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The Sadly Neglected Crime of Aggression

On the Missed Opportunity of Prosecuting the Ukraine War as an International Crime

03.03.2022

International criminal law has experienced an unexpected renaissance in the domestic sphere in recent years. There has been a lot of buzz surrounding Germany’s consistent application of universal jurisdiction in spectacular trials relating to crimes committed mainly in the Syrian context. But the enthusiasm did not extend to crime of aggression. Neither § 13 of the German Code of Crimes Against International Law (CCAIL) nor the corresponding Article 8bis of the Rome Statute of the International Criminal Court (“Rome Statute”, RS) have been applied to date. Wars of aggression seemed to be a relic of the past.

That was until the Russian invasion of Ukraine on February 24, 2022. Not only has interest in public international and international criminal law sparked overnight, but the crime of aggression has emerged from irrelevance and is suddenly on everyone’s lips. There is hardly any headline, interview, or speech that manages without a reference to the term. At the same time, almost all of these references contain errors, confuse the core crimes of international criminal law and neglect the actual possibilities of prosecuting the crime of aggression.

Hence, a look at the history and the jurisdictional difficulties surrounding aggression and, finally, a short outlook into the future is definitely worthwhile. This blog post’s aim is to answer the question: What happened to the historical project of outlawing aggressive war as such and can the international crime of aggression be part of the set of legal consequences to the Ukraine War?

The “Accumulated Evil of the Whole”

Until the beginning of the 20th century, waging war was not prohibited by international law and a legitimate political instrument. However, there was a growing trend in the international community to disapprove of war as a means of exercising power – the doctrine of the “bellum iustum” or “just war” was gradually given up.

The first step towards individual criminal responsibility was taken with the Nuremberg Trials and Article 6 a) of the Statute for the International Military Tribunal (IMT) which codified “crimes against peace” for the first time. The judgement of the IMT regarding the Major War Criminals of October 1, 1946, contains an often-quoted passage that marked the beginning of a new understanding: “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” (p. 25, IMT judgment).

Aggression – for the first time – was illustrated as the root of all evil, which provides the breeding ground for further international crimes. More than 70 years later, this realisation seems to have entered people’s minds long ago, as is proven by the recent public debate surrounding the events in Ukraine. At least it seems that what the international community seems to be most shocked by and outraged about, is the waging of an aggressive war as such in the middle of Europe.

But after a UN General Assembly Resolution in 1974 establishing a definition of aggression, the individual crime continued to be left out of the equation, even when the Rome Statute establishing the International Criminal Court (ICC) in The Hague was adopted in 1998. The review conference of Kampala in 2010 finally proposed a definition and jurisdictional framework. These Kampala agreements were hailed as a historic step and provide the basis for today’s Article 8bis RS.

To date, 43 states parties have ratified those amendments, but only nine of those have implemented the crime in their domestic law, while another seven states – Germany being one of them – had pre-existing provisions. The (full) implementation of the crime into German criminal law occured with § 13 CCAIL, which replaced the former § 80 of the Criminal Code, the so-called “Preparation of a War of Aggression”, on January 1, 2017.

Jurisdictional Hurdles

With a mere glance at these two provisions, one might think that nothing should stand in the way of prosecuting Russian leadership for the attack on Ukraine. There is little doubt that the use of armed force by Russia constitutes a manifest violation of the Charter of the United Nations and violates the sovereignty, territorial integrity, and political independence of the Ukraine (cf. § 13 paras. 1, 3 CCAIL). Out of the seven specific acts of aggression listed in Art. 8bis para. 2 RS, at least five seem to have been committed so far.

But the current jurisdictional regime relating to the crime of aggression is symptomatic of the constant deadlock in international criminal law. The historic breakthrough of Kampala is only impressive at first glance, as the considerable – almost impassable – jurisdictional hurdles which have been built into both the RS and the CCAIL significantly limit the likelihood of prosecution.

