Prosecuting Aggression against Ukraine as an “Other Inhumane Act” before the ICC Part I: Prospects

[Giulia Pinzauti is Assistant Professor of Public International Law at Leiden Law School’s Grotius Centre for International Legal Studies. Alessadro Pizzuti (Twitter: @Aless_Pizzuti) is the co-founder and co-director of UpRights.]

The authors would like to thank Miles Jackson and Daniel Gryshchenko for their help and suggestions for this post.

Introduction

The ICC’s lack of jurisdiction over the crime of aggression committed by the leadership of the Russian Federation and Belarus against Ukraine has prompted several voices to advocate alternative avenues to address such a potential impunity gap, including the creation of a new international tribunal (here, here, here and here). Here we explore whether the ICC could exercise jurisdiction over the acts underlying Article 8bis of the Statute, subsuming the relevant conduct under the framework of crimes against humanity. We do so with specific reference to Russia’s attack against Ukraine. The intentional and severe violation of the right to self-determinationof the Ukrainian people caused by Russia’s unlawful use of force, causing them great suffering or serious injury to mental or physical health, can be qualified as an other inhumane act under Article 7(1)(k) of the Statute.

Building on the work of Benjamin Ferencz, Gillett, Ventura, and Einarsen, who explored the possibility of prosecuting aggression/illegal uses of armed force as a crime against humanity, our proposal conceptualises the right to self-determination as the “missing link” between the crime of aggression and other inhumane acts. Our argument also rests on the work of Akande, Jackson, and Liebich concerning the link between jus ad bellum and human rights in light of the approach of the HRC’s General Comment 36.

The first part of the post lays out the possibility to characterise Russia’s attack as an other inhumane act, shifting the legal qualification of the alleged conduct from Article 8bis to Article 7(1)(k). The second part addresses three potential objections that could be raised in relation to this hypothesis, concerning: (1) the independence between jus ad bellum and jus in bello; (2) the contextual elements of crimes against humanity; and (3) the potential backlash in pursuing the suggested course of action.

Whether Russia’s Invasion May Qualify as Other Inhumane Acts

The category of other inhumane acts is a residual clause, the rationale of which is to criminalise conduct not otherwise codified in Article 7(1)(a)-(j) and yet characterised by the same level of seriousness (ejusdem generis rule). To avoid an undue extension of the proviso, Article 7(1)(k) covers only those acts that are similar in terms of nature and gravity to the other underlying acts, and which result in great suffering or serious injury to body or mental/physical health.

ICC jurisprudence clarifies that other inhumane acts encompasses only those acts amounting to serious violations of fundamental rights under customary international law (Katanga Confirmation Decision, para. 448; Myanmar Art.19(3) Decision, para. 77; Ongwen TJ, paras. 2748; also Myanmar Art.15 Request, para. 128). This approach finds its basis in the very rationale underlying crimes against humanity, which aims at criminalising the gravest forms of human rights violations (pp. 115-116). As such, the identification of the conduct as a human rights violation is a starting point to assess whether a conduct can fall within the parameters of Article 7(1)(k) (p. 238).

In the case of Russia’s invasion, understood as the military activities encompassing the acts listed under Article 8bis (2)(a)-(d), these requirements appear to be met. As argued below, it is possible to consider this unlawful use of force: (1) to be in violation of the right to self-determination; (2) to bear similar gravity and nature as the acts under Article 7(1)(a)-(j); and (3) to have resulted in great suffering, or serious injury to body or to mental/physical health.   

The Right to Self-Determination

The right to self-determination, enshrined in multiple covenants (UN Charter, Art.1(2), ICCPR, Art. 1, ICESCR, Art. 1) and international instruments (Declaration on Friendly Relations), protects the right of people to, inter alia, freely determine their political status (ICCPR, Art. 1, ICESCR, Art. 1) including to choose their own government without external intervention (p. 114). As discussed below, while the right to self-determination has collective character, it nonetheless affects individuals’ rights and positions.

Notably, self-determination has a direct relation with the prohibition of the use of force. Art. 2(4) of the UN Charter prohibits the use of force “in any other manner inconsistent with the Purposes of the United Nations”, which include ensuring respect for the principle of equal rights and self-determination of peoples (Art. 1(2)). The UNGA Friendly Relations Declaration states: “Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.” Highly qualified publicists confirm that the invasion of a country for the purpose of coercing a people to choose their political status engages, and violates, their right to self-determination (pp. 137-138). There is no need to achieve a full annexation or complete control of a country. When aimed at coercing people’s will, the unlawful use of force alone is sufficient to cause the breach to the right to self-determination.

