Analysis: the State's support for the International Criminal Court can go much further in seeking accountability for Russia's invasion of Ukraine
Announcing a voluntary contribution of €150,000 to the Office of the Prosecutor of the International Criminal Court, Minister for Foreign Affairs Simon Coveney described Ireland as a "leading supporter" of the Court. Indeed Ireland has joined with 42 other countries in the unprecedented diplomatic move of referring the situation in Ukraine to the International Criminal Court.
The Court has been empowered by this support and is already playing a role in seeking accountability for crimes in Ukraine. Prosecutor, Karim Khan, has opened an investigation, conducted an onsite visit and called on the parties to observe the applicable rules of international humanitarian law. However, the Prosecutor will not be able to charge Russia's political or military leaders with an offence for invading Ukraine itself as things stand.
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From ABC News, the International Criminal Court is opening an investigation into whether Russian forces committed war crimes or crimes against humanity
The International Criminal Court has jurisdiction over genocide, crimes against humanity and war crimes in Ukraine, and there have already been numerous credible allegations of war crimes committed by Russian forces. Widespread or systematic attacks on civilians and civilian objects, extrajudicial executions, deportations and sexual violence may also amount to crimes against humanity if carried out as official policy. Some political leaders, including Ukrainian president Volodymyr Zelensky, have invoked the language genocide.
What the International Criminal Court cannot prosecute at present in the context of Ukraine is the crime of aggression. This offence addresses the illegal use of armed force by one State against the sovereignty, territorial integrity or political independence of another in breach of the Charter of the United Nations.
Russia’s invasion entails a blatantly unlawful use of force against Ukraine but it cannot be tried as a crime before the International Criminal Court with neither Russia nor Ukraine being parties to the Rome Statute, the treaty which created the permanent court in the Hague. The United Nations Security Council could give the Court jurisdiction over aggression, but Russia could legally and would unquestionably veto any such move.
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From RTÉ Radio 1's Morning Ireland, Russia accused of covering up war crimes in Mariupol
There is another option to bring Russia’s aggression before the International Criminal Court, one which Ireland could take the lead on. This would entail amending the Rome Statute to allow the United Nations General Assembly to refer situations to the Court, where the Security Council is blocked from doing so by one or more of the five permanent members.
The General Assembly is already empowered under the 1950 "Uniting for peace" resolution to step in and recommend action when the Security Council cannot act to respond to breaches of the peace or acts of aggression. It was this mechanism which allowed the General Assembly to adopt the "Aggression against Ukraine" resolution on March 1st, condemning Russia’s invasion in no uncertain terms as a violation of the Charter of the United Nations.
When the treaty establishing the International Criminal Court was being negotiated in 1998, a number of States supported the idea that the General Assembly should be permitted to give the Court jurisdiction over aggression using "United for peace". The former President of the Court, Chile Eboe-Osuji, has recently voiced his support for amending the Rome Statute to allow General Assembly referrals in the face of a Security Council veto.
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From BBC News, are war crimes being committed by Russia in Ukraine?
Ireland could build on its valuable efforts at the international level related to Ukraine, which have included supporting the General Assembly resolution condemning Russia’s aggression and joining in the referral to the International Criminal Court. It could lead a diplomatic initiative to amend the Rome Statute so that the Court could receive requests to investigate and prosecute the crime of aggression from the General Assembly acting under "Uniting for peace".
Despite the broad consensus that Russia’s invasion is an unlawful act of aggression, there are limited options for holding its leaders criminally liable for the crime of aggression at present. The proposal for a special international tribunal for the crime of aggression has been received favourably by the Ukrainian authorities. An ad hoc court along the lines of those created for Sierra Leone and Cambodia and a domestic Ukrainian tribunal with support from a body such as the Council of Europe are other possibilities.
These approaches have their merits, but they also face challenges and obstacles, not least potentially having to build a new tribunal from scratch. The International Criminal Court has already been operational for two decades, albeit with an imperfect record. A one-off tribunal may serve to reinforce the view that international justice is selectively applied, and often in furtherance of the ends of Western powers.
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From RTÉ Radio 1's Morning Ireland, calls for further sanctions following shocking findings of apparent war crimes and atrocities by Putin's troops in Ukraine
Ireland is well-placed to lead an endeavour to reform the International Criminal Court and grant an enhanced role to the General Assembly. As well as having supported the work of the Court in general, including an annual financial contribution of well over €1 million, Ireland has itself accepted the jurisdiction of the Court over the crime of aggression.
The "steadfast" support of Ireland for the Court must also involve the Irish government working to ensure that the Court can meet contemporary challenges. The recent election to the Security Council underscores Ireland's positive reputation for constructive engagement in international affairs.
Sitting on the Security Council will have brought home how the permanent members can stymie efforts to ensure international peace and security. Ireland has supported the recent "veto initiative" which will see the General Assembly automatically meet in the event of any use of the veto at Security Council. The veto, in the words of Simon Coveney, "is often an abuse of power, undermines multilateralism and does not reflect majority opinion".
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From RTÉ News, Minister for Foreign Affairs Simon Coveney meets Ukrainian government officals in Kyiv
Amending the Rome Statute with a view to allowing the General Assembly to bring Russia’s aggression before the Court will require considerable political, diplomatic and legal effort. Questions will arise as to whether the General Assembly might be overstepping its mandate, although sufficient support amongst its members could ground such an important evolution of its role.
Submitting a proposal for an amendment of the Rome Statute would be a straightforward first step and would put the members of the Court’s Assembly of States Parties on notice. Were it to do so, Ireland would likely find support amongst those States who have already engaged the Court on Ukraine, many of whom have previously accepted its jurisdiction over aggression, and several of whom are neighbors of Russia.
While there will very likely be future prosecutions for war crimes occurring in Ukraine, much of the death, destruction and displacement currently being witnessed may not give rise to criminal responsibility in and of itself, even if an inevitable by-product of an aggressive war. This reinforces the case for the prosecution of the crime of aggression. If a trial for aggression was to proceed before the International Criminal Court, Ukrainian victims would be entitled to participate in proceedings and receive reparations.
Ireland can play an important role in pursuing accountability for Ukraine
The last time aggression was successfully prosecuted by an international court was before the Nuremberg and Tokyo military tribunals which sat after the Second World War. The judges at Nuremberg described aggression as the "supreme international crime", for it contains "the accumulated evil of the whole". Russia’s illegal invasion of Ukraine shows the prescience of this observation. It may also signal a turning point in how other states respond to egregious breaches of international law.
Ireland can play an important role in pursuing accountability for Ukraine and remedying an obvious shortcoming in the system of international criminal justice. Every option needs to be deployed if we are ever to realise the United Nations’ goal of saving "succeeding generations from the scourge of war".
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
