THE HAGUE
The International Criminal Court’s prosecutor has put combatants and their commanders on notice that he is monitoring Russia’s invasion of Ukraine and has jurisdiction to prosecute war crimes and crimes against humanity.
But Prosecutor Karim Khan acknowledged that he cannot investigate the issue that is being most talked about at this stage of the invasion — the crime of aggression.
Western leaders have widely condemned Russian President Vladimir Putin’s order to invade Ukraine. U.S. President Joe Biden on Thursday said the invasion “was always about naked aggression, about Putin’s desire for empire by any means necessary,” while British Prime Minister Boris Johnson called it “Vladimir Putin’s war of aggression.”
While the global treaty that established the Hague-based court in 2002 has been updated to include the crime of aggression since 2018, Khan said he does not have jurisdiction over that because neither Ukraine nor Russia is among the court’s 123 member states.
The only way the court could get jurisdiction over the crime of aggression in the conflict in Ukraine is if the United Nations Security Council were to call on the ICC to investigate.
That “ain’t going to happen,” said Brendan Plant, a Fellow of the Lauterpacht Centre for International Law and Downing College at the University of Cambridge, because Russia is one of the council’s veto-wielding permanent members.
Putin has sought to justify his invasion by warning that pro-Russian rebels in eastern Ukraine faced what he called genocide from Ukrainian forces.
Plant called it a “concocted” legal justification.
“Even if this twisted invocation of the right of self-defense were accepted, it’s extremely difficult to see how such a wide-scale invasion, with incursions across multiple sites across the country, well beyond even the most expansive territorial claims of the separatist regions, could be justified as a necessary and proportionate act of self-defense,” he said.
