The International Criminal Court: Whether the Crime of Aggression in Ukraine

Abstract

Summary Since the establishment of the International Criminal Court (ICC) almost two decades ago, the crime of aggression has not been tested. The Russian invasion of Ukraine seems to provide a fitting opportunity. However, the ICC lacks jurisdiction over the crime of aggression in the current Russian/Ukrainian war. Nevertheless, 24 February 2022 marked the beginning of a renewed attack, as Ukraine witnessed unimaginable proportions of human rights violations, deaths, sufferings, and displacements due to the Russian invasion. While it is incontrovertible that the crime of aggression has been committed by President Vladimir Putin of Russia against Ukraine, and the ICC has begun the investigation of crimes against humanity and war crimes, jurisdictional questions looms. The ICC is empowered to investigate, prosecute, and punish individuals for international crimes, close impunity gaps, and ensure accountability for the ongoing heinous crimes being committed in Ukraine. How can justice be served specifically to Ukrainian victims and generally to the international community for the atrocities being committed and for the crime of aggression? Since the ICC lacks jurisdiction, would the setting up of a special tribunal or hybrid court be better to deal with the situation? How would such special tribunal deal with the issues of immunity and the practicality of investigations and prosecution? This paper discusses these questions and argues that beyond the referrals to the ICC made by over forty states, it may be imperative for the referring states to utilise the universal jurisdiction principle to investigate and prosecute the crime of aggression.