By Jaime Lopez, Brady Worthington
Against the backdrop of Russia’s invasion of Ukraine, the prosecutor for the International Criminal Court (ICC), Karim Khan, announced on Feb. 28 that his office would open an investigation into potential war crimes stemming from the conflict. In a press release, the prosecutor stated that the investigation would examine events dating back to 2014 and, “[g]iven the expansion of the conflict in recent days,” would include “any new alleged crimes” committed within the territory of Ukraine that may fall under the ICC’s jurisdiction.
Since Russia launched a full-scale invasion of Ukraine on Feb. 24, the Ukrainian government and numerous international human rights groups have expressed outrage over Russian shelling and missile strikes in densely populated areas, leading to several instances of civilian casualties. In recent days, reports have emerged that Russia is deploying area-fire munitions, such as cluster bombs—which open in the air and release submunitions over broad areas—in densely populated cities, without regard for the risks to the civilian populace. Kharkiv, Ukraine’s second most populated city, has been one target of intense Russian shelling. Ukraine’s president Volodymyr Zelensky commented in a speech to the European Parliament, “This is not a random mistaken salvo, but a conscious extermination of people. The Russians knew what they were firing at.”
In order to understand the potential scope and implications of the ICC’s forthcoming investigation, this post reviews the extent—and limits—of the court’s jurisdiction over the conflict, as well as the concerns raised by the Ukrainian government and international organizations, and which areas of international law may apply.
The Court’s Jurisdiction in Ukraine
Neither Ukraine nor Russia is a state party to the Rome Statute—the 2002 treaty that establishes and governs the authority of the ICC. As such, neither state has the ability to refer possible crimes to the court. However, Ukraine has twice declared that it accepts the jurisdiction of the court for crimes committed within its territory. In announcing the investigation into the situation in Ukraine, the ICC prosecutor explicitly references both declarations to lend authority to the court’s jurisdiction in this case.
The latest of Ukraine’s two declarations was registered with the court in 2015 after Ukraine’s Parliament adopted a resolution distinctly accepting the ICC’s jurisdiction indefinitely from Feb. 20, 2014, onward. Simultaneously, Ukraine accused “senior officials of the Russian Federation” and associated terrorist groups of crimes against humanity and war crimes in Crimea and the eastern regions of Donetsk and Luhansk, “which led to extremely grave consequences and mass murder of Ukrainian nationals.”
Since 2014, the ICC has been conducting a preliminary examination—a common pretext to a full, official investigation—into the situation in Ukraine. In Khan’s announcement of the forthcoming investigation, he stated:
I have reviewed the Office’s conclusions arising from the preliminary examination of the Situation in Ukraine, and have confirmed that there is a reasonable basis to proceed with opening an investigation. In particular, I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination by the Office.
The prosecutor’s ability to exercise jurisdiction over Article 5 offenses—like war crimes and crimes against humanity—stems from Articles 12 and 13 of the Rome Statute. Under Article 13, there are three situations under which the ICC can exercise its jurisdiction. The first is in situations where the alleged crimes are referred by state parties. As noted, although Ukraine is a signatory to the Rome Statute, neither Ukraine nor Russia is a party; this means that the statute is not legally binding on them, although under customary international law, Ukraine has certain limited obligations not to violate the object and purpose of the treaty. Russia withdrew its signature in 2016, essentially severing its ties to the statute. Since the prosecutor’s announcement of a preliminary investigation, as of March 2, however, 39 state parties have referred matters to the court, which would seem sufficient on its face to grant jurisdiction.
The second manner of exercising jurisdiction is by referral of the alleged crimes to the court by the U.N. Security Council under its Chapter VII authority. This avenue is almost certainly a dead end, as Russia (and likely China) would be inclined to use their veto powers to halt any such referral. However, Article 16 of the statute provides for the “Deferral of Investigation or Prosecution” by the ICC for a period of 12 months after a request by the Security Council to that effect; such a resolution is just as unlikely due to the veto powers of the U.S., U.K. and France. In other words, from both the Russian and Western perspectives, the Security Council seems too deadlocked to play an effective role in this ICC process.
The third and final basis for jurisdiction is the prosecutor’s own prerogative. Under Article 13(c), the prosecutor may initiate an investigation proprio motu (“by one’s own motion”) under the procedures outlined under Article 15. The process to initiate the investigation begins with the aforementioned preliminary examination by the prosecutor’s office. After examining the information received—and any additional information sought from states, the U.N., or even written or oral testimony—the prosecutor must determine whether there is a “reasonable basis” to proceed with an investigation. At this point, the prosecutor can submit a request to the Pre-Trial Chamber (PTC) assigned to the case for authorization of a full investigation. The PTC must also determine whether there is a reasonable basis to proceed, as well as whether the case itself appears to fall within the court’s jurisdiction. If the PTC concludes that there is not reasonable basis, the prosecutor may continue submitting further information for the chamber’s consideration.
