There is a consequential blind spot in some of the analyses published at Just Security and elsewhere on the topic of Ukraine. The proposals to create an ad hoc tribunal to potentially prosecute President Vladimir Putin for the commission of the crime of aggression promotes nothing short of selective justice. For many people living outside the United States, this is not a simple legal nuance. It is potentially a matter of life or death.
Putin should be criminally investigated for this international crime. That much is clear. My point is, what institution will investigate other criminal acts of aggression? One example is the current Azerbaijan aggression against Armenia. What about the January 2020 U.S. attack in Iraq that killed Iran’s most senior military leader invoking a US Congress authorization to use military forces in Iraq, adopted in 2002 and still valid. International criminal justice should not apply just against enemies or outcasts.
A gaping problem: Ukraine accepted the International Criminal Court (ICC) jurisdiction in 2014 and in 2022 the ICC Prosecutor opened an investigation against whomever committed genocide, crimes against humanity, and war crimes, but he has no authority to investigate the Russians for the crime of aggression. In a recent article, Claus Kress, Stephan Hobe, and Angelika Nußberger explained the obstacle: Article 15 bis (5) of the Rome Statute, amended in 2010, establishes: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Russia is not a state party; consequently, the ICC has no jurisdiction to investigate Russian nationals involved in the crime of aggression against Ukraine.
The proposal to create an ad hoc international tribunal to prosecute Russians (and perhaps also Belarusians) instead of removing the exceptional limits imposed on the ICC jurisdiction on aggression crime will consecrate selective justice. It is even more profound a case of this form of abuse of law, given that an existing international body stands ready and able to take up the case if only States implemented a structural fix.
The proper solution is to allow the ICC’s investigation of the crime of aggression regardless of the aggressor’s nationality. A simple revision of Article 15 bis (5) will achieve such a goal by deleting five words: “by that State’s nationals or.” Whether States like Ukraine then want to become a State party or accept the ICC jurisdiction for the crime of aggression committed on their territory would be up to them.
The Assembly of States Parties to the ICC could solve the problem by adopting a new text without the five words. Such a formula protects the states parties’ and respect non-parties sovereignty.
ICC’s Chief Prosecutor Karim Kahn made his perspective very clear during the last Assembly of States Parties. Regarding aggression crimes, he recognized “there is a gap” in the global legal architecture and proposed “to address it through the Rome Statute.” “We don’t want dilution, we want consolidation.”
The Rome Statute amendment “to consolidate” its work is legally and politically feasible. It will require a conference of the States parties, and the agreement of two third of the participants will suffice. There will be no veto power. The United States, the main promotor of the rule adopted in Kampala, China, and Russia, could not vote.
Kress, Hobe, and Nubberger properly identified France and Great Britain, the two Council permanent members and states parties, as the champions of the restrictive jurisdiction on aggression, and they also recognized that the “majority of States Parties, among them most of the African and South American States” have been against the “double consent” Imposed in the Kampala text. The authors also outlined how the revision of the Kampala compromise might be diplomatically possible in light of the awakening that the war in Ukraine has produced. “It should give every State sufficient reason to reconsider prior preferences,” they wrote.
The European Parliament, Germany, and the Netherlands, a region and countries that led the creation of an independent ICC, are worried about Putin’s impunity and promoting the idea of alternative international mechanisms. I would like to help them to explore better options in future analysis.
The inclusion of the five words in the amendment adopted at Kampala in 2010 created an unjustifiable jurisdictional regime for the aggression crime – exempting many of the States who might be most likely to send their military abroad in manifest violation of the UN Charter.
Ukraine’s conflict is an opportunity to improve the Rome Statute and ensure that there will be no impunity for President Putin and whoever commits the crime of aggression in the future.
IMAGE: The ICC seal on a window at the International Criminal Court Building in The Hague (Getty)
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