Why did the International Criminal Court focus on the transfer and deportation of children from Ukraine to Russia?

Posted on March 21, 2023 by Mark Kersten
(A destroyed vehicle near a playground in Kharkiv, Ukraine. Photo: Joel Gunter/BBC)

In the days since the International Criminal Court (ICC) announced it was charging Vladimir Putin and Maria Alekseyevna Lvova-Belova with the war crimes of unlawfully deporting children and transferring them from Ukraine to Russia, many have asked: why did the ICC start with children? Why not other crimes?

The first thing to note is that the arrest warrants issued against Putin and Lvova-Belova represent only the first strike by ICC chief Prosecutor Karim Khan. A few days before the warrants were announced, it was reported that the Prosecutor was preparing another warrant of arrest in relation to the deliberate targeting of civilian infrastructure in Ukraine by Russian forces. There is every reason to believe that a warrant regarding, for example, Russia’s shelling of apartment buildings, maternity wards, and power plants, is in the pipeline or has already been issued but remains under seal.

Still, why start with the abduction and illegal transfer of children?

First and foremost, the scale of efforts to abduct and transfer children from Ukraine to Russia is staggering. According to reports citing official Ukrainian statistics, 16,226 children have been deported from Ukraine to Russia. 10,513 have been located, and 308 have returned. Per a recent report from Yale University on the matter, this war crime no less a systemic and wholesale atrocity than any other, and it is being perpetrated against a particularly vulnerable group of civilians: children. Sufficient evidence was there for the Prosecutor and the ICC Judges and they went for it. Whether Khan’s team of investigators push to add a warrant for the forcible transfer of children as genocide remains to be seen.

The government of Ukraine has also very clearly communicated to the ICC Prosecutor that the abduction of children is its priority. In a widely televised meeting between Khan and Volodymyr Zelensky, the Ukrainian President informed the Prosecutor of this primary concern for Ukraine, stating:

I know there are a lot of different war crimes and of course we want justice and [to] bring all of these guilty people – all of them. But I think that the priority for our people, it’s about our future generation, it’s about our children. I think that this question is for me, number one, that you can focus on the case of deportation of our children and that it is very important to bring them back.

Focusing on the war crime of illegally transferring and deportating children from Ukraine to Russia indicates that Khan has accepted and is willing to act on the wishes of the Ukrainian state. But there is more to it too.

The focus on children could help delegitimize the very reasons for Putin’s war. In an op-ed that otherwise speculates rather wildly about the consequences of the ICC targeting the Russian President, Michael Byers makes the salient argument that the Court’s “arrest warrant discredits Mr. Putin’s claim that the invasion was an act of self-defence. Abducting children, after all, has nothing to do with protecting Russia against NATO.”

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Posted in Children, International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine, Vladimir Putin | 5 Comments

Straight to the top: The International Criminal Court issues an arrest warrant for Russia’s Vladimir Putin

Posted on March 17, 2023 by Mark Kersten

It happened. It actually happened. After months of speculation, the International Criminal Court has issued arrest warrants in the Ukraine situation, including for President Vladimir Putin. Here’s the announcement from the Court:

Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).

Ms Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the  President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Ms Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).

Some quick reflections:

More than anything this is a significant moment for victims and survivors in Ukraine, especially the children and families of children who have been illegally transferred and deported to Russia. After years of largely being neglected and ignored, an international organization has stepped up to the plate and done what it could, for now, to stand in solitary with victims and survivors of war crimes in Ukraine. If the warrant against Putin is any kind of victory, it is first and foremost a victory of the Ukrainian people.

This is a historical moment for the ICC and for global politics, no doubt among the biggest developments in the Court’s history and indeed the history of international criminal law. This is the first time that the ICC has issued an arrest warrant for any citizens of the Permanent 5 at the United Nations Security Council (the United Kingdom, France, China, Russia and the U.S.). I think (and I hope) that this development will matter to those states – including those in the ‘Global South’ – who may have little interest in the ICC but have always, and rightly, been bothered by the impunity enjoyed by the world’s most powerful states and the P5 in particular. What this development undoubtedly also means it that for the foreseeable future, perhaps even decades, there will be no Security Council referrals of situations to the ICC.