However, per Article 12 of the statute, jurisdiction by the first (state party referral) and second (proprio motu investigation) options can exist only where the states in question either are parties to the statute or have accepted the court’s jurisdiction. Since neither country is a party to the statute, either the country whose nationals are accused of the crimes or the country on whose territory the crimes occurred would have to accept the court’s jurisdiction. In this case, Russia—as the state whose nationals (the “senior officials of the Russian Federation”) are accused of crimes—is unlikely to do so. The conduct in question occurred within Ukraine’s territory, so the jurisdictional prerequisite is satisfied by Ukraine’s declarations accepting ICC jurisdiction over war crimes and crimes against humanity.
In light of Ukraine’s acceptance of jurisdiction, the necessary conditions for the ICC’s exercise of jurisdiction are indeed present. As a result, Khan announced on Feb. 28 the existence of a proprio motu preliminary examination and intention to refer the case to the PTC. In his statement, he announced his conclusion that a rational basis indeed exists. On March 2, the president of the ICC officially assigned a PTC to determine whether a full investigation should be opened. In combination with the new referrals from 39 state parties, these conditions ensure that there are multiple avenues for the court to exercise its jurisdiction over war crimes and crimes against humanity.
The PTC has 120 days from the date of Khan’s request to decide whether to authorize the full investigation, barring any exceptional circumstances. Khan has asserted that his office’s investigation would encompass an expanded probe of both the preliminary inquiry and any crimes stemming from Russia’s latest invasion.
There is, however, one glaring crime missing from the prosecutor’s preliminary examination: The court does not have the ability to investigate the crime of aggression. Unlike the more “traditional” crimes under the court’s jurisdiction, the crime of aggression was introduced to the court’s authority in 2018 by amendments to the Rome Statute, primarily to Article 15. Under Paragraph 4, the court is explicitly barred from exercising jurisdiction over crimes of aggression by the nationals of, or on the territory of, a state that is not party to the statute. This invalidates the ability to exercise jurisdiction over aggression by Russia in the territory of Ukraine. Even a proprio motu investigation of aggression requires a determination by the U.N. Security Council that an act of aggression has occurred, which is unlikely for the same reasons as discussed above. Khan has acknowledged this inability in a statement released one day after Russia’s invasion: “Given that neither Ukraine nor the Russian Federation are State Parties to the Rome Statute, the Court cannot exercise jurisdiction over [the crime of aggression] in this situation.”
The Admissibility of the Case
If the ICC were to approve an investigation in the coming days, what would be the next steps for the case? At this point in the pre-trial process, questions of admissibility would need to be addressed. Under Articles 17 and 18, a case is inadmissible if a state with jurisdiction over the crime is either currently investigating or prosecuting it, or has completed the investigation and decided not to prosecute—unless the investigating state is unwilling or unable to genuinely carry out said investigation or prosecute.
Article 18 lays out the process for addressing these admissibility questions. Once a state party has referred the crimes to the court or the prosecutor has initiated a proprio motu investigation, the prosecutor must formally notify the states that would normally exercise jurisdiction over the crimes, in this case, Russia and Ukraine. Following notification, the parties have one month to inform the court of either an ongoing or completed investigation of the Article 5 crimes, and can request that the prosecutor defer to the state’s investigation, stopping the ICC proceedings in their tracks.
At this point, the unwilling and unable test comes into play. Inability to investigate or prosecute is likely not relevant in this case, as the statute generally attributes inability to the “total or substantial collapse or unavailability of its national judicial system,” an issue Russia does not seem to have. However, an unwillingness on their part to address the crimes alleged could pave the road to admissibility.
The test for the court to determine unwillingness lies in Article 17(2). Of the three conditions listed, only one need exist for an unwillingness determination: (a) The state is shielding the persons concerned from responsibility for the Article 5 crimes; (b) there is an “unjustified delay” in the proceedings inconsistent with an intent to the bring the accused to justice; or (c) there is a failure to conduct the proceedings independently or impartially, also inconsistent with an intent to bring the accused to justice.
These standards are quite broad and leave plenty of room for the PTC to make an unwillingness determination should Russia attempt to block the prosecutor’s investigation under Article 18. If the determination is made, then the case is admissible and the prosecutor may proceed with his investigation into Russia’s activities.
It is worth keeping in mind, however, that the prosecutor and the state parties may avail themselves of a PTC challenge to both jurisdiction and admissibility under Article 19, as well as of an appeals mechanism to challenge PTC rulings under Article 82. In that case, even an unwillingness determination by the PTC does not guarantee an investigation, much less a trial.