Going back to the attack against Ukraine, Russia’s use of force was an “aggression […] in violation of Article 2(4) of the Charter” (UNGA Res. ES-11/1). On 24 February 2022, Russian forces began a large-scale military invasion of Ukraine, and later occupied portions of its territory. The attack involved massive use of air/naval strikes and a naval blockade. This conduct fits with the underlying acts of aggression under Article 8bis (2)(a)-(d) and is a manifest violation of the jus ad bellum.

Statements by relevant authorities indicate that the attack was aimed at changing the current Ukrainian regime (“denazification”); interfering with crucial foreign policy decisions, including the accession to other international organisations (joining NATO); and affecting fundamental security policy in terms of the composition and deployment of that country’s armed forces (“neutralisation”) (here, here, here, here). Putin’s public call for the Ukrainian army to remove Kyiv’s government suggests the intention to interfere with Ukraine’s political independence. When read in conjunction with the 21 February 2022 Address (“Ukraine is not just a neighbouring country for us. It is an inalienable part of our own history, culture and spiritual space […] Ukraine never had a tradition of genuine statehood”), these statements appear to indicate that the intention underlying the invasion was to obtain control over, and possibly annex, a sovereign state – in whole or in part.

According to the “whole people” paradigm, Ukraine’s population can be considered a people entitled to self-determination (Radpey). Indeed, Ukraine is established and recognised as a separate political unit – a state – that represents its entire population (A/HRC/28/64/Add.1, para.30; Pentassuglia. For the identification of the unit entitled to self-determination, see Cassese, p.59; Higgins, p.104; Crawford, p.127). Although Russia views the territory and people of Ukraine as historically Russian, and considers the inhabitants of Donetsk and Lugansk as “peoples” that are entitled to external self-determination, the better view is that ethnic Russians in Ukraine constitute the main minority group within Ukraine (A/HRC/28/64/Add.1, para.3). Russia’s military operations are aimed at coercing the Ukrainian people’s right to freely determine its political status, international alliances and way of government. Accordingly, their right to self-determination is to be considered engaged and violated. The 1 March 2022 Declaration of the Institute of International Law supports this conclusion. The use of force in violation of the right to self-determination is what renders the conduct, as well as its impact on victims, materially distinct from the other acts enumerated in Article 7(1)(a)-(j) (paras. 2745, 2750).     

Nature and Gravity of the Other Inhumane Acts

The specific manner in which the violation of the right to self-determination is perpetrated through the invasion is similar in terms of nature and gravity to the other acts listed as crimes against humanity.

Nature

 The equivalence assessment of nature is conducted through an abstract comparison of the normative status of, and the interests protected by, the right in question vis-à-vis the rights underpinning the other underlying acts (Ongwen TJ, para. 2748; Myanmar Art.15 Request, paras. 134-137). Here, the conduct at issue intentionally violates the right to self-determination. This right is reflected in various treaties (UN Charter), human rights conventions (ICCPR, ICESCR, ACHPR) and international instruments (e.g, UDHR, UNGA Res. 1514 and Res. 1541, Friendly Relations Declaration). The ICJ confirmed that the right to self-determination reflects custom and has an erga omnes character as “one of the essential principles of contemporary international law” (ICJ, Timor East, para. 29; Chagos Opinion, paras. 152, 180). In some limited cases, it has even been described as a jus cogens norm (p.85).

The fact that this right is considered to be a collective right, attached to the people as a whole rather than single individuals (para. 13.3), may give pause. However, while the collective character of the right to self-determination is an obstacle to an individual’s standing to claim its violation, it has no bearing on the question of individual criminal responsibility for violating the right. Other international crimes, including persecution and apartheid, criminalise the targeting of groups or identifiable collectivities of people (p. 413). Similar considerations apply to genocide (p. 139). Moreover, the collective character of the right to self-determination does not mean that its scope, and potential violation, does not affect individual rights. First, self-determination “is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights” (para. 1). Second, the practice of the HRC suggests that the scope of individual rights has to be read in conjunction with the right to self-determination to assess potential violations of the former (HRC, Sanila-Aikio v. Finland, para. 1.4, Guillot et al. v. France, para. 13.4). Leading scholars confirm the correlation between self-determination and the enjoyment of individual rights (Peters, p. 541; McCorquodale, pp. 872, 873). These considerations suggest that the right to self-determination aligns with the nature of the rights underpinning the other acts listed in Article 7(1).

