Russia’s unprovoked military attack on Ukraine meets the definition of “act of aggression,” as defined by the International Criminal Court. The Rome Statute, which is the legal basis of the ICC, states in its Article 8 bis 2 that an “act of aggression means the use of armed force by a State against the sovereignty, territorial integrity and political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”
The Russian action is not for self- or collective defense, or a collective security measure that is authorized under Chapter 7 of the UN Charter. Ukraine did not pose any direct and imminent threat to Russia.
Article 2 in the Charter also obliges UN member states to “settle their international disputes by peaceful means” and to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
Russia’s military action is therefore totally unjustified under international law and inconsistent with the UN Charter.
In the same article 8 bis 1, the Rome Statute defines a crime of aggression as “the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
This means that President Vladimir Putin would be personally responsible for the crime of aggression.
Putin’s threat to use nuclear weapons to intimidate Ukraine and those governments that oppose the Russian aggression should also be considered an act inconsistent with the obligations that Russia undertakes as a member of the UN. Any agreement concluded under duress is not valid under international law.
As the war rages in Ukraine, the country has agreed to talk to Russia to try to attain a cease-fire and seek withdrawal of Russian forces from Ukraine. [A first round of talks took place on Feb. 28; a second, last week; at a third meeting, on March 7, Russia’s military announced a cease-fire and opening of humanitarian corridors in the cities of Kyiv, Kharkiv, Sumy and Mariupol, to come into effect immediately.]
When talks are held, it may not be politically wise to refer Putin to the International Criminal Court for investigation for his crime of aggression. Yet the fact remains that it was Putin himself who ordered the totally unprovoked and unjustified war on Ukraine.
Since the crime of aggression has no statutory limits, along with the other three international crimes (genocide, war crimes and crimes against humanity), Putin will be legally accountable for his action against Ukraine as long as he lives.
Meanwhile, the prosecutor for the ICC, Karim Khan, announced on Feb. 28 that he would seek authorization from the court’s pre-trial chamber to proceed with an investigation into allegations of war crimes and crimes against humanity, saying that there is a reasonable basis to believe that these crimes have been committed. War crimes and crimes against humanity fall within the purview of the ICC, along with the crime of aggression.
Ukraine is also seeking a remedy from the International Court of Justice, accusing Russia of planning a genocide of Ukrainian people. Neither Russia nor Ukraine has accepted the compulsory jurisdiction of that court. Russia is therefore under no obligation to accept any judgment by it. Still, the court’s judgment will have the weight of the world legal opinion behind it.
The UN General Assembly, when it convened in an emergency session last week under the Uniting for Peace resolution, triggered by the veto cast by Russia in the Security Council on Feb. 25, should also seek an advisory opinion from the International Court of Justice, which deals with cases between countries, as to whether Russia has committed an act of aggression. While such an advisory opinion has no legal force, it will also have the weight of the world legal opinion.
Russia’s predecessor, the Soviet Union, was expelled from the League of Nations for its military invasion of Finland in 1939. The UN Charter has a provision on expulsion of a member: Article 6 states: “A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.”
Since Russia wields a veto power in the Security Council, it is not possible for the UN to expel Russia from the institution, even if Russia does not deserve to be treated with such privileged status. Russia totally disregarded the UN when it invaded Ukraine amid deliberations by the Security Council to prevent a war from happening.
Iraq was allowed to remain a member of the UN even after it invaded and annexed Kuwait in 1990. That way, the UN could continue to engage with Iraq through the Security Council and maintain the channels of communication and pressure.
The UN will have to continue to engage with Russia to dissuade its further aggression.
The Ukrainian people are demonstrating their firm resolve to resist the Russian aggression, and the international community has been mobilizing support for them in an unprecedented manner. Russia is a major military power with nuclear weapons, but it cannot subdue and win the hearts and minds of independent, free people of Ukraine, who deserve the wholehearted support of the world.
The act of aggression clearly applies in the case of Putin/Russia. However the ICC has an opt-in clause for aggression, a crime whose definition was agreed after the Rome Statute (ICC treaty) came into force. Neither Russia nor Ukraine are signatories to the ICC nor have they opted in. Another option is pursuing the charge of aggression through the UNGA establishing an international Tribunal. This has to be weighed against achieving a ceasefire and peace first.
Good morning and a good international women’s day. You might want to talk to Susan Markham now retired from the Organization but active on women rights in NY on the contribution made by women working within the Secretariat of the UN to the advancement of equality under The Ad Hoc Group on Women Rights. This is an unknown chapter of UN history.