Approaching RUS-UKR War as a Crime of Aggression
Below please see a collection of resources to provide a perspective on a hotly debated recent topic: Can international community try Putin over committing crime of aggression in Ukraine?
The Crime of Aggression: "Mother of all crimes" or "The supreme crime under international law"
“Ursula von der Leyen, president of the European Commission, announced on November 30, 2022, an EU proposal to set up a court, backed by the United Nations, to investigate and prosecute Putin for the crime of aggression. However, it’s far from certain that senior Russian leaders will be brought to justice under international law.” Source: How War Crimes and the Crime of Aggression Are Being Pursued Against Russia - Bloomberg
?What is the crime of aggression? and What makes the "crime of aggression" special?
“The crime of aggression is often called the 'mother of all crimes' or ‘the supreme crime under international law.’ as it sets the stage for war crimes, crimes against humanity, and genocide. Given the fact that other international crimes derive from the crime of aggression, it has absorbed all of them (accumulated evil of the whole).” Source: How to apply the Nuremberg model for Russian war crimes (euobserver.com)
?“Aggression was one of the four crimes listed in the Rome Statute of the International Criminal Court-ICC when the treaty was adopted in 1998. The crime of aggression is defined in art. 8bis in the Rome Statute of the ICC adopted at the 2010 Review Conference in Kampala. From 17 July 2018, the International Criminal Court (ICC) will be able to prosecute leaders responsible for waging aggressive war - with conditions. Article 8 bis focuses on the most responsible: Leaders. It applies to individuals, not states. It may be the fourth (genocide, war crimes, and crimes against humanity) core crime tried at the ICC. Cases of the lawful individual or collective self-defense, as well as actions authorized by the Security Council, are thus clearly excluded. It also stipulates that the ICC will not have jurisdiction over ICC member states, or their nationals, that have not ratified these amendments in the case of a state referral or proprio motu (initiated by the ICC prosecutor) investigation. However, ICC judges maintain their independence in ruling on jurisdictional matters and referrals from the UN Security Council have no jurisdictional limitations.” Source: Crime of Aggression | Coalition for the International Criminal Court (coalitionfortheicc.org)
?“What makes the "crime of aggression" special, is that it is a so-called leadership crime that can only be committed by those in power, rather than those who carry it out. It means it can target Russian president Vladimir Putin, rather than those who executed his orders.” Source: Legal scholars: Prosecuting Putin 'legally problematic' (euobserver.com)
But…
?“The Ukrainian idea of a Special Tribunal against the top leadership of Russia has its explicitly defined "creators". This idea has been in the works since the last days of February this year, when leading British international lawyer, professor Philip Sands QC, published an article in the Financial Times raising the question of why we should create a special tribunal that can try the leadership of the Russian Federation for the crime of aggression against Ukraine. First of all, it has to be clarified that no permanent or existing international judicial institution is endowed with jurisdiction over Russian high-ranking officials. The International Criminal Court in the Hague is investigating the situation in Ukraine. However, it exercises jurisdiction over three types of the most serious international crimes: the crime of genocide, crimes against humanity, and war crimes.” Source: How to apply the Nuremberg model for Russian war crimes (euobserver.com)
?“Except in the case of UN Security Council referrals, non-ICC member states are excluded from the Court’s jurisdiction over the crime of aggression, regardless of victim or aggressor status. The crime of aggression against Ukraine cannot be considered by the court, since neither Ukraine nor Russia has ratified either the Rome Statute of the International Criminal Court or special amendments to it.” Source: Crime of Aggression | Coalition for the International Criminal Court (coalitionfortheicc.org)
?“Legal scholars argued on Monday (28 November 2022) that, without the backing of the UN General Assembly, it would be legally challenging to set up a tribunal to prosecute Russian aggression against Ukraine. Carl Bildt, the co-chair of the European Council on Foreign Relations (ECFR) and former prime minister of Sweden said that going through the ICC is impossible currently and suggested that other ways for prosecution could include an agreement between the EU and Ukraine or involve the Council of Europe. Another option would have the UN General Assembly ask the secretary general to set up a tribunal.” Source: Legal scholars: Prosecuting Putin 'legally problematic' (euobserver.com)
“However, Professor Philippe Sands, an expert on international law at University College London, says the ICC couldn't prosecute Russian leaders such as President Vladimir Putin for this - again, because the country isn't a signatory to the court. In theory, the UN Security Council could ask the ICC to investigate this offence. But Russia could veto this. Prof Sands says world leaders should set up a one-off tribunal to prosecute the crime of aggression in Ukraine.” Source: Ukraine conflict: What war crimes is Russia accused of? - BBC News
NATOVET Focus Question:
Considering all, the larger question remains: Although with good intentions, does this have the potential to push a neurotic dictator to the very edge and cause him to over-react and trigger a dooms day scenario?
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Time will tell…
Further reading on the topic:
Ph.D. Researcher, Technology Policy & Regulation, Global Governance for the Digital Ecosystems
2 年While both the RUS-UKR war of proxies and Putin's presidency continue, the EU's effort to make Putin the sole person responsible for all the suffering and crimes committed are questionable in terms of their possible consequences. Given Putin's personality and the nuclear power he controls, targeting Putin in person will only serve to make Putin feel helpless and provoke him to do something crazy. To stop Putin from using his nuclear weapons, the first target should not be Putin in person, but the group of soldiers, bureaucrats, and civil servants who support him. The group mentioned above must be deterred. These efforts will not only overcome the drawbacks of targeting then provoking Putin personally but will also contribute to a solution by reducing support for Putin. We couldn't prevent the war, unfortunately. Diplomacy didn't work or we didn't use diplomacy at all, but that phase is over. Today, instead of talking about who pays how if Putin uses nuclear weapons, we should maybe focus in our full capacity on how we can prevent Putin from using nuclear weapons, whoever can do it, and how they can do it.