The Russian Invasion of Ukraine: Navigating Aggression's Fragmented Justice Landscape
Cambridge International Law Journal, Blog
13 Pages Posted: 29 Apr 2022
Date Written: April 5, 2022
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: Suggested Citation