ICC Jurisdiction and the Russian Invasion of Ukraine

This blogpost is an abridged version of a paper written by Monyneath Men. You can read it here: ICC Report Template PDF

Russia’s invasion of Ukraine triggered controversies over international laws, mechanisms, and Russian accountability. In this article, we determine whether the International Criminal Court (“the Court” or “the ICC”) has jurisdiction over the situation.

The Court investigates and, where warranted, tries individuals charged crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.

The Court may exercise its jurisdiction in cases where: (i) the crime must have been committed on the territory of a State Party as set out in article 12 of the Rome Statute (“the Statute”) (ratione loci); (ii) the crimes must have been committed within a specific timeframe (ratione temporis); and (iii) the crime must be one of the crimes set out in the Statute (ratione materiae).

Ratione Loci, Ratione Temporis, Ratione Materiae

Neither Russia nor Ukraine are parties to the Statute. However, Ukraine declared that it accepts the jurisdiction of the court for crimes committed within its territory. In case the situation is referred to the Prosecutor by a State Party, the Court may exercise its jurisdiction if the State on the territory of which the conduct in question occurred has accepted the jurisdiction of the Court.

The temporal parameters of the Court’s jurisdiction are restricted to crimes committed after its entry into force on 1 July 2002. Ukraine has exercised the prerogatives needed to legally accept the Court’s jurisdiction over alleged crimes under the Statute occurring within its territory.

The Court has jurisdiction with respect to the crimes specified in Article 5 of the Rome Statue, which are the crime of genocide; crimes against humanity; war crimes and the crime of aggression.

A. Genocide

The crime of genocide is characterized by the specific intent to destroy in whole or in part a national, ethnic, racial, or religious group by killing its members or by other means. Objective and subjective elements need to be established to constitute genocide.

Objective and Contextual Elements

Among some acts mentioned in Article 6 of the Rome Statute are killing, causing serious bodily or mental harm to members of a group, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.

Mental elements comprise intentionality in committing the act. In times of conflict, if the purpose of killings is aimed at completing military objectives and not the destruction of a group, an intent to genocide would not be established.

B. Crimes Against Humanity

Crimes against humanity are serious violations (rape, apartheid, deportation, torture, among others) committed as part of a widespread or systematic attack against any civilian population.

Objective and Subjective Elements

There must be widespread or systematic attacks directed against any civilian population. The widespread or systematic test is disjunctive; a prosecutor need only satisfy one or the other threshold. An ‘attack’ need not involve the use of armed force and can encompass mistreatment of the civilian population. Lastly, the law of crimes against humanity also covers crimes by a State against its own subjects.

In addition to the requisite mental element for the offences, the accused must also be aware of the broader context in which his actions occur, namely ‘the attack directed against a civilian population’.

C. War Crimes

War crimes are grave breaches of the Geneva conventions in the context of armed conflict. Some examples: child soldiers; killing or torturing civilians and prisoners, intentionally attacking hospitals, etc. To be constitute as war crimes, three elements need to be fulfilled: a nexus with armed conflict, objective element, and subjective element.

Nexus with Armed Conflict, Objective Element, and Subjective Element

A war crime must be linked to an armed conflict. Not all criminal activity on a territory in armed conflict amounts to a war crime. Thus, a murder that happens during a war is not necessarily a war crime.

Grave breaches of the Geneva Conventions and violations of the laws and customs of war under the Rome Statute can be classified as war crimes. Violence is prohibited against non-combatants. Violations of freedoms can be war crimes, too. Other war crimes: taking hostages, excessive civilian damage, certain crimes involving property such as pillaging, the usage of certain weapons, killing POWs, killing during a truce, making improper use of uniforms, and transferring an occupier’s population to occupied territories.

Unlike other international crimes, war crimes must at least one of three mental elements for them to be considered so: intention, awareness, and knowledge.

D. Crime of Aggression

Aggression concerns the jus ad bellum (the laws of conflict). The crime of aggression is the use of armed force by a State against the sovereignty, integrity, or independence of another State. This is done through planning, preparation, initiation, or execution by a person in a position which allows them to exercise a measure of control over the political or military action of a State.

Objective and Subjective Elements

A crime of aggression is committed by perpetrators in leadership positions in a State who have participated in the collective act of the State. Its interpretation and application are not easy. There is disagreement concerning exceptions to the prohibition. The only exceptions universally admitted are individual or collective self-defense and force authorized by the Security Council acting under Chapter VII of the Charter. There is controversy over whether there is also an exception for humanitarian intervention.

Crimes of aggression demand that the perpetrator be aware of the perpetrator be aware of the inconsistencies state actions directed by them actions have with the Charter of the United Nations.

Conclusion

On 2 March 2022, the ICC Prosecutor announced he had proceeded to open an investigation into the Situation in Ukraine based on the State Parties’ referrals and the two ad hoc declarations by the Government of Ukraine accepting the jurisdiction of the Court in 2014 and 2015. Its scope includes past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards. The investigation will not encompass crimes of aggression, as the Rome Statute stipulates.

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