07 Mar The Court of the Citizens of the World: Opinion of Stephen Rapp, Judge of TCCW
[Stephen Rapp is a former US Ambassador-at-Large for Global Criminal Justice and former international prosecutor at Rwanda and Sierra Leone tribunals.]
The Court of the Citizens of the World’ – a peoples tribunal – was organized by the Cinema for Peace Foundation, relating to the crime of aggression in Ukraine. The tribunal considered charges brought against Vladimir Putin for the crime of aggression presented by a Prosecution team, and heard witness testimony from 20 – 23 February 2023 in public hearings in The Hague. The three judges at this tribunal – Zak Yacoob, Stephen Rapp and Priya Pillai – came to a decision regarding confirmation of the charges, and these posts are their independent reasons relating to the decision, pronounced at the last hearing of the tribunal on 24 February 2023.
24 February 2023
We have determined that there is sufficient evidence to indict and arrest Vladimir Putin for the Crime of Aggression. We have decided to confirm an Indictment and have asked the Registry to make its text widely available to the public.
This morning I wish to speak about the applicable law and how it fits this situation. My colleagues will describe the evidence and explain how its supports findings of criminal conduct by the Accused, and why it meets the substantial evidence standard for confirmation of an Indictment (Article 61, Rome Statute)
The Definition of the Crime of Aggression
Article 8bis of the Rome Statute of the International Criminal Court (ICC) defines the Crime of Aggression as follows:
… the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
However, because of the terms of Rome Statute Article 15bis, the ICC does not have jurisdiction over the Crime of Aggression allegedly committed by Russian citizens on the territory of Ukraine (while it does have jurisdiction over alleged War Crimes, Crimes Against Humanity, and Genocide committed by Russian citizens in Ukraine since November 2013 by reason of Ukraine’s two declarations filed under Rome Statute Article 12(3)).
However, we conclude that the ICC definition of the Crime of Aggression can and should be applied to the acts of Russian citizens in Ukraine because it reflects customary international law applicable to all the citizens of the world. We do so because we are sitting as an international tribunal of a kind that could be established under a treaty between the State of Ukraine and the Secretary General of United Nations, acting on the recommendation of the UN General Assembly (UNGA), representing the international community as a whole.
While the Rome Statute’s definition of crimes is not always reflective of customary law, it is so reflective in the case of the Crime of Aggression, as the text of Article 8bis was approved unanimously by ICC States Parties and Non-Party States, including Russian representatives in conferences up to and including the ICC Kampala Review Conference in 2010. While the adoption of the aggression amendments to the ICC Statute was contentious, the controversy always involved the conditions for the exercise of jurisdiction, now reflected in Rome Statute Article 15bis. Indeed, the Russian delegation specifically stated that it approved the definition of the crime. Any questions about the definition raised by another nonparty were resolved by the consensus adoption of the “Understandings” in Annex III of Resolution 6 of Kampala Review Conference.
Article 8bis thus passes the test for recognition as international law as set forth in Article 38(1)(b) of the Statute of the International Court of Justice. Moreover, if there were a UN Security Council (UNSC) referral of Aggression in Ukraine to the ICC under Rome Statute Articles 13(b) and 15ter, the ICC would apply 8bis to the acts of a nonparty, just as it authorized prosecution of citizens of Sudan and Libya for other crimes defined in the Rome Statute, even though those States never joined the ICC.
Application of Article 2(4) of the UN Charter
Article 2(4) of the United Nations Charter prohibits all states from threatening or using force “against the territorial integrity or political independence of any State.”
There is no question that Ukraine is an independent State and that its borders are universally recognized. While its independence was a fiction when it was part of the USSR, it became fully independent with the breakup of the Soviet Union in 1991, and its independence, sovereignty, and borders were guaranteed in the Budapest Memorandum of 1995 signed by Russia and other States.
While Article 39 of the UN Charter mandates the Security Council to determine the existence of ‘an act of aggression,’ and this determination was blocked by a Russian veto in the UNSC on 26 February 2022, the UNGA made the necessary determination under the “Uniting for Peace” precedent by a vote of 141-5 on 2 March 2022. However, as provided by Rome Statute Article 15ter (4), “a determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings” and it is necessary for evidence to be presented to prove the predicate act(s).
Acts of Aggression and the Crime of Aggression
Article 8bis sets forth a two-step process. First a determination is required that certain defined acts have been committed. Then, and only then, it must be determined whether the acts were of such “character, gravity, and scale as to constitute a manifest violation of the UN Charter” and thus the Crime of Aggression. Given the “Understandings” adopted at the ICC Review Conference in Kampala in June 2010, and combination of the three factors is required. A military mission launched to protect a threatened group from atrocities would constitute an act of aggression, but not necessarily the crime, if the mission’s character was solely humanitarian and international humanitarian law (IHL) was strictly complied with, and the scale was narrow, and the gravity measured by loss of life or destruction of property was limited.
