Tuesday, 22 March 2022

Conflict in the Ukraine (8) - Aggression

" ... aggression, ... is not only an international crime;  it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." - Nuremberg judgment 1 October 1946

The former Prime Minister Gordon Brown and many others are calling for a Special Tribunal to be created with a view to trying the Russian President (Vladimir Putin) and his accomplices for the Crime of Aggression in Ukraine -

Press Release: Calling for the Creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine | The Office of Gordon & Sarah Brown (gordonandsarahbrown.com)

and please read the Statement and Declaration.

Aggression - its definition and ICC jurisdiction:

The International Criminal Court (ICC) is founded by the Rome Statute of 17 July 1998 - Rome_Statute_English.pdf (icc-cpi.int)

The Statute defines the crime of aggression in Article 8 bis which was added to the Statute following the Kampala Review Conference held in 2010 

Reaching agreement

on a definition was difficult but questions about the jurisdiction of the ICC over the crime of aggression were even more difficult. 

It is plain that President Putin - no doubt assisted by other senior figures - planned, prepared, initiated and executed the military attacks on Ukraine. Putin is obviously in a position effectively to exercise control over the political and military action of the Russian Federation. Further, it is crystal clear that the Russian military action is of such gravity and scale that there is a manifest violation of the Charter of the United Nations. 

On 2 March 2022, the Russian action was condemned by the United Nations General Assembly - U.N. General Assembly Approves Resolution Condemning Russia’s Invasion - The New York Times (nytimes.com) and UN resolution against Ukraine invasion: Full text | Russia-Ukraine war News | Al Jazeera

In short, Putin's actions appear to come well within the definition of aggression in the ICC Statute Article 8 bis. (Whether there is actual guilt would fall to be decided by a duly constituted court or tribunal at which Russia has a proper opportunity to defend its actions).

The problem for the ICC is that its jurisdiction over the crime of aggression is narrow. In the absence of a UN Security Council referral, the ICC is not able to exercise jurisdiction over aggression in respect of a State that is not a party to the ICC Statute and that includes Russia. The lack of jurisdiction is clear from Article 15 bis (5) of the ICC Statute.

A Security Council referral will not occur because of the right of Russia as a Permanent Member of the Council to veto any proposal. The right of P5 members to veto is controversial but  difficult to reform. It is explained at - The Veto and the UN Security Council – Center for UN Reform Education

It is this gap in jurisdiction which Gordon Brown's initiative seeks to fill.

The proposed tribunal - pros and cons:

As is the case with many aspects of international law there is disagreement among legal experts as to whether the proposed special tribunal is a good idea.

An opinion against the proposed tribunal is that of Kevin Jon Heller - Professor of International Law and Security at the Copenhagen Centre for Military Studies - Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea - Opinio Juris

Professor Heller's view has been robustly countered by Dr Carrie McDougall of the Melbourne Law School (University of Melbourne). McDougall presents a strong case that the proposed tribunal is the best available option - Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics - Opinio Juris

Council of EuropeAn Aggression Chamber for Ukraine Supported by the Council of Europe - Opinio Juris

22 March 2022

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