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

[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

Framing Russia’s unlawful use of force against Ukraine as an other inhumane act, via the violation of the right to self-determination, is not without implications and raises potential problems that need to be further explored. In this second part, we identify and address three main objections to our hypothesis.

Objection 1: Independence Between jus ad bellum and jus in bello

Capturing the unlawful use of force within the framework of crimes against humanity via Article 7(1)(k) implies that specific acts, even if in compliance with IHL, may nonetheless give rise to individual criminal liability when resulting in serious suffering and bodily/mental harm of civilians. This may be at odds with the principle of independence between jus ad bellum and jus in bello, according to which the violation of the former should not interfere with the obligation to respect the latter. This principle is generally considered one of the main incentives for belligerents, as well as individual combatants on the ground, to respect IHL. Put otherwise, if the participation in the hostilities is criminalised per se given that the initial resort to the use of force was contrary to the jus ad bellum, why should the parties to the conflict (and individual combatants fighting on the aggressor’s side in particular) further restrain their military activities to comply with IHL?

This question is crucial to limit the potential over-expansion of responsibility of combatants on the ground who otherwise may be implicated, as accessories, in the commission of crimes against humanity by virtue of their participation in the aggressive acts. Indeed, when acts of aggression are recharacterised as other inhumane acts, the participatory regime is not subject to the limitations provided for in Article 25(3)bis, that narrows responsibility for the crime of aggression only to “persons in a position effectively to exercise control over or to direct the political or military action of a State”. There is no such provision (the so-called “leadership requirement”) for other inhumane acts. Thus, the conduct of combatants would fall under the ordinary forms of participation in Article 25(3)(c) or (d).       

We put forward two main arguments to rebut these objections.

First, it is worth noting that the principle of independence cannot be construed as absolute and unconditional. For instance, state responsibility for the violation of jus ad bellum may cover the compensation of damages caused to individuals and properties even if the underlying conduct was not in breach of IHL (Jackson and Akande, pp. 5-7; ICJ Armed Activities case – Reparation, para. 173; EECC, Ethiopia’s Damages Claims, paras. 333-349). Such an approach already calls into question the solidity of the boundaries between the two bodies of law.

Similar considerations apply with respect to individual responsibility under international criminal law. While applicable only to persons who are able to control/direct a state’s political/military action (Article 25(3)bis), the introduction of the crime of aggression in the Rome Statute defeats, in part, the fundamental premise of the principle of independence, namely that it is instrumental to ensure a wider compliance with IHL. From a qualitative standpoint, the qualification of the same conduct described in Article 8bis as a crime against humanity would not end up altering the balance between jus ad bellum and jus in bello beyond the existing parameters of the Rome Statute. Accordingly, this principle does not preclude the possibility to prosecute the same class of individuals covered by the leadership clause under Articles 8bis(1) and 25(3)bis for the unlawful exercise of the use force when the latter is qualified as an other inhumane act.

Second, such line of reasoning would only apply to individuals in a position to control/direct the political/military action of the state and would not affect the responsibility of combatants on the ground. Under international law, the criminalisation of jus ad bellum violations, which is an “exception” to the principle of independence, does not extend to foot soldiers. Thus, no responsibility should arise on their part even when the act of aggression they contribute to is framed as crime against humanity. This construction would maintain “the promise of immunity from criminal prosecution to individual combatants insofar as they comply with IHL”, which is the main incentive for IHL compliance (p.7). Furthermore, it is consistent with the consideration that only the state’s apical figures are those who effectively shaped the state’s action in breach of jus ad bellum and, ultimately, caused the violation of the right to self-determination.

In conclusion, the principle of independence, which is the very rationale of the leadership clause (Kress, 1134; Bolster and Cryer; p.152) and an established principle of IHL (Article 21(1)(b)), is not incompatible with the criminalization of acts of aggression as other inhumane acts. Conversely, it operates as a filter, in parallel with the participatory model of Articles 8(1)bis/25(3)bis, making the conduct of apical state figures criminally relevant, while exempting liability vis-à-vis individual combatants.   

