Crime Watch: ICC Prosecutor Monitors Ukraine Invasion | Military
THE HAGUE, Netherlands (AP) — The prosecutor of the International Criminal Court has warned fighters and their commanders that he is monitoring Russia’s invasion of Ukraine and has jurisdiction to prosecute war crimes and crimes against humanity.
But prosecutor Karim Khan admitted he could not investigate the most talked about issue at this stage of the invasion: the crime of aggression.
Western leaders have widely condemned Russian President Vladimir Putin’s order to invade Ukraine. US President Joe Biden said on Thursday the invasion “has always been naked aggression, Putin’s desire for empire by any means necessary”, while British Prime Minister Boris Johnson called it a “war of ‘Aggression of Vladimir Putin’.
While the global treaty that established the Hague-based tribunal in 2002 has been updated to include the crime of aggression since 2018, Khan said he has no jurisdiction over the matter because neither Ukraine nor Russia are among the 123 member states of the tribunal.
The only way for the Court to gain jurisdiction over the crime of aggression in the conflict in Ukraine is for the United Nations Security Council to ask the ICC to investigate.
It’s ‘not going to happen,’ said Brendan Plant, a fellow at the Lauterpacht Center for International Law and Cambridge University’s Downing College, because Russia is one of the permanent council members with veto power. .
Putin sought to justify his invasion by warning that pro-Russian rebels in eastern Ukraine faced what he called genocide at the hands of Ukrainian forces.
Plant called it a “fabricated” legal justification.
“Even if this twisted invocation of the right to self-defense were accepted, it is extremely difficult to see how an invasion of such magnitude, with incursions into multiple sites across the country, far beyond even the most wider areas of breakaway regions, could be justified as a necessary and proportionate act of self-defence,” he said.
While the crime of aggression is beyond the reach of the international tribunal, crimes committed during the conflict are not.
Khan said his office “may exercise its jurisdiction and investigate any act of genocide, crime against humanity or war crime committed on the territory of Ukraine.” This is because Ukraine, although not a Member State, has accepted the Court’s jurisdiction.
In a warning that could apply to Russian civilian and military leaders, Khan said “anyone who commits such crimes, including ordering, instigating or otherwise aiding in the commission of such crimes, may be liable to prosecution before the Court”.
He added: “It is imperative that all parties to the conflict respect their obligations under international humanitarian law.”
War crimes and crimes against humanity cover many offenses committed during armed conflict, including murder, torture, rape and forced evictions of civilians. Laws governing the conduct of war aim to curb the disproportionate use of force and to protect civilians and troops no longer participating in the fighting, such as prisoners and the wounded. They also prohibit attacks on civilian targets and infrastructure such as hospitals and on cultural and religious sites such as churches.
Rights group Amnesty International said Friday that Russia’s invasion was “marked by indiscriminate attacks on civilian areas and strikes on protected objects such as hospitals”.
The group made the claim after analyzing photos, videos and satellite images of three attacks carried out in the early hours of February 24.
“The Russian government, which falsely claims to only use precision-guided weapons, should take responsibility for these acts,” said Agnès Callamard, Secretary General of Amnesty International.
The ICC was created in 2002 to prosecute individual perpetrators and their commanders responsible for war crimes, crimes against humanity and genocide, in cases where nations are unable or unwilling to hold their own trials. The crime of aggression was later added to the list of offenses in the Rome Statute treaty that founded the Court.
Although the ICC cannot prosecute anyone for assault during the invasion of Ukraine, there is another way, said Carsten Stahn, professor of international criminal law and global justice at Leiden University.
“We have about 40 states around the world that actually have crime of aggression legislation, and some of them could also use that legislation to exercise jurisdiction over aggression,” Stahn said.
Universal jurisdiction is invoked by some nations in cases of war crimes and crimes against humanity, allowing them to prosecute crimes committed outside their own borders.
One of the most publicized examples of its use was against former Chilean dictator Augusto Pinochet, who was arrested in London in 1998 on a Spanish warrant. He ultimately did not stand trial due to health issues, but his case served as a warning to leaders accused of crimes that they could no longer roam the world with impunity.
Although Ukraine is not a member of the ICC, it has accepted the Court’s jurisdiction over alleged crimes committed on its territory since 2013. This acceptance forms the legal basis for Khan’s warning to fighters that he could prosecute the crimes committed during the Russian invasion.
The court has already conducted a preliminary investigation into crimes related to the violent crackdown on pro-EU protests in Kyiv in 2013-2014 and alleged crimes in Crimea, which Russia annexed in 2014, and eastern ‘Ukraine.
In December 2020, Fatou Bensouda, then ICC prosecutor, said the investigation had revealed indications that “a wide range of behavior constituting war crimes and crimes against humanity within the jurisdiction of the Court were committed” in Ukraine. However, court prosecutors have yet to ask judges for permission to open a full investigation.
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