GAGA – The prosecutor of the International Criminal Court has informed the militants 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 has admitted that he cannot investigate the issue most talked about 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 that the invasion had “always been about open aggression, about Putin’s desire for empire by any means necessary”, and British Prime Minister Boris Johnson called it “Vladimir Putin’s war of aggression”.
While the Global Compact, which established the Hague Tribunal in 2002, has been renewed to include the crime of aggression since 2018, Khan said he has no jurisdiction over it because neither Ukraine nor Russia is among the 123 Member States of the Court.
The only way to gain court jurisdiction over the crime of aggression in the conflict in Ukraine is if the UN Security Council turns to the Interior Ministry for an investigation.
That “won’t happen,” said Brendan Plant, an employee of the Lauterpacht Center for International Law and Downing College at Cambridge University, because Russia is a permanent member of the council with veto power.
Putin tried to justify his invasion by warning that pro-Russian rebels in eastern Ukraine had faced what he called genocide by Ukrainian forces.
Plant called it a “fictional” legal justification.
“Even if this cunning imposition of the right to self-defense was passed, it is very difficult to understand how such a large-scale invasion with invasions through several facilities across the country, far beyond even the broadest territorial claims of separatist regions, can be justified as necessary and a proportional act of self-defense, ”he said.
While the crime of aggression is beyond the reach of the Magistrates’ Court, the crimes committed during the conflict are not.
Khan said his office “can exercise its jurisdiction and investigate any acts of genocide, crimes against humanity or war crimes committed in Ukraine.” This is because Ukraine, although not a member state, has accepted the jurisdiction of the court.
In a warning that could extend to Russia’s civilian and military leadership, Khan said that “any person who commits such crimes, including by ordering, inciting or otherwise facilitating the commission of these crimes, may be prosecuted.” .
He added: “It is essential that all parties to the conflict fulfill their obligations under international humanitarian law.”
War crimes and crimes against humanity cover many crimes committed during armed conflict, including killings, torture, rape and forced expulsions of civilians. Laws governing warfare are aimed at curbing the disproportionate use of force and protecting civilians and troops who are no longer involved in hostilities, such as prisoners of war and the wounded. They also prohibit attacks on civilian facilities and infrastructure such as hospitals, as well as on cultural and religious sites such as churches.
The human rights organization Amnesty International said on Friday that Russia’s invasion was “marked by indiscriminate attacks on civilian areas and strikes on protected facilities such as hospitals.”
The group said this after analyzing photos, videos and satellite images of the three attacks on the morning of February 24.
“The Russian government, which falsely claims to use only high-precision weapons, must take responsibility for these actions,” said Agnes Kalamar, secretary general of Amnesty International.
The Interior Ministry was established in 2002 to prosecute individual perpetrators and their commanders responsible for war crimes, crimes against humanity and genocide, in cases where countries are unable or unwilling to hold their trials. The crime of aggression was later added to the list of offenses in the Treaty of Rome, which established the court.
Although the Interior Ministry cannot prosecute anyone for aggression during the invasion of Ukraine, there is another way, said Carsten Stan, a professor of international criminal law and global justice at Leiden University.
“We have about 40 countries in the world that actually have legislation on the crime of aggression, and some of them can use that law to exercise jurisdiction over aggression,” Stan said.
Some countries invoke universal jurisdiction in cases of war crimes and crimes against humanity, which allows them to prosecute crimes committed outside their own borders.
One of the most high-profile examples of its use was against former Chilean dictator Augusto Pinochet, who was arrested in London in 1998 on a Spanish warrant. He was eventually not prosecuted for ill health, but his case served as a warning to leaders accused of crimes that they would no longer be able to travel the world with impunity.
Although Ukraine is not a member of the Interior Ministry, it has recognized the court’s jurisdiction over alleged crimes on its territory since 2013. This adoption is the legal basis for warning Khan of the militants that he may be prosecuting crimes committed during the Russian invasion.
The court has already conducted a preliminary investigation into crimes related to the violent suppression of pro-European protests in Kyiv in 2013-2014, and allegations of crimes in Crimea, which Russia annexed in 2014, and in eastern Ukraine.
In December 2020, then-Interior Ministry prosecutor Fatou Bensouda said that the investigation revealed signs that “a wide range of acts had been committed in Ukraine, constituting war crimes and crimes against humanity that fall under the jurisdiction of the Court.” However, court prosecutors have not yet asked the judges for permission to open a full-scale investigation.
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