Irene Massimino

Calls for International Accountability for the Crime of Aggression since Russia’s Invasion of Ukraine

Shortly after Russia invaded Ukraine in February 2022, legal scholars, policy makers, and world leaders began discussing how to hold Russian leaders—and Putin in particular—accountable for the crime of aggression. Considered a crime against peace, the crime of aggression is particularly appalling as it can constitute a precondition for the existence of the rest of international crimes. In the case of Ukraine, without the initial crime of aggression, there would not be further war crimes, crimes against humanity, or even the possibility of genocide.

The reasons for high attention over this crime are many and include politics, economics and the law. From a legal perspective, Russia’s invasion of Ukraine seems a clear case of aggression according to the conditions and requirements of article 8bis of the Rome Statute of the International Criminal Court (ICC) and the United Nations Charter article 2(4) related to the prohibition of the use of force. In fact, the argument about Russia’s war over Ukraine being a crime of aggression has gotten little, if not zero, dissent, in light of those provisions. Many prominent legal scholars and experts have argued in this direction since the beginning of Russia’s invasion. International and regional organizations and institutions, as well as several countries, have also recognized the nature of Russia’s actions as an aggressive war.

However, the ICC does not have jurisdiction over Russia’s aggression against Ukraine. As a result of the Kampala Amendments that activated ICC’s jurisdiction over the crime of aggression in 2017 and Articles 15bis and 15ter, the rules for the jurisdiction over the crime of aggression differ from other crimes. While for other crimes the general rule is that the Court has jurisdiction over the alleged crime if committed in the territory of a State Party or by a national of a State Party, that is not the case for aggression. The Court does not have jurisdiction over the nationals and territory of a State Party until the latter ratifies or accepts the Kampala Amendments. Moreover, a State Party can accept the amendments and still opt out pursuant to Article 15bis.

In this case, both Ukraine and Russia are not parties to the Rome Statute. Although Ukraine has twice filed declarations accepting the jurisdiction of the court, these are not sufficient for the aggression amendment to operate because Russia is a non-party. In 2016, the Russian Federation withdrew its signature to the ICC statute, and, even though it had never ratified the document, this symbolic step put the country further away from the principles that govern the international legal order, in general, and international criminal law, in particular.

The Rome Statute does permit the United Nations Security Council (UNSC) to refer the crime of aggression to the ICC even without the need for any State to accept the Kampala Amendments. But that provision will not be utilized in this situation because Russia holds the power to veto any referral as a permanent member of the Security Council. As long as President Putin is in power, the UNSC referral will not be an option.

Nevertheless, there are other options to prosecute the crime of aggression besides the ICC. Ukraine has legislation that permits it to domestically prosecute the crime of aggression. Similarly, after the beginning of the war, Poland announced it had initiated a national investigation over the crime of aggression in Ukraine as per article 117 of its criminal code and the principle of universal jurisdiction. However, legal experts have underlined that the independence of an international court will impact on the perception of its legitimacy and the fairness of the trials. In addition, experts have also highlighted the need for international solidarity to uphold the rule of law and the principles of the UN Charter because Russia’s criminal actions, starting with the annexation of Crimea in 2014 and continuing with the aggressive war of 2022, mark a flagrant violation of the international principle of the prohibition of the use of force and of territorial integrity. Thus, an international tribunal—more than a national one—would better fulfill those requirements while simultaneously complying with the ICC definition of the crime of aggression safeguarding the principle nullum crimen sine lege and other due process concerns that may arise.

Proposals for an Aggression Tribunal

Given the international community’s willingness to play a role in providing accountability for the crime of aggression, legal scholars, leaders, politicians and policy makers have been discussing several possibilities for creating an international or internationalized tribunal to prosecute the crime. They have suggested different formats for international tribunals such as a High War Crimes Court of Ukraine, a Hybrid Tribunal by agreement of UN and Ukraine, an International Criminal Tribunal for the Crime of Aggression Against Ukraine and a Special Tribunal for Ukraine on the Crime of Aggression.

Although the proposals are different, they all agree in the need to create a special international mechanism for prosecuting Vladimir Putin and other Russian leaders for the crime of aggression. Thus, the discussion is now centered towards understanding which of those mechanisms is best to use.

Indeed, some of the proposals seem to be moving forward. In November 2022, the European Union reported that it had already started to work towards establishing a special court with the support of the United Nations. In January, Germany’s Foreign Minister backed this proposal by publicly stating that Russian leaders must be investigated and put to trial. And in February, the European Commission announced the creation of a center in the Hague to focus on collecting evidence to prosecute the crime of aggression against Ukraine. Ukraine has openly supported the creation of an international judicial mechanism. However, no further relevant advancements have been made in the field.

Considering In Absentia Trials for the Crime of Aggression for High-Level Leaders

In short, all indications are that a special tribunal to prosecute the crime of aggression may be created by States, most likely earlier than later. Little discussed, though, is the question of whether these accountability mechanisms will soon—or ever—be able to obtain custody over Putin and other high-level offenders, all of whom are likely in Russia and will remain so. And, if these accountability mechanisms cannot obtain jurisdiction over these high-level offenders, then the only option to provide accountability in the short term—or even ever—may be to hold trials in absentia.