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Posted in Uncategorized | 5 Comments

After One Year, We Can Fully See the Gendered Costs of the Ukraine War

Posted on March 7, 2023 by Mark Kersten

Gwen Battis joins JiC for this guest post on the gendered costs of Russia’s invasion and the war in Ukraine. Gwen is a graduate student at the University of Denver studying International and Intercultural Communication.

In Mariupol, a woman strolls past destroyed buildings (Photo: Getty Images / BBC)

It has been one year since Russia invaded Ukraine, inciting a future of violence, war, and displacement. With billions of dollars of Western spending and foreign assistance, Ukrainians are still suffering forced migration, torture and death. But what the common discourse around the conflict is missing is a focus on how this war, like all others, is inherently gendered and disproportionately affects women. 

The Russia-Ukraine war is rooted in economic and ethno-national power relations. Yet, if we analyze how economic and national systems are built, it becomes apparent that a modern-day neoliberal state cannot be built without gender, masculinity, and patriarchy. Gender relations are just as guilty in causing conflict and militarization.

Entertain this idea: Ukraine sits in the international arena as a state on its way towards progressivism, striving for equity, freedom, and liberation, thereby moving farther and farther away from its Soviet past. Russia, on the other hand, in many ways represents traditional values, patriarchy, conservatism, and dictatorship.

If we were to categorize each state based on traditional definitions of masculinity and femininity, we can more clearly see the gendered nature of this conflict: Russia’s invasion of Ukraine is symbolic of an exertion of hypermasculinity, a forcing of obedience, and a violent response to Ukraine’s feminine opposition. For Moscow, Ukraine was supposed to play the ‘woman’ in the relationship and therefore expected to submit. 

But what of Ukrainian women? If Ukraine as an entity is deemed worthy to be dominated, what of the most vulnerable population within Ukraine? 

Ukrainian women and other female-identifying folks are shouldering a disproportionate weight of this war. They are enduring a conflict that is both exacerbating existing gender inequalities and creating new areas of insecurity. After a year of armed conflict, I hope we can take time to investigate how the cost of a dictatorship and the subsequent fight for freedom is creating a climate that inordinately exposes women to suffering and violence.

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Posted in Crimes against humanity, Gender, Russia, Sexual and Gender Based Violence, Ukraine, War crimes | 1 Comment

Making the Invisible Visible: The Case for Truth Commission on Poverty in Canada

Posted on March 3, 2023 by Mark Kersten
(Photo: Peter Power)

Poverty remains as a human rights violation remains an under-explored subject, particularly in Western states like Canada. Within the field of transitional justice, the issue has likewise received less attention than violations of civil and political rights. In a new (draft) paper entitled “Making the Invisible Visible The Case for Truth Commission on Poverty in Canada“, I tackle this topic and ask what role transitional justice and, specifically, a truth commission, could play in helping to address the systemic and structural violence of poverty in Canada. For those interested, here is the abstract:

Socio-economic conditions have received greater attention in recent years but remain a blindspot in transitional justice. So too do settler colonial contexts. A case in point is Canada. To wed the law and politics of poverty eradication and place victims of poverty at the center of this effort, this paper proposes the creation of a Truth Commission on Poverty (TCP). It proposes the creation of a truth commission to examine to the root causes of poverty, take stock of the current climate for poverty reduction, and lay the groundwork for a coherent approach to poverty eradication in Canada. Not seeking to romanticize truth commissions, the paper assesses their strengths and weaknesses in addressing human rights violations before turning to what a TCP in Canada might offer. It offers six reasons to support such an initiative: (i) to address poverty as an ongoing human rights violation; (ii) to render visible the victims and survivors of poverty’s violence; (iii) to interrogate and address the root causes of poverty in Canada; (iv) to assess the consequences of poverty in Canada; (v) to inform the language of social and economic inequalities; and (vi) to alter the political costs of addressing poverty in Canada by accepting social and economic rights as justiciable.

The full-text of the paper can be found here. I am also happy to share copies of the article with those who do not have access to Academia.edu. If you have feedback or comments, they are more than welcome.

poverty-truth-commission-kersten-2023Download

Thank you, as always, for reading!