Objection 2: Contextual Elements

The analysis of whether the identified conduct amounting to other inhumane acts in this specific case meets the requirements of all the contextual elements of a crime against humanity is another question that requires consideration. While the information available confirms the existence of a state policy underlying the attack and its systematic and/or large-scale nature, the remaining questions are (1) whether the unlawful use of force on its own can be considered an attack, rather than be part of such attack; and (2) whether the attack is directed against a civilian population. On the first question, Article 7 paragraph 3 of the Elements of Crimes suggests that a military attack could also constitute an attack for the purposes of the chapeau requirements of crimes against humanity (“[t]he acts need not constitute a military attack”). Arguably, this would be the case if military force is directed against the civilian population. Moreover, qualified as an other inhumane act, the unlawful use of force in breach of the right to self-determination could be conceptualised as part of a broader widespread or systematic attack against the civilian population, even if it preceded “the main attack” (para.100).

On the second question, the objection may be that the focus of the military operations is principally Ukrainian armed forces and military targets, while civilians are simply incidental victims or collateral damage. In this regard, ICC jurisprudence clarified that the decisive criterion in assessing whether an attack has been “directed against a civilian population” is whether “the attack targeted the civilian population” (para. 424, emphasis added). Although this requirement is sometimes described in the jurisprudence as requiring that the civilian population is the “primary object” of the attack, there is no “legal requirement that the main aim or object of the relevant acts was to attack civilians” (para. 424). Jurisprudence that the victims of crimes against humanity need not be exclusively civilian, or even predominately civilian, supports this view (e.g.,Ongwen TJ, para. 2675; Popovic et al. AJ, para. 569; Martic AJ, para. 307). In the present case, it appears clear that Ukrainian civilians and their right to choose their political, cultural and social status are the main target of the attack within the meaning of Article 7(2), where the attack’s objective is the coercion of the Ukrainian people’s self-determination. The assessment of the contextual element can also be informed by the other allegations concerning widespread crimes committed by Russian forces against the civilian population. This should support the inference that, indeed, the Ukrainian civilians were targeted by the attack. 

Objection 3: Risk of Backlash

One question that deserves specific consideration is whether prosecuting the underlying acts of Article 8bis as crimes against humanity may be perceived as an ‘attempt to “dress up” aggression with another name or label’ (pp. 420-421) circumventing the jurisdictional limitations provided by Article 15bis. This may generate backlash/pushback, both by states parties and non-party states. However, such an objection may overlook the distinctive features of the present situation: an act of aggression intended to coerce the right to self-determination of a people. We do not argue that any illegal use of force or aggression automatically translates into crimes against humanity. Rather, this solution may be available only when the act of aggression in question: (i) breaches specific human rights norms; (ii) meets the ejusdem generis requirements of Article 7(1)(k); (iii) results in great suffering, or serious injury to body or to mental/physical health; and (iv) the underlying conduct is materially distinct from the other acts enumerated in Article 7(1)(a)-(j). This is a case-by-case assessment that cannot be generalised to every instance of jus ad bellum violations. Hypothetically, when such test is met, Article 7(1)(k) should be charged concurrently to Article 8bis (p. 367), capturing the human rights dimension of the underlying conduct of aggression. At the same time, not every violation of the right to self-determination can be subsumed under other inhumane acts unless it meets the strict requirements of Article 7(1)(k). 

Conclusion

Characterising the acts underpinning Russia’s invasion as crimes humanity may raise concerns, especially in terms of balance between jus ad bellum and jus in bello, judicial creativity, and questions concerning the possible construction of the relevant contextual elements. At the same time, while further study may be required to refine our hypothesis, none of these concerns seem unsurmountable or fatal to prevent an ICC investigation according to this line of reasoning. As noted earlier, the possibility to clarify the legal feasibility of such an approach could be tested well before trial, via an Article 19(3) request to avoid extensive use of resources and/or time.