1. Introduction
Just as the world gradually sprung back to life from the harshness of the Coronavirus pandemic, another episode took the global center stage. Russia mounted aggression against Ukraine in what is considered picking up from where Russia stopped in the 2014 annexation of Crimea. Prosecutor Khan affirmed that Moscow states the critical reasons behind the aggression vests in the failure of the North Atlantic Treaty Organization (NATO) and the US to listen to their crucial security demands (Borger, 2022). They are; the need for NATO and the USA to stop advancing their army ventures in Central Asia and Eastern Europe, cease NATO’s gradual advances towards Moscow, and thwart Ukraine from becoming a member of NATO.
The slow build-up culminated into a full-scale conflict on February 24 this year. So far, the unrelenting conflict has led to massive destruction of property and infrastructure, loss of lives, and untold suffering. Over four million civilians have crossed borders to escape the brutality of Russian forces. The dark part of the conflict is that Russia launched attacks against innocent civilians hence committing war crimes against humanity (Bravin, 2022). Reports indicate the indiscriminate attacks by Russia have resulted in a humanitarian crisis. OHCHR watch (The Office of the United Nations High Commissioner for Human Rights) indicated that over 2 800 civilians had been killed in the conflict, including 206 children. Those who sustained injuries were about 3 200, including 289 children. Also, the forces have destroyed hospitals, residential apartments, schools, and other critical infrastructure causing misery.
The Ukraine-Russia conflict has quickly transformed and deformed the globe. Millions of people have fled the country. As time goes by, the economic strife sinks deeper, accompanied by escalating military conflicts and mounting war crimes. The conflict law prohibits willful torture, sexual violence, the killing of innocent civilians, and inhumane treatment of civilians and combatants in custody. An individual who abets or commits such atrocities is liable for war crimes (Borger,2022). The Russian president warned other powers not to intervene in the ongoing conflict. Putin stated that Russia has all the necessary instruments, including nuclear arms and ballistic missiles, to deter any intervention country as an indirect military helping hand. Ukraine’s allies cushion and bolster Ukraine via military equipment supply and intelligence.
Putin’s unending animosity forced the Ukrainian president to seek help in the international arena by asking the International Criminal Court to intervene and address the escalating war crimes in Ukraine. Together with its allies, Ukraine appealed to the United Nations to probe into the matter to determine possible war crimes that Putin is committing without remorse in Ukraine. What complicates the situation is that both the aggressor and aggressed are non-member states to the Hague (Borger,2022). Even though both parties are not attached to The Hague, President Zelenskyy sought authorization based on atrocities committed against the Ukrainian population and conflict offenses. The Ukrainian president approached the ICC because it is the only slid global judicial body that can try people like Putin for crimes related to war and genocide. The UNHR (The United Nations Human Rights) council voted to welcome the appeal made by Ukraine about the invasion. Their debate favored Ukraine, with the commission coming up with three independent experts to participate in the investigations. Their focus took a broader scope of investigating all war crimes committed by Russia based on international law (Borger,2022). They are Luhansk, Donetsk, Crimea regions, and other segments of Ukraine since Putin’s February invasion. Yevhemiia Filipenko (Ukraine’s United Nations ambassador) informed the HRC (Human Rights Council) that Russian forces stimulate fear and ignite panic among the innocent population, including targeting hospitals, orphanages, and kindergartens, thus qualify as war crime perpetrators. During the debate, only four members were in support of Russia. This bolded that a more significant part of the world is against Russian unjust and unprovoked adversities in Ukraine.
Canada took the same stance. In a report in Reuter on March 2, 2022, Canada requested the International Criminal Court look into the allegations of atrocities committed by Russian forces in Ukraine. The speech was delivered by Melanie Joly (the Canadian Foreign Minister) during the United Nation’s Human Rights Council session in Geneva, Switzerland (Reuters,2022). The minister categorically made it clear that human rights apply internationally and cannot be manipulated to feed a person’s ego or justify crimes and war. The paper presents a precise analysis of the origin and the unfolding confrontation between the Russian Federation and Ukraine. It also offers a bird’s eye view of the constitution of The Hague and its probable legal jurisdictions and instruments that can be used to arrest the situation.
2. Main Body
2.1 The Prosecutor’s Statement
In February, when Russia advanced into Ukraine, The International Criminal Court office stated that it would strive for approval from the ICC court to open a file on war crimes in Ukraine that Russia is perpetuating under the direction of Putin. Prosecutor Karim Khan considered the atrocities grave matters requiring urgent intervention (Chen,2022). He stated that his office would solicit support and financial assistance from the 123 members of the ICC to facilitate the investigation process. He termed the Ukrainian conflict as serious as informed by the mission of his office. Prosecutor Khan said that,
“There is a reasonable basis to proceed with opening an investigation…In particular, I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine” (Chen 2022, para. 4).
