How the Ukraine Situation is Testing the International Criminal Court

Abstract

Following its eight-year occupation of Crimea, Russia launched a full-scale invasion of Ukraine in February 2022. The ensuing war has resulted in a cascade of atrocities committed by Russian armed forces, including widespread and indiscriminate shelling of Ukraine’s cities, attacks on Ukrainian civilians, and the targeting of civilian infrastructure including Ukraine’s electrical grid. This essay addresses the challenges to the pursuit of justice for Ukraine, in particular at the International Criminal Court (ICC). It likens the conduct of the war in Ukraine with the siege and bombardment of Sarajevo in the 1990s, which involved similar kinds of attacks and resulted in successful prosecutions of high-ranking officials for war crimes and crimes against humanity at the International Criminal Tribunal for the former Yugoslavia (ICTY). The Chapter examines the ICTY prosecutions in the context of the current ICC arrest warrants directed against Russian nationals and explores the legal differences between the ICC and the ICTY that might prove both instructive and challenging to the ICC. The Chapter evaluates other challenges faced by the ICC, including its jurisdiction over Russian nationals, its lack of jurisdiction over the crime of aggression, the ICC’s relative weakness compared with Russia’s global superpower status, and the problem of double standards introduced by the ICC and States in responding to situation in the State of Palestine following the October 7 attacks. It concludes by recognizing that the Ukraine situation represents a watershed moment for international criminal law, offering the ICC the possibility of redemption in the minds of many, particularly European and Western nations, but threatening the support of others in the Global South if the Court does not pursue justice without fear and favor in Ukraine and elsewhere.