International Community Calls for a New Court to Prosecute the Crime of Aggression

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

Shortly after Russia launched its unlawful, full-scale invasion of Ukraine in February 2022, many began advocating for a new tribunal to prosecute Russian leadership for the crime of aggression. With 30 core states discussing the creation of a new adjudicative body, proponents are pushing for a way to address Russia’s breach of the international order and create deterrence in the future. 

 
A woman mourns at her son’s grave after he died fighting in the war on Ukrainian Independence Day in Kharkiv, Ukraine. Courtesy of Bram Janssen and Associated Press.
  

First recognized by the International Tribunal at Nuremberg, the crime of aggression, as defined by Article 2(4) of the UN Charter, prohibits the use of force, barring narrow exceptions. It imposes criminal liability on those in violation. Largely dormant throughout the Cold War, the International Criminal Court’s (ICC) Rome Statute sought to bring the crime under its jurisdiction but controversy at the time has left both the definition and activation apparently in limbo. Even with the additional Kampala amendments created in 2018 after the atrocities in Uganda, the grey zone remains. This has led many to call for a separate tribunal, akin to the one established at Nuremberg, to handle aggression cases stemming from the Russo-Ukrainian War. Beyond WWII, cases prosecuting aggression are scant. The UN Security Council set up courts to try the perpetrators of atrocities in Yugoslavia and Rwanda in the 90’s but with Russia as a permanent member, this is not a viable option. 

Further bolstering their demands, the Rome Statute has a major loophole: only parties to the Rome Statute fall under ICC jurisdiction. This means Russia, a non-party, cannot be tried by the Court currently. Additionally, domestic courts afford many members of The Russian Troika, including Putin, immunity. Coupled with the lack of precedent for prosecuting this crime generally, the ad hoc tribunal is becoming more compelling. 

Three major legal solutions have emerged. The first is a multilateral treaty between Ukraine and willing states, similar to the International Military Tribunal at Nuremberg. The second is a Ukraine-UN tribunal created via resolution. The last is a domestic-international hybrid chamber based in Ukraine. The first two circumvent the troika prosecution problem, and the deputy head of Ukraine’s Presidential Office has rejected the third option as unconstitutional. Many are opposed to a tribunal that would present the crime of aggression as something bilateral, between Ukraine and Russia alone, but much of this hinges on the level of international participation.

Because the crime of aggression carries a unique gravity, many are advocating for a clearly defined and replicable solution to serve a deterrent effect. In the meantime, many efforts to gather and preserve evidence of aggression are ongoing. EU member states have already agreed to support establishing a Centre for Prosecution in the Hague with American endorsement. This staggered approach has come with benefits already. As “the mother of all crimes”, whatever option the world chooses will likely become precedent in the future, further complicating the matter. As worries of selective justice and tribunal legitimacy continue, how to prosecute the crime of aggression is a legal question we may finally get an answer to; however, it will also be impossible to separate these two nations’ complex, centuries-long history without prosecution, definition, and resolution. As accountability efforts continue, Ukraine must determine which normative expectations it seeks to abide by and consider negotiating the Rome Statute and Kampala Amendments or developing a tribunal system prepared to adjudicate over the troika.

 

Note: This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

International Crisis Group – A New Court to Prosecute Russia’s Illegal War? – 29 March 2023



ICJ Holds Public Hearings Regarding Armenia’s Preliminary Objections to Court Jurisdiction

By: Sarah Sandoval 

Impunity Watch News Staff Writer 

THE HAGUE, Netherlands – From April 22-26, 2024, the International Court of Justice (ICJ) heard arguments on the preliminary objections raised by Armenia in the case of Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia). The delegation of Azerbaijan was led by HE Mr Elnur Mammadov, Deputy Minister for Foreign Affairs of the Republic of Azerbaijan, while the delegation of Armenia was led by HE Mr Yeghishe Kirakosyan, Representative of the Republic of Armenia on International Legal Matters. 

 
Panel of judges at the International Court of Justice. | Photo courtesy of The Armenian Report.
  

The case stems from proceedings instituted by Azerbaijan in 2021, alleging that Armenia engaged in ethnic cleansing and discrimination against Azerbaijanis. Azerbaijan accused Armenia of violating Articles Two through Seven of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

In April of 2023, Armenia responded by raising preliminary objections to the jurisdiction of the Court and the admissibility of the claims. As a result, the proceedings were suspended pending a review of the objections. The hearing pursuant to that review concluded on April 26, 2024. 

