Domestic Criminal Courts as Gap-Fillers?
Avoiding Impunity for the Commission of the Crime of Aggression against Ukraine
Shortly after the Russian invasion and long before the Bucha massacre became public, scholars started a brainstorming on how to put those on trial who committed the crime that contains “within itself the accumulated evil of the whole”. Prosecuting Russian perpetrators of the crime of aggression at the International Criminal Court (ICC) is currently only possible if Russia does not veto a Security Council referral (see here). It is therefore discussed whether States should amend the aggression jurisdiction of the ICC to cover nationals of Non-States Parties like Russia. Another debated possibility is the establishment of an ad hoc Tribunal (see here and here). If these attempts to ensure aggression trials before an international tribunal fail, domestic courts may once again be called upon to serve as gap-fillers. They can avoid impunity for the commission of the crime of aggression.
Domestic aggression trials can take place before Russian courts, Ukrainian courts, Belarusian courts and those of third States. It is a basic principle of criminal law that crimes can be prosecuted by the States on whose territory they were committed. The Russian invasion of the Ukraine was planned and prepared on Russian territory. The Belarusian acts of assistance were conducted on the territory of Belarus. The act of aggression was ultimately executed on the Ukrainian one. This leads to concurrent territorial jurisdiction of these States. Aggression is punishable under Article 353 of the Russian Criminal Code, Article 437 of the Ukrainian Criminal Code and Article 122 of the Belarusian Criminal Code. While Putin is still in office, he may be exempted from trial. His presidential immunity under Article 91 of the Russian constitution protects him from trial in Russian courts. His personal immunity as head of State under customary international law protects him from trial in Ukrainian and other foreign courts. Putin prolonged his protection in 2020 by amending the Russian constitution in a way that allows him to remain president, if reelected, until 2036. International criminal law, however, is patient. It does not know of statutes of limitation. Aggression trials can thus wait until he leaves office and take advantage of the less protective status of former heads of States. Although the International Law Commission took a cautious approach by not including the crime of aggression in the list of crimes in respect of which functional immunity of former and current State officials does not apply under international law, this list does not necessarily reflect the status of international law particularly when it comes to criminal trials in territorial States. The Nuremberg Tribunal, which provided the most famous judicial practice on the crime of aggression, did not rely on its character as an international tribunal to claim that functional immunities had no relevance. Instead, it used general language and the very essence of international criminal law to explain why officials cannot shelter behind State sovereignty. The Nuremberg claim was affirmed for the domestic level in 2016 when Ukrainian courts put two former Russian State officials on trial for aggression due to their participation in hostilities in Eastern Ukraine. The recently initiated criminal investigations in Ukraine include the crime of aggression and might also suggest the irrelevance of functional immunities of Russian officials. Allegations that there is a prohibitive rule apart from functional immunity, disguised in the Latin mantra of “par in parem non habet imperium”, which prevents domestic courts from any indirect assessment of State conduct, is not founded in State practice. There have been trials in the aftermath of World War II against German and Japanese officials at Chinese, Soviet, Polish and American courts. Relevant dismissive practice also stems from the criminal trial conducted in Ukraine in absentia against former Ukrainian President Yanukovych for participating in a Russian act of aggression in the context of the annexation of the Crimea. His conviction would have not been possible without assessing the conduct of Russia.
Legally most controversial seem to be domestic aggression trials in third States. Interestingly enough, Poland, Lithuania and Latvia have recently initiated criminal investigations concerning crimes committed in Ukraine, which also includes the crime of aggression. Aggression is punishable under Article 117(1) of the Polish Criminal Code, under Article 110 of the Lithuanian Criminal Code and under Section 72 of the Latvian Criminal Code. All three countries provide for universal jurisdiction. The Polish Ministry of Justice, however, appears to avoid the challenge of whether the Polish provision on universal jurisdiction would allow for aggression proceedings. In its communiqué, it did not specify the jurisdictional basis but emphasized that the violations of the legal rights of the “country directly neighboring Poland harm European and international security”, these acts are “directed against the interests of the international community, including the Republic of Poland”. This seems to be a vague reference to an apparently broadly understood protective principle under Article 110 of the Polish Criminal Code whereby Polish criminal law applies to a foreigner who has committed a crime against the interests of the Republic of Poland.