Holding a trial in the absence of the accused has always been controversial. Critics complain that in absentia trials deny the defendant the right to the constitutional and human rights guarantee of due process. However, despite these real challenges, jurists have also elaborated on certain standards to comply with those guarantees while still applying this judicial procedure. Furthermore, there are some antecedents for the use of these processes in national and international jurisdictions for ordinary and international crimes, under certain circumstances.

There are several reasons to consider in favor of holding a trial in the absence of the accused. First, it would be appropriate in this situation because aggression is one of the most heinous crimes—along with genocide, crimes against humanity and war crimes—whose harmful social consequences should not let it go unpunished. States, national and international courts, legal instruments, law specialists, and scholars have pointed out the universal nature of international crimes and have defined them as “crimes against mankind” “shocking the conscience of all humanity,” and as “offenses against the peace and security” of humanity, thus affecting the international community as a whole regardless of where they were committed. International crimes have, therefore, a global dimension which responds to the quest for justice and accountability in the face of crimes whose impact exceeds the individual sphere. In other words, justice and accountability are key demands of victims and entire societies during or in the aftermath of international crimes.

Second, the serious consequences of the crime of aggression stress the importance of fulfilling the rights of all victims—direct and indirect—usually very large in number. A trial in absentia, as opposed to no trial at all if custody of the alleged perpetrator cannot be assured, would assist victims and the realization of their rights. Scholars analyzing the possibility of the use of trials in absentia tend to leave aside a victims’ perspective, thus omitting to balance their rights with the rights of the accused. The right to truth, the right to remedy and reparations, and the right to access to justice are the most relevant and widely recognized victims’ rights for atrocity crimes. Some scholars have suggested that truth commissions could fulfill the role of a trial in absentia when it comes to victims’ rights.

Yet, truth commissions do not determine the legal criminal responsibility of an individual. In fact, they are a special body, commonly established by a legislative power with the goal of investigating patterns of violence in a specific period of time. They usually exist in the context of a transitional justice process, in which jurisdictional trials are also carried out. For example, both the Inter-American Commission on Human Rights and the Court have emphasized the importance of conducting criminal proceeding along with truth commissions in order to exhaust all measures to fulfill the right of victims, especially the right to truth. 

In absentia trials are traditional judicial proceedings with the only difference being the absence of the defendant. Conducting a criminal trial with a proper oral argument and all process formalities greatly helps in the reconstruction of truth and in establishing the extent of the crime. Moreover, a criminal trial gives victims a voice while it also recognizes their victimhood and works as a reparatory mechanism. Although the presence of the accused would be ideal, when this circumstance becomes impossible, the only option that remains is to hold the trial in its absence. Investigating and prosecuting international crimes cannot be exclusively determined by the presence of the accused.

Third, a trial in absentia will be helpful for the preservation of evidence, especially testimonial evidence. International tribunals have already highlighted the importance of preserving evidence and how difficult it could become when a process stops due to the impossibility of finding the defendant. In fact, the International Tribunal for the Former Yugoslavia (ICTY) had to modify its Rules and Procedures to incorporate Rule 61—a hybrid and, nonetheless, controversial part of the pre-trial process, in order to make up for the absence of defendants. Although some believe this could be an option to trials in absentia, it poses similar due process problems and does not determine the responsibility of the accused.

Finally, regarding due process, legal experts have identified safeguards for the applicability of trials in absentia. In 2016, the International Bar Association (IBA) issued a Report on the ‘Experts’ Roundtable on trials in absentia in international criminal justice, with an analysis of the state of the law regarding such processes. The report includes a synthesis of common requirements to conduct trials in the absence of the accused and, at the same time, fulfill the rights to due process and judicial guarantees. In brief, the conditions incorporated in different jurisdictions include fulfilling the rights of the accused to have legal representation, to retrial, and to be notified about the proceedings. All of these conditions can be incorporated in a special tribunal for the crime of aggression against Ukraine.

There is no doubt that trials in absentia are controversial and that the presence of the accused in court is the most ideal scenario. However, there is also no doubt that individuals accused of such crimes are not always easy to apprehend nor are they always willing to appear in court, especially when those individuals hold positions of leadership and power. Trials in absentia could bring redress to victims while also fulfilling their rights and give the message to the international community and its leaders that crimes will not remain uninvestigated and unpunished. The duty to uphold the rule of law and the international principles globally accepted by States in 1945 cannot be limited by the impossibility of securing the presence of individuals who are accused of having committed the most serious crimes.  

About the Author

Irene Victoria Massimino is a lawyer specialized in international criminal law and human rights. She is a graduate of the Faculty of Legal and Social Sciences of the National University of La Plata, in Argentina; has a Master of Laws from Robert H. McKinney School of Law at Indiana University, in the United States, where she is currently pursuing an SJD and teaching as an adjunct faculty, and holds a Master of Human Rights from the School of Advanced Studies of the University of London, in the United Kingdom. Amongst her work, Ms. Massimino has served as Rapporteur of the High Criminal Court of Buenos Aires Province, Argentina, in international investigative delegations and trial observation missions. She is the Co-founder and Director of Legal Affairs of the Lemkin Institute for Genocide Prevention. Irene Massimino has also taught at national and international universities and institutions.