The Russian Invasion of Ukraine: Navigating Aggression's Fragmented Justice Landscape

13 Pages Posted: 29 Apr 2022

See all articles by Gregory S. Gordon

Gregory S. Gordon

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Giovanni Chiarini

University of Insubria, Department of Criminal Procedure; University College Cork - Centre for Criminal Justice and Human Rights; Université Côte d'Azur, Laboratoire de Droit International et Européen; The University of Edinburgh, Centre for International and Global Law; Universitat zu Koln, Institute of International Peace and Security Law ; University of Warwick, Centre for Critical Legal Studies & Criminal Justice; Bar Council of Piacenza

Date Written: April 5, 2022

Abstract

In this essay, we examine the International Criminal Court (ICC) Prosecutor’s preliminary examination of war crimes and crimes against humanity related to Russia’s initial incursions into Ukraine in the 2013-2014 period and then the conversion of that into an investigation that now includes crimes arising from Russia’s February 2022 large-scale invasion. Given that the recent invasion appears to satisfy the elements of the crime of aggression, a crime that has been defined and over which jurisdiction has been activated in the ICC’s Rome Statute, could that crime be incorporated into the ICC’s existing case? We provide our analysis as to why that is probably not the case in light of the restrictive nature of Article 15bis of the Rome Statute as well as the impossibility of a Security Council referral pursuant to Article 15ter. We then consider whether other avenues of justice might be available, such as domestic prosecutions via universal jurisdiction or via the creation of an ad hoc international criminal tribunal (through the Uniting for Peace Resolution and/or an agreement between the UN and Ukraine and/or a treaty among various nations). Such a court could try the case via a delegation of Ukrainian territorial jurisdiction and/or principles of universal jurisdiction. Given realpolitik, these proposals might seem like longshots, but we believe that Russia’s extraordinary act of aggression calls for an extraordinary response.

Keywords: Russia, Ukraine, war crimes, crimes against humanity, Russian invasion, Rome Statute, 15bis, 15ter, International Criminal Court, Uniting for Peace, aggression, ICC jurisdiction, ad hoc tribunal, human rights, crime of aggression, international criminal law

JEL Classification: K14, K33, K42

Suggested Citation

Gordon, Gregory S. and Chiarini, Giovanni, The Russian Invasion of Ukraine: Navigating Aggression's Fragmented Justice Landscape (April 5, 2022). Cambridge International Law Journal, Blog, The Chinese University of Hong Kong Faculty of Law Research Paper No. 22-13, Available at SSRN: https://ssrn.com/abstract=4095286 or http://dx.doi.org/10.2139/ssrn.4095286

Gregory S. Gordon (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
The Chinese University of Hong Kong Main Campus
Sha Tin, New Territories
Hong Kong

HOME PAGE: http://www.law.cuhk.edu.hk/app/people/prof-gregory-gordon/

Giovanni Chiarini

University of Insubria, Department of Criminal Procedure ( email )

Faculty of Law
Via Sant'Abbondio, 12
Como, 22100
Italy

HOME PAGE: http://https://www.uninsubria.it

University College Cork - Centre for Criminal Justice and Human Rights ( email )

College Rd, University College
Cork, T23
Ireland

HOME PAGE: http://https://www.ucc.ie/en/

Université Côte d'Azur, Laboratoire de Droit International et Européen ( email )

Av. Doyen Louis Trotabas
Nice, 06000
France

HOME PAGE: http://https://univ-cotedazur.eu

The University of Edinburgh, Centre for International and Global Law ( email )

Old College, South Bridge EH89YL
Edinburgh
Great Britain

Universitat zu Koln, Institute of International Peace and Security Law ( email )

Albertus-Magnus-Platz
Koln, 50923
Germany

HOME PAGE: http://https://portal.uni-koeln.de/en/sub/uoc-home

University of Warwick, Centre for Critical Legal Studies & Criminal Justice ( email )

Gibbet Hill Rd.
Coventry, West Midlands CV4 8UW
United Kingdom

HOME PAGE: http://https://warwick.ac.uk

Bar Council of Piacenza ( email )

Vicolo del Consiglio, 12
Piacenza, 29122
Italy

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