Estonia, France, Germany, Norway, Slovakia, Spain, Sweden and Switzerland have also initiated criminal investigations with respect to crimes committed in the course of the Russian invasion. However, most of these “third States” were unable to extend their investigations to the crime of aggression. This is largely due to the lack of a norm criminalizing aggression under their domestic law. Germany and Estonia, in contrast, have criminalized aggression but limited jurisdiction. German law is restricted to cases of aggression “if the offender was German or the offence was directed against the Federal Republic of Germany”. The German decision against universal jurisdiction was motivated by political reasons “irrespective of the discussion on the current legitimacy of universal jurisdiction under international law”. Whether the Estonian provision on universal jurisdiction includes the crime of aggression is subject to interpretation.
Despite discussions about its legitimacy, however, universal jurisdiction has been extended to the crime of aggression by around half of the sixteen States that have implemented the Aggression Amendments to the ICC Statute into domestic law. These are Austria, Cyprus, Georgia, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. In addition, there are around fourteen States which seem to have established universal jurisdiction over the substantively related crime of “aggressive war” or “incitement to aggressive war”. These are Armenia, Azerbaijan, Belarus, East-Timor, Hungary, Kazakhstan, Latvia, Lithuania, Moldova, Poland, Portugal, Tajikistan, Uzbekistan and Vietnam. Hence, all these countries could theoretically exercise jurisdiction. This does not mean that they will play the global enforcers of the criminalization of aggression and drag Putin and other high-ranking Russian officials to trial. The initiation of criminal investigations often requires the presence of the perpetrator in the forum State, as it is the case in the Netherlands.
If Russian officials ever dare to travel to these countries, however, their prosecution for the crime of aggression does not seem to be a dangerously idealistic fantasy from a political perspective. According to Langer, universal jurisdiction tends to be asserted over low-cost defendants, which are those whose prosecutions do not impose substantial diplomatic and other costs to the prosecuting State, especially those “about whom the international community has reached broad agreement”. Although Putin is still the leader of one of the most powerful States in the world, he has fallen in disgrace. 141 States voted in favor of the UN General Assembly resolution which “deplores in the strongest terms the aggression by the Russian Federation against Ukraine”. The international community also decided to cease or suspend the Russian membership in major human rights bodies, namely in the Council of Europe and the Human Rights Council. The European Union has enacted an unprecedented series of sanctions. Big companies like Apple, Nike, Microsoft and Volkswagen withdrew from the Russian market. This political and economic isolation of Russia reduces its potential to impose diplomatic and economic costs on prosecuting States. We are thus witnessing a metamorphosis of the Russian leading figures to low-cost defendants. Although only persons from the leading circle can commit the crime of aggression, these high-ranking officials are not necessarily high-cost defendants. The political costs of their prosecution decrease with the Russian isolation. The isolation cuts the economic and political ties Russia could otherwise use to deter States from prosecuting its officials.
Putting Russian aggressors on trial can even lead to political benefits for the prosecuting States. According to Langer, States engage in prosecutions only if the expected benefits were higher than the expected costs. The benefits depend upon the “domestic level of interest favoring the prosecution and trial of certain defendants”, which varies in response to the seriousness of the crime, the strength of evidence, the type of social groups affected by them and whether the crimes took place in a State with any cultural links to the potentially prosecuting State. People all over the world saw images of a bombed children’s hospital , of civilians killed while fleeing, of the massacre in Bucha. While these atrocities can be prosecuted as separate war crimes or crimes against humanity, they result from the Russian act of aggression and contribute to its gravity. The strength of evidence in times of social media and satellite images is comparably good. Domestic courts are not isolated in their establishment of the manifest unlawfulness of the Russian act of aggression. International institutions like the International Court of Justice have paved the way of accountability by rejecting the untenable Russian justification for the use of force. If European courts take up aggression cases, they can also benefit from the strong cultural ties with Ukraine. Even before Ukrainians sought refuge, almost everyone in Europe knew someone with Ukrainian background. There is a great sympathy among the general public with the people affected by the war. If Langer’s considerations hold true, all these circumstances contribute to a higher level of domestic interest favoring prosecution. Prosecuting States can thus expect benefits when presenting themselves as being committed to international peace.
Even if there tends to be some skepticism toward the crime of aggression and its domestic prosecution (see e.g. here), what Putin did is no debatable borderline case. Conducting aggression trials after this war at an international tribunal would better reflect the condemnation of the international community. It depends, however, on whether States use this momentum for international justice. With respect to the dreadful Syrian conflict, this has still not happened. Domestic courts had to rescue the conscience of the international community. A German court in Koblenz, for example, convicted in 2022 Syrian officials for crimes committed in Syria. Even if the international community fails to ensure international trials in the situation of Ukraine, domestic courts can thus serve as gap-fillers to avoid impunity for the crime of aggression.