The crime of aggression: concept and grounds for bringing Russia’s high-ranking military and political leadership to justice

The International Center for the Prosecution of the Crime of Aggression against Ukraine (ICPA) started working in The Hague on July 3, 2023. Representatives of five countries will work together with Ukrainian prosecutors.

Russia’s armed aggression against Ukraine is one of the most brusque violations of Article 2(4) of the UN Charter since its entry into force. It can be stated that this armed aggression began as early as February 20, 2014, when the first cases of the crossing of the Ukrainian state border by the armed forces of the Russian Federation without identification marks and the use of military formations stationed in Crimea to block Ukrainian military units were recorded. The full-scale invasion on February 24, 2022, was a new stage of armed aggression when the Russian Federation had already openly used its armed forces and other paramilitary forces. The international community recognized the aggression of the Russian Federation against Ukraine as illegal and condemned it at the level of UN General Assembly Resolution ES-11/1 ‘Aggression against Ukraine’; PACE resolutions 2433 (2022) ‘Consequences of the Russian Federation’s continued aggression against Ukraine: the role and response of the Council of Europe’ and 2436 (2022) ‘The Russian Federation’s aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes’; Declarations of the NATO Parliamentary Assembly in support of Ukraine; Resolutions of the OSCE Parliamentary Assembly regarding the aggressive war of the Russian Federation against Ukraine and its people and the threat to security in the entire OSCE region; Resolutions of the European Parliament ‘Russian aggression against Ukraine’ and many other international organizations.

Article 2(4) of the UN Charter obliges states to refrain “in their international relations from the threat or use of force as against the territorial integrity or political independence of any state…”. This article and the provisions of Resolution 3314 of the UN General Assembly on the ‘Definition of Aggression’ are embodied in Article 8 bis of the Rome Statute of the International Criminal Court (Rome Statute).

According to Article 8 bis of the Rome Statute, the crime of aggression is defined as the planning, preparation, initiation, or commission by a person who is capable of effectively controlling or directing the political or military actions of the state, of an act of aggression, which by its nature, severity, and scale is a gross violation of the UN Charter.

An act of aggression is understood as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state or in any other way incompatible with the UN Charter.

Since the full-scale invasion, the Russian Federation has committed every act of aggression provided for by the Rome Statute, including:

1. a) invasion or attack by the armed forces of a State on the territory of another State or any military occupation, regardless of its temporary nature, resulting from such invasion or attack, or any annexation by force of the territory of another State or part thereof. Thus, on February 24, 2022, Russian troops invaded Ukraine by land, air, and sea to conduct a “special military operation”. On the first day of the operation, Russian troops crossed the northern border of Ukraine from the side of Belarus in the direction of the capital of Ukraine, Kyiv. They captured the Chornobyl exclusion zone. They crossed the northeastern border of Ukraine, moving towards the country’s second-largest city – Russian troops also moved south from the Crimea towards the city of Kherson;

​b) bombing of the territory of another state by the armed forces of a State or the use of any weapon by a State against the territory of another State. On February 24, 2022, approximately 100 Russian cruise, ballistic, and sea-launched missiles hit military targets in Ukraine to carry out Putin’s “special military operation.” Russian aircraft struck cities, airports, and military facilities throughout Ukraine. On October 10, 2022, Russian forces launched the first massive missile attack on Ukraine’s energy infrastructure. The bombing and rocket attacks on the civilian population and civilian objects have not stopped and are systematic;

