International Criminal Court jurisdiction for crimes in Ukraine

Its not complicated except for one detail

I’ve been listening to quite a few podcasts over spring and summer plus reading a lot in relation to the genocidal war Russia is waging in Ukraine (future posts will be about my qualification of the war as genocidal).

A fundamental mistake being made time and time again in audio and print is about the International Criminal Court’s (ICC) jurisdiction.

Russia and Ukraine are not parties to the Rome Statute, not to be mistaken with the Rome Treaty (foundational EU).

Russia was a party but withdrew after its prelude to genocide war, the Crimea annexation. It could see the writing on the wall.

Ukraine, for reasons to be discussed in the future, was not a party to the treaty. Why it still isn’t, is a reason for concern. There are ‘complicated’ internal reasons, ‘complicated’ always means there’s something dark beneath the surface. This isn’t an Ukraine issue, the USA isn’t a party to the ICC and in fact, has a law allowing the USA to invade Holland to liberate US citizens, especially soldiers, being held there for trial by the ICC. I’m not joking. “The Hague Invasion Act” was passed in 2002 during the peak of American warfare not on terrorism but on international law. The ICC, luckily, and the Taliban, catastrophically, both survived these campaigns.

So how does the ICC have jurisdiction?

Here is the slightly complicated bit. For the ICC to act, it must have jurisdiction and exercises that jurisdiction.

“[T]he Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court” - art 12. par. 2 of the Rome Statute. This covers crimes on the territory of party states (State Party, like say Germany) or accepting state (Ukraine) or by their nationals. This is stunningly simple. Putin sitting in the Kremlin is 100% liable for crimes committed under his orders or for which he is culpable through negligence on the territory of Ukraine without ever putting a foot on its territory, which he has on many occasions, especially Crimea, or personally executing and torturing on the territory of Ukraine. This is as simple as shooting a man across a border. The crime is committed in Ukraine.

Jurisdiction is exercised by the ICC if a single State Party (39 of them have) or the Security Council refers the situation to the ICC Prosecutor. The ICC prosecutor has duly opened investigations. The ICC has jurisdiction. There would be an issue if no State Party referred the situation to the ICC prosecutor even if Ukraine accepted jurisdiction, but obviously that’s not the case.

This covers three of the spheres of the jurisdiction of the ICC - genocide, war crimes and crimes against humanity (art. 5 a) to c) of the Rome Statute).

The complicated bit is the crime of aggression (art. 5 d) of the Rome Statute). Because of US terror of its glorious soldiers and politicians one day being charged with the crime of war of aggression (Iraq, cough cough), there is a complicated mechanism relating to the crime of aggression (war of aggression).

Under art. 15 bis5 (yes that’s correct) paragraph 5 - a referral to exercise jurisdiction cannot be made against a non-State party (Russia) citizens (Russians: Putin, Shuigo and his band of murderers) by State Parties - even if Germany (plus 38 others) wanted it and Ukraine accepted.

EXCEPT… when the Security Council of the United Nations refers the crime of aggression to the ICC (art. 13 b and art. 15 ter6). Which won’t happen because Russian veto.

But the crime of aggression is a piece of law that the Soviet Union pressed at Nuremberg in order to make the great crime of the Nazis at Nuremberg, not the Holocaust or Slav genocides (Poles, Belarussians, Ukrainians mostly) but attacking great Rodina. I will write about this in the future. The first Nuremberg trial called ‘war of aggression, the crime of crimes, ‘the supreme international crime’ - phrasing, which we nowadays use for genocide, not the crime of attacking the Rodina.

The complication about jurisdiction on the crime of aggression does not excuse the terrible mistakes made in press and podcasts.

For instance here at 27:00:

Angry Planet is an excellent podcast but the usually excellent law professor John Barrett should know better with his talk about sovereignty and especially ‘we have an international criminal court, Russia and Ukraine aren’t part of it, the ICC doesn’t have any obvious jurisdiction to prosecute’. Well, it obviously does and is exercising that jurisdiction. Getting Putin to Oude Waalsdorperweg 10 is a completely different matter from the issue of legal jurisdiction.

As stated in this: “On 2 March 2022, the Prosecutor announced he had proceeded to open an investigation into the Situation in Ukraine on the basis of the referrals received. In accordance with the overall jurisdictional parameters conferred through these referrals, and without prejudice to the focus of the investigation, the scope of the situation encompasses any 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.”

PS the Ukrainian acceptance of ICC jurisdiction is flawed, take a read, they’re trying to limit jurisdiction to crimes committed by Russian officials and ‘traitors’. That’s not good lawyering and will lead to severe procedural issues in the future unless these resolutions are corrected retroactively.

PPS if you don’t believe me… here’s a better lawyer, Tom Dannenbaum.

Picture icon via ICC

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