The Russia-Ukraine Conflict, and the loophole it brought to light

Legal Aid Society, Campus Law Centre, University of Delhi

The Russia-Ukraine Conflict, and the loophole it brought to light

June 27, 2022 Uncategorized 29

The Russia-Ukraine Conflict, and the loophole it broughto light

The author, Pratyush Pandey, is a fourth-year law student at Rajiv Gandhi National University of Law, Punjab.

 

Introduction

H.G. Wells, in 1914, claimed that World War I would be “the war to end all war”. However, he has been proven wrong through a plethora of instances, such as World War II, the innumerable international and non-international armed conflicts, and very recently the Russian invasion of Ukraine, which brought upon the world the guillotine of a possible World War III. Well’s claim, if taken prima facie, was not outrageous, considering the contemporaneous situations of the 1914s world. However, in the present world, the machinery of war and firepower has increased dramatically, and, therefore, it has become impossible to predict what may happen in geo-politics.

True that wars have never seized to happen; however, they have brought to light some pertinent issues present in the International Criminal Law. The Russian invasion, in this regard, is no different as it has placed before the world the discrepancies present in the jurisdiction of the International Criminal Court under the Rome Statute. 

In light of these preliminary submissions, the article here, in light of the International Criminal Law, discusses the Russian invasion of Ukraine, and analyses why the Office of the Chief Prosecutor is unable to investigate the Russian invasion for the offence of Crime of Aggression.

The Russian invasion of Ukraine

On 24 February 2022, the UN Security Council held an emergency meeting to prevent the Russian assault on Ukraine. However, following the Russian unresponsiveness, on 1 March 2022, Chief Prosecutor Karim Khan QC submitted a memorandum to open an investigation against the Russian action.

Prima facie, Russia’s invasion of Ukraine is a clear violation of Article 2(4) of the United Nations Charter, considering the fact that it is an attack upon the latter’s territorial integrity and political independence. Moreover, considering the words of the Russian leaders themselves, the invasion was to overrun Ukraine, depose its government, and end its desire to join the Western defensive alliance NATO. Thus, these reasons sufficiently prove and bolster the Russian action as a clear violation of international law, particularly that of the provisions of the Rome Statute namely Article 7, Article 8, and Article 8 bis. However, as the Rome Statute is read into this case of invasion, a significant issue unfolds. 

Considering the Rome Statute, neither Ukraine nor Russia is a party to it. Although Russia had initially signed the Rome Statute, it never ratified the same. Moreover, in 2016 Russia withdrew its signature as a mark of protest against the investigation of the annexation of Crimea. The fact that neither of the states is a party to the Rome Statute leads to the emergence of the loophole pertaining to the provisions on Crime of Aggression.

International Criminal Court & Its Jurisdiction

The International Criminal Court (hereinafter, ICC), established in 2002, was tasked to investigate and, where warranted, try individuals charged with the gravest international crimes. It functions under the Rome Statute and holds the jurisdiction to look into the crimes of Genocide, War Crimes, Crimes against Humanity, and the Crime of Aggression (Article 5). 

When the Russian invasion is analysed, in light of the provisions of the Rome Statute, it may prima facie be noted that neither of the two states is a party to the Rome Statute. In this regard, although primarily the jurisdiction of the ICC is limited to crimes committed within State-Parties (Article 11); nevertheless, Article 12(3) still allows the non-member states to submit a declaration, thereby accepting the jurisdiction of the Court. 

Thus, a declaration made under Article 12(3) by a non-member state allows either a state party to refer the aggrieved state’s case for investigation (Article 14), or allows the Prosecutor to initiate investigations proprio motu (Article 15). Notably, while a Prosecutor’s proprio motu action requires authorisation from the Pre-Trial Chamber of the ICC, a case referred to by a State Party requires no such sanction. Therefore, considering that 43 State Parties have already given their referral for investigation, the Office of Chief Prosecutor holds the authority to investigate the matter without any authorisation from ICC Pre-Trial Chamber.

Notably, an instance of such declaration was noticed in 2015 when Russia was involved in armed conflict in the Donbas region of Ukraine, and Ukraine submitted its declaration under Article 12(3), thereby accepting the ICC’s jurisdiction. Thus, going by the precedent, ICC does have the authority to investigate the Russian invasion.

