The Russian Federation invaded Ukraine in the early hours of February 24, 2022. Russian President Vladimir Putin described the interference as a “special military operation”; but the international community has called it a crime of aggression.
The human rights organization Amnesty International (AI) was one of the first to classify the conflict as a crime and called for action with those involved. In early March, AI claimed Russia had violated the United Nations Charter by using force in its bilateral relations with Ukraine.
The Charter contains the principles of international relations and the rule in Article 33 on the peaceful settlement of disputes. It specifies that the conflict between the parties “the continuation of which could jeopardize the maintenance of international peace and security” must find a peaceful solution – negotiations, investigations, mediation, conciliation, judicial settlement.
For AI, the Russian invasion “is defined by a single trait: aggression. Russia is penetrating the heart of Ukraine in an attempt to overthrow its legitimately elected government, with massive actual and potential repercussions on the lives and well-being of civilians; None of the reasons given by Russia remotely justify its actions. And all of this is committed by a permanent member of the UN Security Council.”
AI Ukraine director Oksana Pokalchuk exposed the reasons why the Russian invasion is viewed as an act of aggression and what the implications are. Pokalchuk’s argument is based on the Rome Statute’s definition of the crime of aggression. The latter is a constituent document of the International Criminal Court (ICC), adopted in July 1998 at the United Nations Diplomatic Plenipotentiary Conference establishing the Court.
WHAT IS A CRIME OF ACTIVITY?
For many, aggression crimes are similar to war crimes, but these are two distinct concepts. Despite this, in the current context, the term “war crimes” has been used to qualify what is happening in Ukraine due to humane treatment during the conflict.
Aggressive crimes are – according to the Rome Statute – those in which a government or state commits armed force “against the sovereignty, territorial integrity or political independence of another state or otherwise inconsistent” with the United Nations Charter. These crimes are committed by a person possessing the political or military power of a state. “The person in question plans, prepares, initiates or carries out an act of aggression which, by its nature, seriousness and extent, constitutes a manifest violation of the Charter of the United Nations,” the statute specifies.
In order to commit such an act, no explicit declaration of war is required. United Nations General Assembly Resolution 3314 (of December 14, 1974) reveals the events that become crimes of aggression:
a) the invasion or attack by the armed forces of one State on the territory of another State; or any military occupation, even temporary, resulting from the invasion or attack; or any forcible annexation of the territory of another state or part thereof.
b) The bombing of the territory of another State by the armed forces of a State or the use of arms by a State against the territory of another State.
c) The blockade of the ports or coasts of a State by the armed forces of another State.
d) The attack by the armed forces of a State against the land, sea or air forces of another State, or against its merchant or air fleet.
e) the use of armed forces of a State located in the territory of another State with the consent of the receiving State in violation of the conditions set out in the agreement; or any extension of its presence in that area after the termination of the Agreement.
f) The act of a State allowing its territory which it has placed at the disposal of another State to be used by that other State to commit an act of aggression against a third State.
g) deployment by or on behalf of a State of armed gangs, irregular groups or mercenaries to commit acts of armed violence against another State of such gravity that they are comparable to the acts listed above; or their material involvement in such acts.
There is also a document that explains the structure of aggression crimes. The text belongs to the Rome Statute. The first component is that the offender planned, prepared, initiated or carried out the crime. This person is someone “in a position to effectively control or direct the political or military action of the State that committed the act of aggression”. The text states that the perpetrator “must be aware of the actual circumstances which have shown that the use of armed force was inconsistent with the Charter of the United Nations”.
These details revealed by Pokalchuk establish that Valdímir Putin is responsible for a crime of aggression as he was the person who ordered and maintained the intervention in Ukraine despite economic sanctions and international opposition to the United Nations war.
IMPOSSIBLE TO PUNISH PUTIN FOR THE CRIME OF AGGRESSION
Can the International Criminal Court investigate or punish the Russian leader for this conflict? Pokalchuk was clear about this: no. The ICC does not have jurisdiction because neither Russia nor Ukraine is a member of this court and this is one of the conditions for being able to execute those involved.
It is permissible to clarify that Ukraine has undertaken to cooperate with the court because in 2015 it recognized the jurisdiction of the court for certain crimes committed on its territory since November 2013. For its part, Russia signed the Rome Statute in 2000, only to withdraw its signature 16 years later and in defiance of the powers of the ICC.
The only way the ICC could punish Putin would be if the United Nations Security Council requested it; but in this case Russia has a right of veto, for which it seems impossible to initiate criminal proceedings for responsibility for a crime of aggression.
Still, in late February 2022, amid international pressure to end the war, ICC prosecutor Karim Khan said he would launch an investigation into alleged crimes committed before and during the Russian invasion involving each of the parts.
In December 2020, Fatou Bensouda, now a former ICC Prosecutor, stated that war crimes and crimes against humanity were being committed in Ukraine. This follows the findings of a preliminary ICC inquiry into crimes committed in Ukraine during the 2013-2014 suppression of protests in Kyiv.
Given the ICC’s impossibility of prosecuting Putin for crimes of aggression, Pokalchuk said that “a special mechanism (i.e., an international court) should be established to prosecute all those responsible for the crime of aggression in Ukraine.” The human rights defender stressed the responsibility of the international community to find ways to make the execution possible. “Once again, it is important that perpetrators of war crimes are held accountable. But accountability for aggression – the cause of war crimes – is no less important. We can only fulfill the promise of ‘never again’ if we, as the international community, hold the perpetrators of the crime of aggression accountable,” he concluded.
So far the war in Ukraine has left casualties on both sides and a country in crisis. Attacks in residential areas have prompted massive population migration, including the displacement of 4.3 million children. Of these, more than 1.8 million crossed borders into neighboring countries as refugees; Meanwhile, 2.5 million infantrymen moved internally on Ukrainian territory.
According to a report by the UN Human Rights Monitoring Mission in Ukraine, “more than 1,035 civilians have died and at least 1,650 have been injured”; although these numbers could be misaligned.
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