The prosecutor considered the escalation of the war to form an investigation basis that his office would look into any crimes that fell within the jurisdiction of his office. In situations where the prosecutor has solid reasons to investigate crimes of aggression, article 15 bis paragraph 6 of the Rome statute states that the prosecutor must determine whether the court’s security office has determined the use of force by the accused state. The prosecutor is then allowed to inform the Secretary-General about the facts they have consolidated. The prosecutor may continue investigating aggression when the council decides on aggression allegations (Chen, 2022). The Pre-Trial Chamber gave Karim Khan the green light to make an extensive probe into the allegations.
He meant crimes committed on any piece of Ukraine. Canada threw its weight behind the court and asked Putin to cooperate with the International Criminal Court (Chen,2022). Despite such demands, Moscow maintained that its operations in Ukraine are ‘special operations’ meant to cushion its integrity. Russia’s actions seem to go against most Western countries’ wishes. This was reflected in the way members attending the Geneva conference walked out when Sergei Lavrov spoke to the United Nations Human Rights Council. Canada’s Joly was among those who walked out.
2.2 The ICC Intervention Ability
The International Criminal Court is the most powerful organ that offers states an opportunity to sue another state or an individual for armed conflict charges and offenses against the innocent non-participating population. It was designed at a 1998 conference in Rome and became operational in 2002 after 60 ratifications (International Criminal Court, 2022). The critical role of the court is to eliminate immunity against offenses that attract the global attention. The preamble of The Hague states that fatal crimes that attract the global community’s attention must not evade punishment. Such crimes need effective prosecution, with the preliminary stages at the national level (Princess, 2019). The move by Zelenskyy to award jurisdiction to the court is a sure sign that Ukraine is in poor shape. Considering that Russia faces genocide and crimes against humanity, the court has various parts that it can employ to pin down the perpetrators in Kremlin (Borger, 2022). Resolution 3074 allows states to help each other in investigations, arrests, and bringing individuals suspected of committing atrocities against the innocent population and armed conflict charges to court. The statement means that the court can extradite or prosecute Putin and his partners in Kremlin. Every state has the responsibility to help in this noble process.
The ICC executes crimes committed since its inception. The crimes that Russia is accused of were committed after 2002, meaning the court may exercise them. They can rely on Article 12, which enables it to exercise over individuals of a non-state member and crimes carried out within the borders of a non-state like Ukraine. The court can rely on the UN Security Council’s Court either principle or the prosecutor’s initiation. Karim Khan has tangible pieces of evidence that he continues collecting a warrant pinning the perpetrators. Article 16 requires the Security Council to pinpoint global security and peace (Agence France-Presse,2022). If such factors are considered, global stability is already in jeopardy. Moscow claimed that the allegations are baseless because Russia is not a member. However, the ICC has the power to exercise positive international law (Ronen,2018). It can try any person, including those purported to have ratione personae immunity like Putin. The issue of membership is immaterial.
While speaking from Bangladesh, Karim made a statement on February 25 that he was closely monitoring the situation in Ukraine, including the adversities with concern. He reminded all parties carrying out hostilities on the Ukrainian land that he would rely on the jurisdiction in the September 2015 declaration to carry out an investigation. According to the jurisdiction, the prosecutor has the power to look into any act of crime against humanity and genocide within the Ukrainian enclosures dating back to February 20, 2014 (Orakhelashvili,2018). The prosecutor mentioned offenses related to the above, claiming that they are also part and parcel of crimes against humanity. They include inciting, ordering, or facilitating in another way to the perpetuation of war crimes.
Such individuals may have charges to answer before the International Criminal Court based on what Khan termed ‘the principle of complementarity. He urged all players involved in the friction to abide by and respect their duties and responsibilities as enshrined under the global humanitarian law (Orakhelashvili,2018). The prosecutor addressed an array of questions on his desk about Rome Statute amendments concerning the use of force enacted in 2018. The key issue concerns the application of the Crime of Aggression in the present scenario. The main complication is that the fighting members, as Khan noted, are not members of the ICC court in the Hague. Neither Russia nor Ukraine are members of the Rome Statute (International Criminal Court,2022). This means that Khan is limited in using the “Crime of Aggression” clause against Russia. However, the prosecutor promised to keep a close eye on the conflict to alter the atrocities unfolding in Ukraine. He vowed to use his office’s impartial and independent elements to ensure that all those responsible for human suffering in Ukraine were held accountable.
Article 8 bis of the Rome Statute of the ICC discusses the aspect of the Crime of Aggression that is also troubling the prosecutor. Article 8, paragraph one of the statutes elaborates the use of force as “initiation, planning, preparation, or execution by an individual in a position to execute, control and direct the military or political actions, with actions that breach the United States Charter” (Orakhelashvili, 2018, p.467). In this case, the scale of aggression refers to using force to sabotage another state’s sovereignty, political harmony, or territorial integrity. It also includes other actions parallel to the Charter (Orakhelashvili,2018). The 1974 UN resolution elaborates on such acts. They include the attack or invasion by a state’s military into another state, annexation, and military occupation of another state’s territory. Another example is the bombardment of another state, blockade of coasts or ports, attacking another state by sea, air, or land, and sending armed mercenaries or army to attack another state. Article 15bis paragraph 5 states that under the Rome Statute, The Hag lacks the power to execute “its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory”(p.456). Russia qualified to be investigated for it ticks all of the above.