However, the issue here lies in the fact that as per the Chief Prosecutor’s memorandum, the investigation is initiated against Russia only on War Crimes, and Crimes against Humanity. Quite evidently, it does not cover the Crime of Aggression. This is something not done purposely but only due to the provisions of the Rome Statute. Thus, we get acquainted with the loophole of the Rome Statute.

The loophole in the Rome Statute on Crime of Aggression

The most accusations Russia has received, since February 2022, is that of attacking the sovereignty and territory integrity of Ukraine. Prima facie, the Russian invasion of Ukraine seemingly comes within the definition of the Crime of Aggression. (Article 8 bis(2)) Still, the memorandum of the Chief Prosecutor does not cover it for investigation. Such has been done only because of the drafting loophole of the Rome Statute. Therefore, to better comprehend the same, it is pertinent to understand the Crime of Aggression. 

When the Rome Statute was first drafted and adopted in 1998, the Crime of Aggression was not a part of its list of offences. It was only in 2010, at the Kampala Review Conference, that the Crime of Aggression was added to the Rome Statute via Article 8 bis. The Rome Statute, in this regard, defines it “as use of armed force against the sovereignty, territorial integrity or political independence of a State, or in general, is inconsistent with the United Nations Charter”. Notably, it is through the Crime of Aggression that criminal Command Responsibility is imposed upon “commanders and other superior officials” who effectively exercise control over, or direct, the military or political actions of the attacking state under Article 28.

Now, in a case where State-Parties are involved, there are no issues for investigating the offence of Crime of Aggression. However, in a case where the states are not a party to the Rome Statute, Article 15 bis place exceptions to their averment of charge of Crime of Aggression. It posits that unless both the involved states are party to the Rome Statute, the aggrieved state cannot aver the Crime of Aggression until it has a referral from the UN Security Council, under Articles 13(b) read with 15 ter. Thus, Article 15 bis acts as a bar for non-member states to seek investigation and indictment of the attacking state for Crime of Aggression, thereby preventing the aggrieved state from seeking the investigation into the actions of superior authorities of the attacking state.

In light of this, Article 15 bis, in all likelihood, is a dilapidating loophole present in the Rome Statute. The Russian invasion of Ukraine is undoubtedly and undeniablyan act of aggression and Article 15 bis preventing the same from being investigated into bolsters it as a loophole. Moreover, the provision’s need for Security Council’s referral seems like a mockery of the aggrieved state miseries because it is highly unlikely that Russia, as a permanent member, would not use its veto power to negative such referral.

Thus, Article 15 bis prevents the indictment of Vladimir Putin in command responsibility even though he exercises significant control upon the Russian Forces as the Supreme Commander-in-Chief of the Armed Forces. Therefore, the loophole of Article 15 bis in the Rome Statute prevents prosecuting him for his action in the Russian invasion of Ukraine, thereby acting as a major drawback in the jurisdiction power of the ICC.

Conclusion

The Russian authorities, since the very initial days of the Ukrainian invasion, have been veiling and justifying their use of force under the guise of the “inherent right of individual or collective self-defence” against the alleged Ukrainian armed attack. Moreover, President Putin also made the allegation of genocide, committed by the Ukrainian forces, within the territories of Donetsk and Luhansk in order to legitimize their use of force. However, the Russian claim for justifying their invasion finds nothing concrete, in evidence to bolster them to be true. On the other hand, the local Ukrainian court has now been able to prosecute Russian Soldiers for War Crimes. Thisprosecution in itself not only negatives the Russian narrative of Ukraine’s invasion but also establishes and proves that Russia has indeed committed War Crimes and Crimes againstHumanity, in Ukraine.

In light of this, the Russian invasion of Ukraine proves to be a clear violation of international law, opening the door to the prosecution of Russian higher authorities. In tandem, it also qualifies as the Crime of Aggression thereby bringing into notice a critical loophole in the Rome Statute, as Article 15 bis, preventing the Prosecutor from investigating the same.

However, even with the agility in the Chief Prosecutor’s action, the investigation could not do complete justice to Ukraine unless it could cover the responsibility of President Putin, under Command Responsibility. Notably, in order to investigate Command Responsibility, the Office of the Prosecutor should first be authorized to investigate the Crime of Aggression.

Therefore, considering that law, in general, is an evolutionary process that depends primarily upon experiences, it is high time now that the Rome Statute be re-visited and re-vamped. Moreover, since the loophole of Article 15 bis gives unbridled authority to the permanent member-nations of the UNSC, it requires serious consideration.

(The views and opinions expressed in this article are the author’s own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)

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