1. c) blockade of ports or coasts of a State by the armed forces of another S According to the intelligence of the British Ministry of Defense, on March 13, 2022, the Russian naval forces established a blockade of the Black Sea coast of Ukraine, which effectively isolated Ukraine from international maritime trade;
2. d) an attack by the armed forces of a State on the land, sea, or air forces, or sea and air fleets of another S On February 24, 2022, Russian ballistic, cruise, and sea-launched missiles struck a wide range of Ukrainian military and air defense facilities. On February 28, 2022, Secretary-General António Guterres stated that hostilities in Ukraine: “are raging throughout the country, from the air, land, and sea… Russian missile and aerial bombardments are shelling Ukrainian cities day and night”;
3. e) the use of the armed forces of one State, located in the territory of another state under an agreement with the receiving State, in violation of the conditions stipulated in the agreement, or any continuation of their stay in such territory after the termination of the agreement. The Russian Federation used armed units that, according to the agreement on the status and conditions of the Black Sea Fleet’s stay on the territory of Ukraine, were stationed on the territory of the Crimean Peninsula for its occupation;
4. f) the action of a State that allows its territory, which it has placed at the disposal of another State, to be used by that other State to commit an act of aggression against a third S As of February 24, Belarusian airfields, air defense equipment, air traffic control systems, military, and part of civil logistics were actually handed over to Russia. All this infrastructure was used for strikes and direct invasion of the sovereign territory of Ukraine;
5. g) the sending by the State or on behalf of the State of armed gangs, groups, and irregular forces or mercenaries who use armed force against another State, which are of such a serious nature that it is equivalent to the acts listed above or its substantial participation in them. Russia has sent armed units, groups, irregular troops, or mercenaries to carry out armed actions against Ukraine. In particular, it is reported that the Wagner group, a private military company that was associated with Yevgeny Prigozhin, is active in Ukraine.

“Waging an aggressive war … is the highest international crime, which differs from other war crimes in that it contains a common accumulated evil”, stated the judgment of the Nuremberg Tribunal.

This is exactly what Volodymyr Zelensky emphasized in his speech in front of the representatives of the public, political, and expert circles of the Kingdom of the Netherlands, and international institutions located in The Hague: “One Russian crime led to all these. This is a crime of aggression. The beginning of evil. Original crime. There must be responsibility for this crime!” The very beginning of the aggression is the “original sin” that opened the door to thousands of atrocities committed by the Russians, which is the basis for the assertion that war crimes, crimes against humanity, and in some cases even the commission of genocide are systemic.

In order to be prosecuted for the crime of aggression, the following elements must be established: the subject of the crime planned, prepared, initiated or committed an act of aggression; the subject of the crime was a person who could control or direct the political or military actions of the state that committed the act of aggression; an act of aggression – the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other way contrary to the UN Charter, was committed; the subject of the crime was aware of factual circumstances that indicated that such use of armed force was contrary to the UN Charter; the act of aggression – by its nature, seriousness and scale – was a gross violation of the UN Charter; the subject of the crime was aware of the factual circumstances that indicated such a gross violation of the UN Charter.

At the same time, recognizing Hitler as responsible for the aggression in the Second World War, the International Military Tribunal concluded that “Hitler could not independently conduct an aggressive war. He had to cooperate with statesmen, military leadership, diplomats, and businessmen. When they, knowing his goals, cooperated with him, they became participants in the plan he initiated… The fact that they received tasks from a dictator does not relieve them of responsibility for their actions.”

Moreover, the tribunal in the IG Farben case determined that criminal liability for aggression could apply to “persons in the political, military and industrial spheres… who are responsible for the formulation and implementation of policy”.

There is also the possibility of bringing high-ranking Russian officials to justice. In particular, those who actually participated in the planning and preparation of aggression against Ukraine, in particular during the meeting of the Security Council of Russia on the eve of February 24, 2022. In addition, it can at least be assumed that those leading the Wagner group could meet these requirements, since they sent their mercenaries to Ukraine on behalf of Russia, which is a specifically defined act of aggression (Article 8 bis (g)).

The work of the newly created International Center for Prosecution for the Crime of Aggression against Ukraine will contribute to bringing Russia’s military and political leadership to justice, which is possible within the framework of the International Criminal Court or a special international tribunal.

For reference

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union (helsinki.org.ua).

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