICC to open an investigation (Article 15(3) of the Rome Statute) or a State party to the Rome Statute could refer the situation to the Office of the Prosecutor (Article 14(1)).

Due to the international support for prosecutions focusing on Ukraine, at the latest count 39 countries which are states parties to the Rome Statute, including Australia, the UK, Germany, France and New Zealand have now referred the situation to the Prosecutor (but not the United States as it is not a state party to the Rome Statute). The referrals expedite the commencement of an investigation as the Prosecutor no longer needs to ask the Pre-Trial Chamber for authorisation.

These referrals enabled the Prosecutor to open an investigation into crimes committed in Ukraine from 21 November 2013 onwards. The ICC investigation will therefore look at crimes committed not only in the current situation.

As Khan notes, the investigation will have ‘within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person’. Khan has noted that his office has now commenced the collection of evidence, which is itself a challenging undertaking in international prosecutions, particularly during a conflict.

The crime of aggression

Aside from war crimes and crimes against humanity, in invading Ukraine, Russian individuals are also arguably perpetrating the crime of aggression pursuant to Article 8 bis of the Rome Statute of the ICC. The crime of aggression was activated by states parties to the Rome Statuteeffective 17 July 2018. Article 8 bis(1) of the Rome Statute notes that ‘crime of aggression’ means 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 has unique jurisdictional restrictions which mean that as Russia is not a state party to the Rome Statute, the ICC could only prosecute a Russian individual where the UN Security Council has referred the situation to the ICC (See Articles 13(b) and 15 ter of the Rome Statute). However, this would require that no member of the UN Security Council use its veto power, which Russia would likely do in such a situation.

Russian (and Ukrainian) individuals could still be subject to universal jurisdiction, which means that states with laws prohibiting grave international crimes are able to prosecute perpetrators in their domestic courts. Various countries, including Ukraine, have implemented the crime of aggression into their domestic legislation.

Due to the difficulty in holding Russian individuals accountable for the crime of aggression at the ICC, on 4 March 2022 there was a joint call for the establishment of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine. This proposal was made by a number of eminent figures including former UK Prime Minister Gordon Brown, Benjamin Ferencz, former Nuremberg Prosecutor and Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia. Ukraine’s foreign minister Dmytro Kuleba supports the establishment of this tribunal.

If established, this tribunal would be distinct from the ICC and complement its processes. The Tribunal would focus on those who have perpetrated the crime of aggression as well as ‘those who have materially contributed to or shaped the commission of that crime’.

Other justice considerations

The opening of an investigation at the ICC is not the final step in seeking justice for those who are victims of international crimes in Ukraine. The collection of evidence will be difficult and international trials are long, expensive, and normally prosecute only the top echelon of offenders.