Art. 8bis RS is not subject to the same jurisdictional rules as the other three core crimes. The ICC can only prosecute an act of aggression if the state committing it has accepted its jurisdiction over the crime. Nationals of non-state parties – including Russia – are therefore completely excluded from jurisdiction, at least if the case is referred by a state party or if the prosecutor refers it “proprio motu”, cf. Art. 15bis RS. The only remaining option would be a referral by the UN Security Council under Art. 15ter RS, which – in the Ukraine situation – is impossible due to a Russian veto (see i.e. Trahan).

Things do not look much better regarding German law. While the CCAIL generally contains a very broad principle of universal jurisdiction in § 1.1, which allows prosecution without any domestic link, this principle is restricted precisely in the case of the crime of aggression. § 1.2 CCAIL requires the perpetrator to be German or that the act was directed against the Federal Republic of Germany in order to be prosecuted. The explanatory memorandum of the German government states that it is not appropriate to apply the principle of universal jurisdiction at present, because cases related to the crime of aggression typically contain a strong foreign policy element that would make an international criminal court the more suitable prosecuting body. Whether this reasoning is actually convincing seems questionable. In addition to the fact that the ICC – as pointed out – has limited means of prosecution, one has to keep in mind § 153f of the German Code of Criminal Procedure, which already provides for generous possibilities for the public prosecutor’s office to dispense with prosecuting if the suspect is not in Germany and such a stay is not to be expected.

Despite the substantive law clearly being applicable, Russia’s war of aggression against the Ukraine in itself, will therefore neither be prosecuted in The Hague or Germany. Instead, the attention is beginning to shift towards other core crimes, especially war crimes. But let’s not forget that there would be no war crimes without an underlying war. If one believes in the deterrent power of international criminal law at all, the prosecution of these “consequential” crimes sets in too late. The stifling jurisdictional hurdles of the Kampala agreements and their reluctant ratification and implementation have ruined the opportunity to prosecution the first war of aggression since the waging of such has become a crime.

Ways Forward

But this does not mean that international criminal law has no relevance in the Ukraine War whatsoever.

First, thorough documentation of any international crimes committed in the Ukraine War should be sought, hoping that those responsible will be held accountable before the ICC or a domestic court at a later point in time. There is already valid evidence for the commission of possible war crimes by Russia, for example the use of cluster and vacuum bombs or the shelling of residential areas. On February 28, 2022, the Prosecutor of the ICC has therefore decided to proceed with opening an investigation regarding the situation in Ukraine. He is able to do so despite the fact that neither Russia nor the Ukraine are member states of the Rome Statute, because the possible crimes are committed on the territory of Ukraine, which has made two special ad hoc declarations under Art. 12 para. 3 RS, giving the ICC jurisdiction from November 2013 onwards. In the same statement, the Prosecutor indicated that active investigations by his office would be significantly expedited if a state party to the Rome Statute were to refer the situation as provided in Art. 14 RS. This call was met by a referral of 39 member states on March 2, 2022, unprecedented in its numbers. On the same day, the UN General Assembly deplored Russia’s aggression against Ukraine in a resolution equally unprecedented in unity.

At the same time, the already observable shift of the debate towards other core crimes bears the risk that the project of criminalising aggression worldwide will once again stall until the next (unexpected) war of aggression takes place. This is why, in the meantime, the efforts to do so should be advanced. The ratification and implementation of the crime of aggression should be pursued by more countries. Finally, the German legislature should think about a possible amendment or repeal of § 1.2 CCAIL, to live up to its role as a guardian of universal jurisdiction for all core crimes.

Believing in historical fortunes and coincidences, persistently campaigning for solutions based on law, tirelessly remembering, reminding and clarifying – international criminal law has always drawn from all of this. And even if it is far too seldom the case, every now and then its substantive law, its institutions and its influence on the domestic sphere manage to make a difference. Even if the crime of aggression will not be part of the equation in dealing with the Ukraine War in a legal manner, the worldwide shock at Russia’s conduct shows that the historical project of criminalising aggressive war in itself is anything but dead. But so far, only part of the journey has been made.

Author
Elisabeth Baier

Elisabeth Baier is a defense attorney at the Berlin law firm Danckert Bärlein Sättele Rechtsanwälte

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