THE HAGUE, Netherlands (CN) — Early on Thursday morning, Russian forces invaded Ukraine while the world watched on in horror. While many ask how this is possible in 2022, legal experts see few avenues to bring Moscow to justice.
President Joe Biden has called the full-scale attack on Ukraine “a flagrant violation of international law." His words are technically correct, as the United Nations charter forbids acts of aggression. But there’s no clear path to hold any person or the Russian state legally liable for the ongoing attack.
The International Criminal Court
The world’s only permanent court for atrocity crimes would seem like the exact place the perpetrators of an illegal invasion would be brought to justice. The International Criminal Court already has an investigation open into the conflict in Ukraine, but The Hague-based court also has a complicated history with the crime of aggression.
Aggression is one of the core crimes established by the Rome Statute, which created the court in 2002. But ICC member states couldn’t agree on a definition of aggression, according Astrid Coracini, a senior lecturer in international law at the University of Vienna. So they kicked the can down the road, including the crime in the treaty but only later creating a definition at the Kampala Review Conference in 2010. The definition includes a carve-out for non-member states, mostly as a concession to the United States. The Russian Federation isn’t a party to the Rome Statute, so no act of military aggression it perpetuates could be prosecuted at the court. In a press release late on Thursday night, the court confirmed that it could not act. "The court cannot exercise jurisdiction over this alleged crime in this situation," chief prosecutor Karim Khan said in a statement.
However, if Russia, or Ukraine, commits other crimes covered by the Rome Statute – for example, war crimes such as recruiting child soldiers or pillaging – the ICC could get involved. Ukraine is also not an ICC member but has given the court permission to investigate crimes on its territory since 2013.
Coracini says the court could either amend the existing investigation, in which outgoing prosecutor Fatou Bensouda found there was a reasonable basis for violations, or open a separate investigation into the latest conflict.
The United Nations
There is another route to The Hague, namely through the U.N. Security Council, which can refer matters to the ICC for investigation. That requires a unanimous vote, and since Russia is a permanent member of the council that seems exceedingly unlikely.
"For any meaningful action, you need approval from the Security Council. And Russia will veto it,” said Tamsin Phillipa Paige, senior lecturer at Deakin University School of Law in Australia.
Russia’s membership on the council would also prevent the U.N. from establishing an ad hoc tribunal to prosecute any crimes that occur during the conflict, as it did with Rwanda and the Former Republic of Yugoslavia.
Like the Rome Statue, the U.N. charter also outlaws the crime of aggression. According to the first article, the purpose of the U.N is to maintain international peace and security, and to that end "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.”
Acts that violate the charter, like invading another country, can only be brought to the International Court of Justice, or ICJ, the principal judicial organ of the U.N., if both parties have opted in. Neither Russia nor Ukraine have signed the so-called optional clause declarations.