25 Feb More Than Rhetoric? International Criminal Justice, Crime Semantics and the Role of the ICC in the Ukraine Conflict
[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden Law School.]
‘In times of war, the law falls silent’ (silent enim leges inter arma). This famous maxim by Cicero is often used to illustrate the lack of power of law in the face of conquest and occupation. In the discourse over the war in Ukraine, we witness the opposite. As Marko Milanović has shown in his analysis of recognition, it is a ‘communicative war’, a battle where legal semantics are at the forefront of justifications and condemnations. They are part of warfare. There is turn to extremes. The notion of ‘genocide’ has been abused by Russia to justify the break-away of the ‘People’s Republics of Donetsk and Luhansk’ and conceal violence under the guise of protection and self-defence. This discourse frames violations in the language of law, in order to make them acceptable to home audiences. The notion of aggressive war is the corresponding counter-label. It has inter alia been invoked by Dutch Prime Minister Mark Rutte (‘act of unprecedented aggression’). It serves to discredit unfounded claims of self-defence and protection. It carries associations with WWI (‘supreme offence against international morality and the sanctity of treaties’), WWII, Nuremberg and Tokyo. Both notions refer to moral extremes. They are loaded with historical baggage, related to their precedents.
The Kampala amendments to the ICC Statute gave a contemporary framing to the crime of aggression by shifting the focus from the notion of war of aggression to the wider concept of acts of aggression. However, the semantics used show the limitations of criminal labels: Both notions polarize and easily create binary divides between ‘good’ and ‘evil’, victim and aggressor. In the history of international criminal justice, the two concepts traditionally compete for the title of the ‘most serious crime’, with aggression (‘crimes against peace’) taking a head start, before genocide filling the space, after decades of lack of practice on aggression. In the midst of conflict, the notions may easily be used to fuel, rather than constrain conflict. They make it easier for each side to negate claims of the other and put blame or stigma on the opponent. For instance, in the public eye, there is often only one aggressor, facing another entity able to exercise self-defence, or one group of genocidal agents, targeting another group of victims etc.
In 2010, States considerably limited the role of the Court in relation to the crime of aggression, when they activated ICC jurisdiction over the crime of aggression. They did not deny that the crime has an established basis under international law, but attached strict conditions to the exercise of jurisdiction. The compromise came at a high price. In situations where a non-state party is involved, the Court is prevented from exercising jurisdiction, even though the Statute itself may lend support to the qualification of the act as a crime of aggression. The Kampala definition is thus, perhaps more than other crimes under the Statute, an expressivist norm. As Frédéric Mégret and Kevin Heller have noted, it provides a legal frame to qualify violations in the conflict over Ukraine as act of aggression in the meaning of GA Res. 3314 (XXIX) and Art. 8 bis of the Rome Statute (e.g., ‘attack of another state’, military occupation, bombardment, blockade of ports) and to argue about responsibility. It constitutes a norm to counter the negation of the identity of Ukraine as sovereign state in discourse on the use of force and to encourage opposition to unlawful orders. Tom Dannenbaum even goes so far to argue it serves to sanction the killing of combatants in illegal war. The ICC definition may ultimately carry more influence on the establishment of state responsibility, rather than individual criminal responsibility. It might even make some of those states who have initially remained critical of Kampala (e.g., US), more inclined to side with the ICC definition.
The actual prospect of the exercise of criminal jurisdiction by states over the crime of aggression is rather limited. Following the comparative analysis of Astrid Reisinger Coracini, only a handful of states have adopted legislation enabling the exercise of universal jurisdiction (e.g., Samoa) or conditional universal jurisdiction (Austria, Croatia, East Timor, Moldova) over the crime. Given the lack of state practice, it was for a long time even contested whether aggression is subject to universal jurisdiction. Options of prosecution are limited by the ongoing debate over the applicability of personal and functional immunities in inter-state relations. Although there is considerable authority not allowing functional immunity in relation to atrocity crimes, even the progressive decision of the German Supreme Court in January 2020 has only expressly discarded immunity in relation to war crimes. While the crime of aggression carries undoubtedly high normative significance, it is important not to banalize other categories of crimes, which may carry less political heritage and offer better prospects of investigation and prosecution.
