The powers of the prosecutor of the special tribunal for the crime of aggression against Ukraine

Summary Since the establishment of the International Criminal Court (ICC) almost two decades ago, the crime of aggression has not been tested. The Russian invasion of Ukraine seems to provide a fitting opportunity. However, the ICC lacks jurisdiction over the crime of aggression in the current Russian/Ukrainian war. Nevertheless, 24 February 2022 marked the beginning of a renewed attack, as Ukraine witnessed unimaginable proportions of human rights violations, deaths, sufferings, and displacements due to the Russian invasion. While it is incontrovertible that the crime of aggression has been committed by President Vladimir Putin of Russia against Ukraine, and the ICC has begun the investigation of crimes against humanity and war crimes, jurisdictional questions looms. The ICC is empowered to investigate, prosecute, and punish individuals for international crimes, close impunity gaps, and ensure accountability for the ongoing heinous crimes being committed in Ukraine. How can justice be served specifically to Ukrainian victims and generally to the international community for the atrocities being committed and for the crime of aggression? Since the ICC lacks jurisdiction, would the setting up of a special tribunal or hybrid court be better to deal with the situation? How would such special tribunal deal with the issues of immunity and the practicality of investigations and prosecution? This paper discusses these questions and argues that beyond the referrals to the ICC made by over forty states, it may be imperative for the referring states to utilise the universal jurisdiction principle to investigate and prosecute the crime of aggression.

Contents: Part I: The Crime of Aggression from Nuremberg to the Rome Statute: The historical background, Umberto Leanza Origins of the criminalization of aggression: how crimes against peace became the 'Supreme International Crime', William A. Schabas Will aggressors ever be tried before the ICC?, Muhammad Aziz Shukri The debate within the preparatory commission for the International Criminal Court, Mauro Politi. Part II: The International Criminal Court and the Crime of Aggression: Questions of Definition and Jurisdiction: The definition of the crime of aggression and the ICC jurisdiction over that crime, Mohammed M. Gomaa Aggression and the ICC: views on certain ideas and their potential for a solution, Phani Dascalopoulou-Livada Defining the crime of aggression or redefining aggression?, Ioana Gabriela Stancu Definition of the crime of aggression: state responsibility or individual criminal responsibility?, Elizabeth Wilmshurst The crime of aggression: definitional options for the way forward, Hans-Peter Kaul The exercise of the International Criminal Court's jurisdiction over the crime of aggression: short term and long term prospects, Antonio YA!A+-ez-Barnuevo. Part III: The Crime of Aggression and the Relationship between the International Criminal Court and the Security Council: The respective roles of the ICC and the Security Council in determining the existence of an aggression, Giorgio Gaja Reflections on the role of the Security Council in determining an act of aggression, Saeid Mirzaee Yengejeh The ICC and the Security Council on aggression: overlapping competencies?, Paula Escarameia The ICC and the Security Council: about the argument of politicization, Marja Lehto Conclusions generales, Luigi Condorelli. Part IV: Afterword: The International Criminal Court and the Crime of Aggression: From the Preparatory Commission to the Assembly of States Parties and Beyond: An outsider's view, Giuseppe Nesi An insider's view, Silvia A. FernA!ndez de Gurmendi Index.

"The Audacity of Compromise: The UN Security Council and the Pre-conditions to the Exercise of Jurisdiction by the ICC with Regard to the Crime of Aggression" published on 01 Jan 2009 by Brill | Nijhoff.

The Review Conference of the Rome Statute of the International Criminal Court in Kampala adopted amendments to the Rome Statute, providing for a definition and conditions for the jurisdiction of the crime of aggression (‘Kampala Amendments’). At present, the jurisdiction over crime of aggression has not come into effect at the International Criminal Court (ICC). For the activation of the Court’s jurisdiction over the crime of aggression, two cumulative conditions must be met: first, a minimum of 30 ratifications of the Kampala Amendments must take place; second, a majority of two thirds of States Parties have to make a decision to activate the Court’s jurisdiction after 1 January 2017. This paper analyses salient legal aspects of the activation of the Court’s jurisdiction over the crime of aggression. First, the question whether the requirements of 30 ratifications will be met will be considered. Second, the relationship of the entry into force mechanism of the amendments and the conditions for the exercise of jurisdiction will be analysed. Third, the procedure of ascertainment of the jurisdictional regime of the ICC over the crime of aggression, with particular reference to State referrals and proprio motu investigations, will be dealt with. Fourth, the need for States Parties intending to ratify the Kampala Amendments to implement the crime of aggression into their domestic legislation will be explored. Finally, the paper will explore the question whether the aggressor State (party) must ratify the Kampala Amendments in order for the jurisdictional regime over the crime of aggression to apply, or whether it suffices that the aggressed State is a ratifying State Party. A qualified solution will be suggested: while the latter reading of the law is the better one, consent of the aggressor State (party) is nevertheless upheld pursuant to the sui generis jurisdictional regime of the ICC over the crime of aggression.