Posted in Canada, Social and Economic Rights, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Leave a comment

A War Crime Coalition: Russia’s Iranian and Chinese Drones Target Ukrainian Civilians 

Posted on February 22, 2023 by Mark Kersten

Paula Knack joins JiC for this guest post on Russia’s drone warfare in Ukraine. Paula was a former Legal Advisor of the Philippine Embassy and former Assistant Secretary of the Philippine Department of Environment and Natural Resources. She holds masters degrees in Advanced Studies in Public International Law (Leiden) and Science (Munich). The opinions below are her own.

A man walks near a factory bombed by Russian forces in Kyiv, Ukraine (Photo: AFP)

In the wars in Iraq, Libya, Yemen, Azerbaijan, and Syria, huge artillery platforms with varying capabilities were connected to artillery systems and air defense sub-systems to accomplish combat operations. A major concern in such contexts is the accuracy of direct fire weaponry of various ranges to execute the mission and minimize unintended casualties, such as civilians.  Russia’s aggression in Ukraine illustrates this issue. Russia’s feuding mercenaries and ill-trained army, grappling with lack of training and low morale, appear incompetent when it comes to operating weapon systems with precision. Its troops have resorted to relentless, indiscriminate, and disproportionate attacks against civilian infrastructure, often resulting in mass atrocities. 

The war in Ukraine rapidly developed into a so-called “drone war” in its first year. On the Russian side, drones compensate for a lack of competence in targeting and interoperability requirements for firing and defense. On the Ukrainian side, as weapons and ammunition supplies from the West diminished, the lack of a huge military arsenal has led to innovative approaches to prevent the onslaught and occupation of key cities by Russian tanks, including using drones as anti-tank weapons. 

Prior to the depletion of much of its vast war arsenal last year, Russia employed various weapons to attack Ukrainian territory. War monitors from the Organization for Security and Co-operation in Europe (OSCE) reported the use of unguided bombs – heavy artillery, grad multiple rockets, air dropped bombs – on urban areas. Open-source intelligence has also revealed the use of vacuum bombs, cluster munitions, as well as ballistic and cruise missiles. In Mariupol alone,87,000 civilians died after hospitals and residential buildings were targeted. After heavy artillery fire, Mariupol was reduced to ruins. 

In its attacks, Russia has repeatedly violated international humanitarian law (IHL). In Mariupol, prohibited cluster bombs and ballistic missiles were used, and mainly civilian infrastructure was targeted. Russia also used thermobaric bombs in residential buildings, violating the Convention on Certain Conventional Weapons and causing unnecessary suffering on the civilian population in violation of the principle of distinction under Additional Protocol 1 (AP1), ratified by both Russia and Ukraine. Despite the protected status of civilians and civilian infrastructure under IHL, due to poorly trained and/or inexperienced armed forces and mercenaries sent to the war, Russia’s troops are increasingly relying on drone intelligence for targeting. This must not go unnoticed by those engaged in accountability efforts.

Drones are Key to Russian Offensive

Originally meant for intelligence, surveillance, and reconnaissance purposes, drones come in various types and sizes, and can be equipped with explosives. A quadcopter with RPG-7 is typically used to block the entry of tanks in residential areas and supply routes. It is cheaper and easily transportable. It has a sustainer motor of only about 4.5 lbs. and an explosive-equipped warhead of only 1.5 lbs. Some small drones easily fit in backpacks and cost a fraction of anti-tank systems. 

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Posted in China, Drones, International Humanitarian Law, Iran, Russia, Terrorism, Ukraine, War crimes | Tagged | 7 Comments

Preventing Patterns of Impunity: Recognition of the Holodomor in Ukraine as a Genocide

Posted on January 23, 2023 by Mark Kersten

Max Dowbenko joins JiC for this blog post on recognizing the Holodomor as a genocide and the link between doing so and addressing more recent atrocities in Ukraine. Max is a Trainee Solicitor with the UK Government Legal Department. He holds an MA in law from the University of Cambridge and an LLM in Public International Law from the University of Amsterdam

A statue in Kiev memoralizes the victims of the Holodomor (Photo: DW)

February 24, 2022, saw the full-scale invasion by Russia of Ukraine, and, with it, a new and far more uncertain era in global security and international law. This is not to say that the war in Ukraine is the only threat to territorial integrity and the use of force in this century – far from it.  Other states, including those in the UN Security Council, have used force almost certainly illegally in recent times. However, this invasion marks the most significant threat to the international rules-based order since the end of the Cold War, not least because it involves an attempt by a major world power to annex territory from another state. Russia’s legal justification for invading Ukraine is extremely weak, and the genocidal rhetoric it has deployed extremely concerning. And this is not the first genocide committed by Moscow in Ukraine.