The Prosecution here has asserted that forces under the command and control of the Accused have committed five of seven acts described in Article 8bis (which adopted the listing set forth in UNGA Resolution 3314 of December 1974), specifically those at subparagraphs a, b, c, d, and g. Briefly described, these include the following:
- Invasion, attack, or occupation by one State on the territory of another State by armed forces.
- Bombardment by one State of the territory of another State.
- Blockade by one State of the ports or coasts of another State.
- Attack by the armed forces of one State on the armed forces of another State. 5.
- Use of mercenaries or irregulars by one State against another State.
As my colleagues will describe, the evidence of the first four acts is overwhelming. As to the fifth, while there is major press reporting about the deployment of the Wagner Group, and of its mercenary character, we did not hear from any of the 16 witnesses or see in the proffered documents any specific evidence describing the times and places of Wagner’s substantial involvement. Therefore, a majority of the Court declined to confirm this allegation in the Indictment but remains open to considering evidence that would support an appropriate amendment.
As for the “character, gravity, and scale” of the acts, the latter two terms are well-understood. As my colleagues will also describe, the evidence is overwhelming on ‘gravity; given the numbers of dead and injured combatants and civilians, and the destruction of property that an expert testified had already reached US $127 Billion by six months ago. As to ‘scale,’ the evidence is also abundant, given that the invasion occurred over a two-thousand-kilometer front, and ground attacks have been continuous along large parts of that front for a full year, as well as bombardments from the air and sea of targets throughout the second largest country in Europe.
The term ‘character’ is less well-understood, and this factor might be found to be insufficiently proved if a military operation was of a humanitarian nature. However, we conclude as a matter of law that an operation would not be of a humanitarian character unless it were consistently conducted in a manner that caused significant harm to civilian life and infrastructure.
The Defenses of the Accused
While it will be for the Accused to raise defenses at trial, the Prosecution is required to seek and present evidence that is exculpatory as well as inculpatory, and the consideration of such evidence bears on our determination of whether the evidence as whole is sufficiently substantial to merit conformation of an indictment.
The Prosecution has presented the speeches of the Accused that were delivered on 21 and 23 February 2022, asserting that the ‘special military operation’ would be undertaken for humanitarian reasons to protect threatened Russian ethnic or Russian-speaking groups. This is not a defense to an act of aggression, according to the decision on provisional measures by International Court of Justice in Ukraine v. Russia on 16 March 2022, where it held that “it is doubtful that the Genocide Convention authorizes a contracting party’s unilateral use force in the territory of another state for the purpose of preventing or punishing a genocide.” This assertion is of value to the Accused, only in showing that the act of aggression was not of character to constitute the crime of aggression. However, the evidence of violence or discrimination against such groups is lacking, and the wide scale of violations of IHL, particularly the massive Russian attacks on civilian energy infrastructure as cold weather began in October 2022, make it impossible to classify the Russian ‘military operation’ as an exercise of humanitarian intervention.
The Accused has also been heard to assert the Russian use of force was an exercise of self-defense under Article 51 of the UN Charter and has so notified the United Nations. If valid, this would be a complete defense. But there is no evidence of an actual or threatened armed attack by Ukraine on Russia. The Accused may be asserting that such attack was imminent as Ukraine was fast becoming a NATO ally. To extent that this could be viewed as sufficient, there as no evidence of this either. As General Wesley Clark testified yesterday, it was unlikely (before the Russian invasion last February) that Ukraine would have been admitted to NATO and no offensive weapons had been placed there by NATO countries. What Putin feared was a successful democracy on his borders. Hardly an armed attack.
The Individual Criminal Responsibility of the Accused
The Prosecution has presented abundant evidence that the Accused is a leader that qualifies for prosecution under Article 8bis as he is “in a position effectively to exercise control over or to direct the political or military action of a State.” He benefits from no personal immunity as a Head of State, and he would not at the ICC under the Rome Statute Article 27, or at a UN-Ukraine treaty-based international court given the decision of the International Court of Justice in the Arrest Warrant Case (2002), the Special Court of Sierra Leone in Prosecutor v Taylor (2004) and of the International Criminal Court Judgment
in the Jordan Referral re Al-Bashir Appeal (2019).
Finally, the public statements and announcements of the Accused, followed immediately by the threatened actions, are highly relevant to his liability for the actus reus of the Crime of Aggression, specifically planning, preparation, initiation, and execution. They can as well satisfy the mens rea requirement, in showing knowledge of the factual circumstances, inconsistency with the UN Charter, and the character, gravity, and scale of his ‘special military operation.’
I yield now to my colleagues for their analysis and conclusions.
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