The crime of aggression, or crime against peace, has been famously labeled as the “supreme international crime” by Robert H. Jackson, the Chief American Prosecutor at the Nuremberg trials. Of the twenty-two former Nazi leaders tried in Nuremberg, twelve were convicted for crimes against peace. The International Military Tribunal for the Far East (the “Tokyo Tribunal”) had an even stronger focus on aggression. It prosecuted only those military and political leaders whose crimes included aggression. Twenty-four of them were convicted of this crime.

The Committee of Ministers of the Council of Europe endorsed the establishment of a Special Tribunal for the crime of aggression against Ukraine at a meeting held in Luxembourg on May 14, 2025. In accordance with the decision of Comittee of Ministers the Special Tribunal is to be established within the framework of the Council of Europe, in accordance with an international agreement between the Council of Europe and Ukraine, the Statute of the Tribunal, and an Extended Partial Agreement governing the modalities of support models to such a Tribunal, its financing, and other administrative aspects. The Special Tribunal will have the mandate to prosecute high military and political leaders for the crime of aggression against Ukraine. The international crime of aggression refers to the decision to use armed forces against another state, in violation of the UN Charter. The need to establish a Special Tribunal for the crime of aggression is justified by the fact that the International Criminal Court does not have jurisdiction to prosecute such an international crime. The Special Tribunal was formally established on June 25, 2025, by an international agreement between Ukraine and the Council of Europe. An integral part of this agreement is the Statute of the Special Tribunal, which is contained in a separate annex. Considering that the Special Tribunal is being established within the Council of Europe, the question arises regarding the relationship of that tribunal with International Criminal Court and the member states of the Council of Europe. Will the member states of the Council of Europe, including Serbia, participate in the work of the Special Tribunal and will they have obligations to cooperate with that tribunal, and what will those obligations pertain to? These are just some of the questions that the author will address in this paper in an attempt to determine the international legal implications of the establishment of the Special Tribunal for the crime of aggression within the framework Council of Europe.

The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court

The article analyzes the reasons for the creation of the Special Tribunal for the Crime of Aggression against Ukraine, comparing the jurisdiction of the International Criminal Court and Ukraine’s interests in punishing the Russian Federation and its leaders. For the purposes of our research the methods of textual analysis, comparison, data synthesis, formal-legal method and forecasting method were used. Ukraine is trying to make the maximum use of the possibilities of international law and international organizations to punish the Russian Federation for committing the crimes against international law and humanity. It is established that the jurisdictional and procedural capabilities of the International Criminal Court only partially satisfy the needs of Ukraine. Ukraine has not ratified the Rome Statute - the main document of the International Criminal Court; and cannot ratify it during the declared martial law. Similarly, the Russian Federation itself and some allies of Ukraine are not parties to the Rome Statute. Therefore, to resolve these gaps, there is a need to create an ad hoc Special tribunal for the crime of aggression against Ukraine. At the moment, the creation of the Special Tribunal is supported not only by the Verkhovna Rada of Ukraine, but also by the numerous international organizations and the parliaments of the different states: the UN, the Parliamentary Assembly of the Council of Europe, the Parliamentary Assembly of the NATO countries, OSCE, political, legal and social influencers, etc. The statute of the Special tribunal will be able to close the existing jurisdictional loopholes of the International Criminal Court, in particular in matters of determining the subjects of the crime, compensation for damage, and others. Based on the existing preliminary statements of the participants of the initiative group, socio-political influencers, experts and scientists, conclusion can be made that the Special tribunal will be organized through the UN General Assembly, the text of its charter will be addressing the issue of compensation payments to Ukraine and its allies from the seized assets of the state companies and the sanctioned legal and natural persons of the Russian Federation. The prospects of the collective responsibility and the prospects of convicting individuals in absentia will also be important issues. Key words: Special tribunal for the crime of aggression against Ukraine, International Criminal Court, crime of aggression, war crimes.

Until the entry into force of the Rome Statute, the definition of the crime of aggression was not also found in it. This leaves the International Criminal Court (ICC) without jurisdiction over crimes of aggression. The absence of ICC jurisdiction over crimes of aggression has resulted in military aggression that has not been processed by the ICC during the time when the proxy war / cold war was initiated. This means that the violation of delicto jus gentium juice is allowed even after the ICC has been established. This study aims: (1) to identify and identify the definition, limitations, and jurisdiction of the ICC for crimes of aggression; and (2) to determine the enforcement of ICC jurisdiction over crimes of aggression after the Kampala Amendments were adopted into the Rome Statute. The research method uses a type of normative research with a statutory approach and a historical approach. The results show that the ICC's definition, limitations, and jurisdiction over the crime of aggression have existed in the Rome Statute since Kampala Amendments were adopted into the Rome Statute. However, until now the enforcement of the ICC's jurisdiction over crimes of aggression has not been carried out concretely.