The invasion of Ukraine has been condemned by members of the international community as a crime of aggression, one of the four core crimes under International Criminal Law. A United Nations General Assembly Resolution demanded a full withdrawal of Russian forces, and the International Court of Justice ordered Russia to suspend military operations. A May 2022 report commissioned by the New Lines Institute in Washington and the Raoul Wallenberg Centre for Human Rights in Montreal found that there were “reasonable grounds to conclude” that Russia is already in breach of two articles under the 1948 Genocide Convention: (1) the public incitement of genocide (Article III(c)), and (2) the forcible transfer of Ukrainian children to Russia (Article II(e)).

Russia’s war with Ukraine did not start in February: Ukraine has been at war with Russia for eight years, since the annexation of Crimea and initiation of hostilities in the Donbas in 2014. February marked a significant escalation in activities, however, with Russian armed forces invading openly on several fronts, rather than through the use of proxies. The aims of the Russian state have been unclear and subject to much scrutiny and hypothesizing. One of the key enabling factors of the invasion itself is a history of Russian impunity for breaches of international law. Russia’s permanent place on the UN Security Council means that Russia is largely sheltered from the effects of the international legal order. Even preceding its annexation of Crimea and the conflict in the Donbas in 2014, Russia’s actions in Georgia in 2008 and in Transnistria in the early 1990s were both illegal uses of force under international law with the pretense of protecting the Russian speaking or pro-Russian local population. Russia suffered no significant international consequences for these uses of force. This has had a two-fold effect: (i) facilitateing Russia’s ability and will to use violence to assert its influence in the former Soviet Union; and (ii)  facilitateing the spread of Russian nationalism within Russian society, particularly through imperialism aimed at carving out a ‘greater Russia’ by force.

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Posted in Genocide, Holodomor, International Criminal Justice, International Law, Russia, Soviet Union, Ukraine | 2 Comments

Without accountability in the U.S., this won’t be the last January with an insurrection

Posted on January 19, 2023 by Mark Kersten
Bolsonaro supporters storm Brazil’s National Congress building (Photo: AP)

Images of supporters of former President Jair Bolsonaro storming the Congress buildings and Supreme Court in Brasília early this month were disturbing yet unsurprising. Many saw this coming. Numerous acolytes of Donald Trump encouraged and helped plan the attacks on Brazil’s democratic institutions. But blaming the Trump administration is too easy. The more difficult lesson is the failure of accountability. This is what happens when states like the U.S. fail to bring to justice those most responsible for insurrection and domestic terrorism. 

As mobs began their attack in Brasília, observers immediately made the connection to the 6 January 2021 riots in Washington. For example, Democratic Congresswoman Alexandria Ocasio-Cortes stated: “Nearly 2 years to the day the US Capitol was attacked by fascists, we see fascist movements abroad attempt to do the same in Brazil.” 

Right-wing America’s fingerprints were all over the events in Brazil. Trump sycophants like Steve Bannon and Stephen Miller moonlight as Bolsonaro advisors, strategizing with the former leader on how to contest Bolsonaro’s October 2022 presidential election loss to Luiz Inácio Lula da Silva. They didn’t look far for their master plan, effectively lending Bolsonaro their own playbook. 

Bolsonaro has put his own spin on Trump’s “Stop the Steal” strategy, whereby the erstwhile Brazilian leader’s supporters reject the election results, spread disinformation about the integrity of the 2022 polls, and instigate an insurgence against democratic state institutions. Neither Bolsonaro nor his American friends tried to hide their nefarious scheming. According to Human Rights Watch, the assault on Brazil’s Congress and Supreme Court was the result of a “years-long campaign by former president Jair Bolsonaro and his allies”. As mayhem in Brasília unfolded, Bannon was ready; he called the mob in Brasília “freedom fighters”.

Two of the most important democracies in their regions and in the world – the U.S. and Brazil – have both now witnessed disenchanted former presidents incite mobs to undermine the rule of law. This won’t be the last January of insurrection unless ringleaders are held accountable.