Accusations and Evidence of Russian War Crimes Grow
Since Russia began its invasion of Ukraine on Feb. 24, the Ukrainian government, numerous international human rights groups, and international actors have either directly accused or raised concern that Russia’s military action and bombardment of populated urban areas could amount to war crimes.
On Feb. 28, President Zelensky accused Russia of war crimes after the Russian military launched a day of heavy airstrikes and artillery on Ukraine’s second-largest city, Kharkiv. Zelensky’s statement came among broader reports of intense shelling across numerous Ukrainian cities, striking several residential buildings.
Human Rights Watch reported that it had documented the use of cluster munition rockets in at least three residential areas in Kharkiv on Feb. 28. Cluster munition rockets are “inherently indiscriminate,” and such use could “constitute a war crime,” the organization said.
Amnesty International said that it had collected evidence of Russian strikes resulting in “deaths of civilians [from] indiscriminate attacks on civilian areas and infrastructure,” including “strikes on protected objects such as hospitals and schools.” Only a day after Russia’s invasion, on Feb. 25, the organization announced in a press release that the “forensic analysis of three separate attacks provides ‘irrefutable evidence’ of breaches of laws of war.”
On Feb. 28, Lithuania officially referred the situation to the ICC, followed on March 2 by 38 additional countries to the Rome Statute. The same day, U.K. Prime Minister Boris Johnson, in a speech to Parliament, said that there appeared strong evidence to support accusations of war crimes. He stated:
What we have seen already from Vladimir Putin’s regime in the use of the munitions that they have already been dropping on innocent civilians, in my view, already fully qualifies as a war crime.
On March 6, U.S. Secretary of State Antony Blinken said that the U.S. government had seen “very credible reports of deliberate attacks on civilians, which would constitute a war crime.” He noted that the U.S. government was working to document evidence in order to ensure that the proper organizations would be able to investigate “whether war crimes have been or are being committed.”
On March 9, multiple news outlets and Ukrainian government officials reported that Russian airstrikes had struck a hospital complex in Mariupol. President Zelensky described the attack as a “direct strike” and an “atrocity.” The incident drew international condemnation and came as the Ukrainian government said that Russia was impeding the evacuation of civilians along designated corridors from besieged cities across the country. Instances were reported of Russian shelling hitting points along the corridors, causing a halt to several evacuations.
Russia’s past actions in Syria, where “airstrikes often appeared to be recklessly indiscriminate,” according to a 2016 Human Rights Watch report, have raised concerns that Russia may increasingly resort to similar tactics as it continues to face heavy resistance and high casualties.
Although the court’s investigation is likely to span some time as the conflict continues, there are several clauses within the Rome Statute that the ICC could consider in its evaluation of the situation in Ukraine. Specifically, these are likely to include the categories of crimes against humanity and war crimes—encompassed in Articles 7 and 8, respectively, of the Rome Statute.
In particular, Article 8 defines what constitutes war crimes and states that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” This would indicate that the court would likely seek to pursue those in a leadership position responsible for planning or sanctioning specific actions determined to constitute a war crime. Indeed, historically, the ICC has prosecuted many former military leaders and heads of state.
Numerous provisions in Article 8(2) define specific war crimes potentially relevant to the ICC’s forthcoming investigation, specifically in light of the aforementioned concerns raised by multiple parties regarding Russia’s military action in Ukraine. These include the following:
Article 8(2)(b)(i): “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.”
Article 8(2)(b)(ii): “Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.”
Article 8(2)(b)(iv):“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread[.]”
Article 8(2)(b)(iv) is reflective of Article 85(3)(b) of the Geneva Convention Additional Protocol, which expressly addresses indiscriminate attacks and notes both loss of life or injury to civilians as well as damage to civilian objects. It states, in full, that a violation of the convention will constitute:
Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects.
These articles are a few of the central provisions that reflect the basis for concerns raised by the Ukrainian government, human rights groups and others across the international community regarding Russia’s military actions. As a result, they could become central to the ICC’s investigation. Of course, the critical element in each of the articles mentioned is intention. To bring a successful case in any situation, the court has to prove that acts in violation were committed “intentionally” or “in the knowledge” of the effect that such action would or could have.
The course of the ICC’s investigation will surely be a source of significant attention and a significant test of the court’s ability to effectively investigate crimes amid an ongoing conflict. Its jurisdiction to investigate the situation in Ukraine is laid out by the Ukrainian government’s two declarations explicitly accepting the jurisdiction of the court over crimes committed on its territory, alongside the referral received in recent days by 39 state parties to the Rome Statute.
Since Russia’s invasion on Feb. 24, serious questions have emerged over its deployment of airstrikes and shelling targeting densely populated areas, resulting in a rising number of civilian casualties. The international community has repeatedly expressed concern over these events, explicitly raising the possibility of war crimes. As the conflict unfolds and further information develops, it’s worth following the development of the court’s investigation.