2.3 The Interactions of the United States and Russia with the ICC
After convincing the court tribunal about the unfolds in Ukraine, the prosecutor was allowed to probe the allegations. This marks the preliminary stages that could make Putin and other Kremlin associates face war crime charges at the ICC in The Hague (International Criminal Court,2022). As of March 1, 2022, the prosecutor stated that he would commence the probe early based on the charges he had already compiled. He only sought affirmation of the charges and any other crimes that may occur or recur as the conflict takes on new phases. Dmitry Peskov (Russian Spokesman) stated that he rejects the investigation countering that Russia is not a member of the ICC; hence the court lacks the mandate to carry out such a probe against them. Russia considers the ICC as among the tools used by the United States to attack Moscow. They believe the move by Karim Khan to have been stimulated by the White House. It is not the first time Ukraine has knocked at the International Criminal Court door seeking a helping hand.
The state started seeking help in 2014 when Russia annexed Crimea reducing a chunk of the Ukrainian map. In 2019, the ICC’s prosecutor’s office had already found a reasonable foundation to charge Russia with war crimes during the annexation of Crimea (International Crime Court,2022). They include but are limited to sexual violence, torture, and intentional violence towards civilians. The court believed the wars to have been committed by the separatists backed by Putin, fighting the Ukrainian government (Shelest, 2020). Various reasons stood in the way of the Crimean development. The office of the prosecutor was handling many cases as of 2019. Again, the Coronavirus disease sneaked into their investigations hence disrupting the proceedings. Putin’s move to invade Ukraine changed the pendulum of the calculus prompting Mr. Khan to combine the two cases.
Russia and the United States of America have had frosty relationships with the International Criminal Court from a historical angle. In the 1990s, the US did a commendable job fostering negotiations to design a permanent court that addresses global war crimes (Bravin,2022). The objective was to substitute ad-hoc tribunals that the United Nations had structured to try humanitarian crimes in the Rwanda and Yugoslavia conflicts. President Clinton signed the ICC Statute with many reservations, for it failed to offer the United States the coveted power to bar probes against its people. President George Bush relied on the same reasons to entirely withdraw. Like the United States, Russia signed the ICC Rome Statute but withdrew from the Hague when the court classified Russia’s annexation activity as a military occupation.
The court termed the annexation illegal (Bravin,2022). On some occasions, the United States and Russia have shared a table to support a common course. They helped the United Nations Security Council referrals entailing the 2011 Libya case and Darfur’s 2005 case. The court’s jurisdiction directly affects its members or those states that seek its help for limited specific purposes. Another intervention is when a claim is referred to the court by the Security Council. In this case, Ukraine is seeking limited help in addressing war crimes in Ukraine.
3. Conclusion
The ongoing conflict between Ukraine and Russia is an expansion of the past conflicts that the two neighbors have experienced in the past years. The contest took the top gear in February 2020 when Russia advanced into the Ukrainian territory terming the move as a ‘special operation.’ Since February, an array of international war crimes has been alleged to have been committed by Russia. They include killing innocent people, bombarding settlements, forming sea blockades, destroying infrastructure, and attacking kindergartens and health centers. The Hague is the most viable channel that can address such use of force by Russia. However, Russia and Ukraine are not part of their members. Considering that Zelenskyy has authorized a probe over atrocities against his people and armed conflict charges, The Hague has the power to intervene under its jurisdiction. Considering that Russia faces genocide and crimes against humanity, the court has various parts that it can employ to pin down the perpetrators in Kremlin. Resolution 3074 allows states to help each other in investigations, arrests, and bringing individuals suspected of criminal charges against innocent populations and armed conflict charges to court. The statement means that the court can extradite or prosecute Putin and his partners in Kremlin. Every state has the responsibility to help in this noble process.
The ICC executes crimes committed since its inception. The crimes that Russia is accused of were committed after 2002, meaning the court may exercise them. Also, Article 12 enables the court to exercise over individuals of a non-state member and crimes carried out within the borders of a non-state like Ukraine. As it stands, Karim Khan has tangible pieces of evidence to warrant pinning the perpetrators and to show that world peace is in jeopardy. Moscow claimed that the allegations are baseless because Russia is not a member. However, the ICC has the power to exercise positive international law. It can try any person, including those purported to have ratione personae immunity like Putin. The issue of membership is immaterial. The intervention is crucial for it will stop Russia from its continued occupation of Ukraine, which seems to take us back to the ancient maps of the USSR. The intervention is crucial for it will bar Russia from targeting other former members of the USSR by granting them the needed autonomy to lead a sovereign life. The ICC should continue moving heaven and earth to help Ukraine stand again.
References
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