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Posted in Brazil, United States | 2 Comments

Fair Labelling the Crime of Starvation: Why Ratifying the War Crime of Starvation Matters

Posted on January 16, 2023 by Mark Kersten

Cloé Dubuc joins JiC for this guest-post on the war crime of starvation. Cloé is an L.L.M candidate at Laval University and assistant director of the International Criminal and Humanitarian Law Clinic.

A Rohingya refugee carries a bag of rice near Balukhali refugee camp, Bangladesh (Photo: AFP)

In the midst of the war in Ukraine, allegations of Russia’s use of starvation tactics are mounting. Several sources have reported obstruction of humanitarian access and shelling of food storage facilities. Ukraine’s Foreign Minister has described these tactics as “hunger games” played by Russia.

Similarly, recent investigations have found widespread destruction and looting of food, agricultural products, livestock, markets, and crops in several counties of South Sudan. These deliberate starvation tactics have forced hundreds of thousands of civilians to flee, exacerbating food insecurity and famine in the country. The World Food Program now estimates that 8.3 million South Sudanese – 75% of the population – are suffering from severe food insecurity.

While the situations in Ukraine and South Sudan shadow the same phenomenon and are leading to similar consequences for those targeted, victims are not provided with the same recourse to justice. As of today, a critical gap remains in the fight against impunity for these so-called starvation tactics. Indeed, the International Criminal Court (ICC) currently lacks the legal capacity to prosecute perpetrators in South Sudan for destroying livestock and crops. The reason? The use of starvation as a method of warfare is only criminalized as a war crime in international armed conflicts (IACs) under the Rome Statute (see Article 8(2)(b)(xxv)).

As conflicts today increasingly take the form of civil wars, rebel insurgencies, or other types of internal violence, the urge to close the Rome Statute’s gap is even greater. This pressing call for action was partially answered in 2019, when Switzerland proposed an amendment to the Rome Statute to criminalize the use of starvation as a method of warfare in non-international armed conflicts (NIACs). The proposal was unanimously adopted by the ICC’s state parties and subsequently ratified by 11 countries. 

This ongoing development was welcomed during the 21st session of the Assembly of State Parties of the ICC at the side event titled “Strengthening the Protection of Civilians: Why Ratifying the War Crime of Starvation Matters”. The panelists called for broader ratification of the Starvation Amendment (see here for an explanation of the Rome Statute’samendment regime). This event was organized, among others, by the Global Rights Compliance Foundation (GRC) and was aimed at launching the GRC Ratification Guidebook.

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Posted in Crimes against humanity, International Criminal Court (ICC), International Humanitarian Law, Rome Statute, Rome Statute ratifications, Starvation, War crimes | Tagged , | 3 Comments

Disappeared Justice: ICC Action in Mexico should not be postponed any longer 

Posted on January 11, 2023 by Mark Kersten

Roberto Ochoa joins JiC for this blog post on the potential preliminary examination of the situation in Mexico by the International Criminal Court. Roberto is a Mexican lawyer and political philosopher who has been working for more than 10 years with victims of the war on drugs in his country.

Forensic scientists search a grave of a disappeared person in Mexico (Photo: AP)

Since 2012, the International Federation for Human Rights (FIDH) in collaboration with Mexican organisations has repeatedly sent communications to de Office of the Prosecutor (OTP) at the International Criminal Court (ICC), asking them to open a preliminary examination into the situation in Mexico. A preliminary examination is the phase conducted by the ICC prior to deciding whether to open an official investigation. Mexico is a party to the Rome Statute since 2006. The only publicly available official response provided by the OTP to date shows that no material analysis has been undertaken. The OTP has expressed, in summary, that the gross human rights violations in the country cannot be legally considered as crimes against humanity because they are the result of a broader context with different elements, such as the structural weakness of the administration of justice, a high level of impunity, and increases in organized crime. The costs of looking away from this crisis are growing every day and there is the risk of the situation becoming unmanageable very soon.

