"If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
Aggression is prohibited by the ICC's Rome Statute. Article 8bis defines the crime of aggression as "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."
Adopting the central prohibition of the U.N. Charter against the use of aggressive force, Article 8bis defines an act of aggression as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."
The charter only allows the use of military force in self-defense or with the consent of the Security Council, neither of which happened before Russia invaded Ukraine.
In order to secure a conviction for aggression, the prosecutor of the ICC must prove that a leader who exercised control over the military or political apparatus of a country ordered an armed attack against another country.
An armed attack can include bombing or attacking the armed forces of other country. The attack must be a "manifest" violation of the U.N. Charter in its character, scale and gravity, which includes only the most serious forms of the illegal use of force. For example, a single gunshot would not qualify but George W. Bush's illegal invasion of Iraq would.
But the ICC's jurisdictional scheme for the crime of aggression is much more restrictive than its regime for punishing the other crimes under the Rome Statute genocide, war crimes and crimes against humanity.
The original Rome Statute said that those three crimes could be prosecuted in the ICC if: (1) the defendant's country was a party to the statute; (2) one or more elements of the crime was committed in the territory of a State Party; (3) the defendant's country accepted ICC jurisdiction for the matter; or (4) upon referral by the U.N. Security Council. But the statute left the definition and jurisdictional scheme for prosecuting the crime of aggression to future negotiation.
In 2010, the final negotiations in Kampala, Uganda, added an amendment which is now Article 15bis(5) of the Rome Statute.
It is this article that prevents the ICC from taking jurisdiction over Russian leaders for the crime of aggression.
Most countries at the Kampala Review Conference thought they had agreed that States Parties were covered by the jurisdictional scheme unless they "opted out" under Article 15bis(4).
But in 2017, France, the U.K., and several other States reversed the presumption of Article 15bis(4). Under their new interpretation, States Parties were presumed to be "out" of the jurisdictional scheme unless they "opted in" by ratifying the amendment. In other words, the ICC would not have jurisdiction to prosecute nationals of States Parties that had not ratified the amendment.
If the crime of aggression was covered by the same jurisdictional regime as war crimes, genocide and crimes against humanity, the ICC could prosecute Russian officials for aggression.
Although neither Russia nor Ukraine has ratified the Rome Statute, Ukraine accepted ICC jurisdiction under Article 12(3) of the statute. Russia would veto any Security Council referral of the matter to the ICC.
The prohibition on aggression is so basic that it is considered to be jus cogens, a preemptory norm of international law which can never be committed under any circumstances. There is no immunity defense or statute of limitations for a jus cogens norm.
The Security Council could convene a special tribunal to try the crime of aggression committed in Ukraine, but again, Russia would veto such a resolution.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
2
2
1