Gravity

 For a violation of the right to self-determination to constitute a crime against humanity, the breach must be sufficiently serious in its characteristics such that it is of comparable gravity to other acts punishable under Article 7(1). There is little guidance on parameters to assess the gravity requirement. Potentially, scrutiny needs to be oriented to the factual circumstances giving rise to the violation (Ongwen Confirmation Decision, para. 88; Myanmar Art.15 Request, para. 138). This may include an analysis of the magnitude of the violation, the manner of its commission, and the degree of victimisation. As for magnitude, while there may be different ways in which the right to self-determination can be violated, the attack conducted against Ukraine appears to be aimed at striking at the very foundation of its protected interest, neutralising any possible choice of government and foreign policy. The demands of regime change, neutrality and demilitarisation, together with the infringement of territorial integrity, touch the very heart of the right to self-determination by interfering with basic choices concerning the political status and the social, economic and cultural development of a people (para.17).

Similar considerations can be made with respect to the manner of commission and the degree of victimisation. As noted, Russia’s use of force was a manifest violation of the jus ad bellum. It encompasses a land invasion and partial military occupation, extensive bombardments, a naval blockade and intensive fighting against Ukrainian forces. Whether or not in compliance with IHL standards, the use of force has caused civilian causalities, extensive destruction of civilian properties and mass-movement of refugees. There are also strong allegations  that the military attack includes criminal means, such as the deliberate targeting of civilians and civilian objects, deprivation of humanitarian assistance, rape and sexual violence. Available information also suggests a progressive erasure of Ukrainian national identity in the occupied territories. Russian authorities are violently quelling protests, interfering with local administration through the installment of new mayors, and organising referendums to create new, separate entities in violation of Article 50 GCIV. The “Russification” of the occupied territories also extends to the use of the Russian language, the replacement of Ukrainian media with pro-Russian broadcasts, and the introduction of the Russian currency, the rouble. Arguably, in the specific circumstances of this case, the breach of the right to self-determination is of comparable gravity to the other acts in Article 7(1).   

Great Suffering, or Serious Injury to Body or to Mental or Physical Health

There is no question that the unlawful use of armed force against Ukraine resulted in great suffering, or serious injury to body or to mental/physical health. By 1 June 2022, OHCHR recorded 9,094 civilian casualties in the country, many of which are due to the use of explosive weapons. There is little doubt that part of them are linked to Russia’s conduct of hostilities. UNCHR estimates the presence of 7.1 million internally displaced, while around 6.9 million people have fled the country. While this movement of individuals may not fulfil the elements of forcible displacement/deportation (Article 7(1)(d)) as it not triggered by a coercive act per se, it may be still relevant under the paradigm of other inhumane acts insofar as it has caused great suffering. Importantly, such suffering can be directly linked to the self-determination violation that materialised with the execution of the act of aggression.

Moreover, as a result of Russia’s invasion, millions of Ukrainians have been deprived of the right to decide their own destiny, freely choose their own political status and pursue their economic, social and cultural development. Even if Russia does not topple the Ukrainian government, this deprivation will hold true at the very least for the people living in Russian-occupied areas. Accordingly, it can be argued that this level of suffering satisfies Article 7(1)(k)’s last element.

Conclusion

While the possibility of articulating Russia’s attack against Ukraine as an other inhumane act requires further study, it would offer some advantages in the context of the ICC investigation. First, the proposed prosecutorial strategy would permit obtaining a conviction for other inhumane acts that would “inherently recognize and implicitly condemn the illegal use of force” (p. 533) against the sovereignty, territorial integrity or political independence of Ukraine that violates the right to self-determination of its people and causes them great suffering. While this solution would have its challenges, it would not be barred by the sui generis jurisdictional regime applicable to aggression. Setting aside the symbolic value of having a conviction for the crime of aggression, which a newly-created international tribunal could achieve, the material conduct could still fall within ICC scrutiny. While a prosecution for other inhumane acts may be viewed as a second-best alternative, using the existing toolbox rather than establishing a new tribunal would have its advantages.

Second, it may considerably limit the evidentiary burden for the Prosecution concerning the potential responsibility of Russia’s leadership. In contrast, other allegations raised these days concerning crimes against civilians, deportations and unlawful attacks may still require a complex linkage analysis in this regard. Third, confirmation of the solidity of the proposed legal construction may also not require long litigation. Subject to the principle of complementarity, it may occur before trial, at arrest warrant level, or through an Article 19(3) request.