In the media, relatively limited attention is paid to the fact that the ICC has already qualified certain violations in Crimea and Eastern Ukraine as crimes within the jurisdiction of the Court. For instance, in the 2016 preliminary examination report, the OTP has argued that the ‘direct military engagement between Russian armed forces and Ukrainian government forces’ suggests ‘the existence of an international armed conflict in the context of armed hostilities in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict’ (para 169). The initial 2015 declaration of acceptance of jurisdiction of Ukraine was linked to a parliamentary resolution, which recognized ICC jurisdiction over ‘crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of terrorist organizations “DNR” and “LNR”, which led to extremely grave consequences and mass murder of Ukrainian officials’. However, the text of the letter containing the declaration referred more broadly to an acceptance of jurisdiction for ‘the purpose of identifying, prosecuting and judging the perpetrators an accomplices of acts committed in the territory of Ukraine since 20 February 2014’. In conformity with Rule 44 of the Rules of Procedure and Evidence and the notion of situation under the Statute, the OTP has examined alleged crimes on all sides of the conflict. It identified war crimes and crimes against humanity committed in both, Crimea and Eastern Ukraine, from 20 February 2014 onwards (paras. 154 et seq.). It noted inter alia that
[b]etween April 2014 and June 2016, up to 2,000 civilians were killed in armed hostilities, mostly (85-90%) as a result of shelling of populated areas in both government-controlled territory and areas controlled by armed groups (para. 178).
In December 2020, former Prosecutor Fatou Bensouda determined that ‘the statutory criteria for opening investigations into the situation in Ukraine are met’.
Many of these patterns, including shelling of populated areas, are recurring in the current context. The text of the 2015 declaration of acceptance suggests that the ICC has jurisdiction over crimes committed in the current conflict, although it was initially launched in response to events in Crimea and Eastern Ukraine in 2014. The territorial scope covers not only Crimea and Eastern Ukraine, but the ‘territory of Ukraine’ more broadly. The letter added that the declaration ‘is made for an indefinite duration’. In addition, there is a close situational nexus between the events in 2014 and the current violence, which is inherently linked to the control over the ‘Republics of Donetsk and Luhansk’ and the extension of the demarcation zone.
In 2020, Prosecutor Bensouda expressed a willingness to seek an express authorization of an investigation by the Pre-Trial Chamber. However, the process was stalled by budgetary constraints (‘thin and overextended resources’), the pandemic, and choices of prioritization, including the opening of other investigations. As Iryna Marchuk and Aloka Wanigasuriya have argued, Ukraine has remained reluctant to formally adhere to the Statute, based on fears that its own nationals might be investigated or prosecuted. The new Prosecutor, Karim Khan, has placed considerable emphasis on the broader universal role of the Court, Security Council referrals, and dialogue with states. Ukraine has not counted among the most urgent priorities. The practice of annual preliminary examination reports was dropped in 2021, much to the regret of civil society.
The current situation marks an opportunity to break this stalemate. The advantage of the ICC is its ability to look at all sides of the conflict through the prisms of categories, such as war crimes and crimes against humanity. It has already done groundwork. Its role is limited: its deterrent effect has been minimal, and its operation has shown many flaws. In Kenya and Ivory Coast, the OTP has struggled with cases against high state officials. However, it is crucial to collect and preserve evidence, attribute appropriate legal qualifications to acts, and accommodate conflicting narratives and perspectives on events in the battle over authority and legal semantics. It provides, at least partly, an opportunity to de-mystify or challenge binary discourses over responsibility and to mitigate the creeping erosion of international law through some of its own categories. It has been envisaged for contexts like these.