In its objections, Armenia claimed that Armenia did not consent to the jurisdiction of the Court for the full scope of Azerbaijan’s claims. Armenia attested that it only submitted to the jurisdiction of the ICJ in regard to disputes arising under the CERD. Armenia stated that First Nagorno-Karabakh War, which Azerbaijan cited, ended before the CERD was in effect and is therefore outside of the scope of jurisdiction as well as inadmissible. Armenia also claimed that the alleged use of booby traps and landmines, as well as environmental harm, do not fall under racial discrimination and are therefore not subject to the CERD. The full written objections, as well as the transcripts of the hearings, can be found on the ICJ website. 

Azerbaijan asked the Court to dismiss the preliminary objections, either on the grounds that they are not valid objections or on the grounds that each should be decided on the merits. The Court will now deliberate on the objections raised by Armenia. The date of the decision will be announced at a later date. 

For further information, please see: 

ICJ – Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) – Preliminary objections

ICJ – Conclusion of the public hearings held from Monday 22 to Friday 26 April 2024 – April 26, 2024

ICJ – Preliminary Objections of the Republic of Armenia – April 21, 2023

ICJ – The Republic of Azerbaijan institutes proceedings against the Republic of Armenia and requests the Court to indicate provisional measures – September 23, 2021

 

ICC Office of the Prosecutor Launches New Policy to Bolster Principles of Complementarity and Cooperation

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On April 25, 2024, in accordance with several new policies released recently, the International Criminal Court (ICC) Office of the Prosecutor launched a new Policy on Complementarity and Cooperation. The Policy is the product of a global consultation process that began in October of last year that engaged States parties, civic society, academic institutions, and affected communities.

 
ICC Prosecutor Karim A.A. Khan during a visit to Bangladesh. | Photo courtesy of ICC.
  

The goal of the Policy is to fortify the ICC’s application of the Rome Statute’s principles of complementarity and cooperation. The principle of complementarity calls for collaboration between national criminal jurisdictions and the ICC. In essence, while states have primary authority to investigate and prosecute international crimes, the ICC may step in on a case-by-case basis to ensure that these crimes are justly addressed.

The new Policy is aimed toward strengthening the ICC’s relationship with other criminal jurisdictions to serve the ultimate goal of investigating and prosecuting global atrocities. To effectuate this, the Policy proposes a two-track strategy that will promote cooperation and partnership with states as well as frequent complementary action, while remaining faithful to the ICC’s mandate to independently and impartially handle Rome Statute crimes.

This approach reflects the important balance the ICC seeks to maintain between its duties and that of other jurisdictions. If this equilibrium is disrupted, however, the principle of complementarity, which is bolstered by this new Policy, allows the ICC to take action. This notion is forthright in the body of the Policy which states, “if States step up, the Office will step out. But equally, the reverse is also true. If states do not step up, the Office will not hesitate to fulfill its mandate.”

The Policy, which is referred to as a “renewed partnership for accountability,” suggests four pillars for enhanced cooperation and complementarity: (1) creating a community of practice, (2) technology as an accelerant, (3) bringing justice closer to communities, and (4) harnessing cooperation mechanisms.

Each of the new ICC policies launched in recent months have put victims and survivors of crimes at the forefront, and this one is no exception. The Deputy Prosecutor, Mame Mandiaye Niang, expressed that the Policy’s partnership-centered approach stands to deliver more for victims by way of further increased vigilance to global atrocities.

To aid in the implementation of the Policy, the Office of the Prosecutor has established a trust fund specifically dedicated to complementarity and cooperation. Contributions to this fund will support complementarity activities, such as providing information and assistance to national authorities in the implementation of their Rome Statute obligations. Further methods of deepening the ICC’s relationships with other jurisdictions will be supported by the trust fund as well, including a Complementarity and Cooperation Forum and other accountability efforts.

For Further Information, please see:

ICC – ICC Office of the Prosecutor launches policy on Complementarity and Cooperation – 25 Apr. 2024

ICC – Policy on Complementarity and Cooperation – Apr. 2024

Legal Information Institute – Complementarity defined – ND