For decades, academics and observers have insisted quite rightly that Mexico must stop merely being the United States of America’s backyard, the place where what is not wanted is hidden or cast aside. In 1994, Mexico, the U.S. and Canada signed the North American Free Trade Agreement, transforming the region into the largest and most active economic zone in the world. However, unlike with the European Union, the possibility of a more comprehensive integration (e.g., in terms of labour and migration) was immediately ruled out. Neoliberalism, the fantasy of the self-regulating market that economist Karl Polanyi warned about 40 years earlier, was on the rise. Based on that belief, allowing the free passage of all goods through international borders and boosting trade and thereby economic prosperity was the perfect way to generate value for society. There were warnings regarding the blind spots that threatened to undermine such aims (e.g., José Angel Conchello on one side of the political spectrum and the EZLN on the other). Nonetheless, governments at the time decided to ignore such warnings. The consequences for Mexico have been devastating.

Not a day goes by in which Mexicans are not exposed to gross human rights violations. Thousands of mothers have dug the earth with their bare hands in search of their children’s remains. They are not looking for the culprits and yet, they are regularly threatened and some even murdered. Fifteen such cases have been documented, including 5 of them in 2022.  Over the past few decades, the country has broken down to such degree that crime has become a principal occurrence in the country. The rationale behind these horrors continues to escape us. We have certain figures (more than 109,000missing persons) and certain stories (for example, the justification given by President Felipe Calderon to the militarization of public security because the government must fight organized crime), but what we know about the violence in Mexico is only the tip of the iceberg of a very complex phenomenon that is continually getting worse.

It is time for international justice institutions to intervene. We do not need more documentation, theories, or interpretative accounts of what is happening in the country. As long as judicial proceedings are not properly carried out, we will remain in the dark. Between 94 and 96 percent of the serious crimes committed in Mexico go unpunished, while impunity for enforced disappearance cases is above 99 percent. 

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Posted in Enforced Disappearance, ICC Prosecutor, International Criminal Court (ICC), Mexico, Preliminary Examinations | Tagged | 4 Comments

The View from Ukraine: Why a New International Criminal Tribunal to Prosecute Russian Aggression is Needed

Posted on January 5, 2023 by Mark Kersten

The following guest-post arguing for a special tribunal to prosecute Russian aggression in Ukraine was written by Volodymyr Pylypenko. Volodymyr holds a PhD in Law and is an Associate Professor in the International Relations Department of Lviv University of Business and Law, Ukraine.

(Photo: AP)

Since the beginning of the armed aggression unleashed by the Russian Federation against Ukraine, tens of thousands of Ukrainians have died or been deemed missing. Many towns and villages have been destroyed, and the state and civilians have suffered enormous material losses. Millions of Ukrainians have been forced to leave their homes. The consequences of Russian aggression, in all their cruelty and cynicism, are comparable to the horrors of the Second World War.

Russia’s aggressive war against Ukraine has been one of the most flagrant violations of Article 2(4) of the Charter of the United Nations (UN) since it entered into force. Shortly after the aggression started, the UN General Assembly voted in favour of a resolution demanding that Russian immediately stop offensive behaviour and withdraw its troops from Ukrainian territory. Ukraine and “most of the world’s nations” condemned Russia for planning and executing aggression.

Following the invasion, millions of Ukrainians turned their eyes onto the International Criminal Court (ICC), as the only permanent body of international criminal justice with relevant powers. This court has jurisdiction over those most responsible for committing international crimes, including war crimes, crimes against humanity, genocide, and the crime of aggression.

The ICC has mechanisms to bring to justice those guilty of the crime of aggression, and it gave the global community reasons to hope that Vladimir Putin and his supporters would be condemned for launching an aggressive war against Ukraine. However, that did not happen as expected. In reality, everything has been much more complicated.

Clause 2 of Article 8 bis of the ICC Statute provides that the actions specified in the UN General Assembly resolution 3314 (XXIX) of 14 December 1974, are the acts of aggression. However, Articles 15 bis and 15 ter of the Rome Statute, define the conditions for the ICC to exercise its jurisdiction over this crime. According to the rules of Article 15 bis, the Court may proceed with an investigation on the crime of aggression if the investigation is initiated by a State that has ratified the Statute (i.e., a state referral) or proprio motu if the Prosecutor of the ICC concludes that there is a reasonable basis to proceed with such investigation.

That same article also states that the ICC shall not exercise its jurisdiction over the crime of aggression and cannot proceed with an investigation with respect to a State that is not a party to the Rome Statute when the act of aggression was committed by that State’s nationals or on its territory.

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Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine | Leave a comment