The crime of aggression, or crime against peace, was first introduced in the constituent instrument establishing the Nuremberg International Military Tribunal (IMT) (the London Charter, 1945) at the end of World War II. It was also included in the Charter of the Tokyo International Military Tribunal for the Far East (IMTFE) and Control Council Law No. 10, 1945. The criminalization of aggression in these instruments constitutes the culmination of a process that started at the end of World War I, with the arraignment of the German emperor Wilhelm II, by virtue of Article 227 of the Peace Treaty of Versailles, “for a supreme offence against international morality and the sanctity of treaties.” The prosecution of the crime of aggression before the Nuremberg and Tokyo IMTs met with strong criticism concerning the breach of the principle of legality (nullum crimen sine lege). However, the United Nations (UN) General Assembly, in G.A. Res. 95(I) (UN General Assembly 1946, cited under General Assembly Resolutions), and the International Law Commission (ILC), in the “Formulation of the Nürnberg Principles” (Yearbook of the International Law Commission 2 1950), endorsed the existence of the crime of aggression in customary law, with no opposition on the part of states. Hence, in the early 21st century it is universally accepted that the crime of aggression exists in customary law, although its precise definition, for the purposes of individual criminal responsibility, has been a matter of contention. No prosecutions for aggression followed the Nuremberg and Tokyo trials, and this crime remained in a state of lethargy until the establishment of the International Criminal Court (ICC) in 1998. Article 5, ICC Statute, includes aggression among the crimes within the Court’s jurisdiction. At the same time, Article 5(2) stipulates that the jurisdiction of the Court would not be exercised for aggression until a generally accepted definition of the crime was adopted. This definition was ultimately agreed upon at the first Review Conference of the ICC Statute, in Uganda (Kampala Conference), in June 2010 (new Article 8bis). The crime of aggression is closely connected with the resort to force by a state, unlike war crimes, genocide, and crimes against humanity, in which individual criminal responsibility is independent of the existence of state responsibility. Moreover, perpetrators of aggression, unlike the other three crimes, are exclusively state officials, particularly in the highest echelons of the state. The adoption of a definition of the crime of aggression in the ICC Statute is a major breakthrough that may clear the way for prosecutions of crimes against peace in the future, especially after the activation of the ICC jurisdiction over the crime of aggression in July 2018.

الحماية الخاصة لحقوق الإنسان | الأطفال الضحايا | جريمة العدوان | القانون الدولي الجنائي | المحكمة الجنائية الدولية | المسؤولية الدولية الجنائية | Special Protection of Human Rights | Child Victims | Crime of Aggression | International Criminal Law | International Criminal Court | International Criminal Responsibility

This chapter focuses on the International Criminal Court’s jurisdiction over the crime of aggression. The discussion provides background to the crime of aggression and the resulting criminal accountability of the guilty party, paying particular attention to UN General Assembly’s adoption in 1974 of a resolution addressing aggression by states rather than the crimes of individuals and is designed as guidance for the Security Council when considering whether an act is one of ‘aggression’. The chapter examines the amendments to the ICC Rome Statute defining ‘act of aggression’ and ‘crime of aggression’ adopted at the ICC Review Conference in Kampala, Uganda, in 2010. It also discusses the uncertainties and ambiguities in the process for activating ICC jurisdiction over the crime of aggression. It considers the possible institutional effects of such jurisdiction on the UN Security Council and the ICC itself, as well as its long-term consequences for the jus ad bellum.

By activating the Kampala Amendments to the Rome Statute, for the first time since the Nuremberg and Tokyo trials after the Second World War, the International Criminal Court (ICC) has jurisdiction over crime of aggression. This is one giant leap for mankind; nevertheless, the international community will likely have to wait a long time to witness a criminal procedure before the ICC initiated for the crime of aggression. This is because it is not the complete disappearance of the breaching of the rules of jus contra bellum, but the complex and almost inapplicable set of rules on the crime of aggression. To see these obstacles clearly, this article seeks to provide a concise analysis of the definition of the crime of aggression (“substantial aspects”) and the exercise of jurisdiction over the crime of aggression (“procedural aspects”) in accordance with the respective provisions of the Rome Statute.

In 1946, the judges at the International Military Tribunal at Nuremberg declared 'crimes against peace' - the planning, initiation or waging of aggressive wars - to be 'the supreme international crime'. At the time, the prosecuting powers heralded the charge as being a legal milestone, but it later proved to be an anomaly arising from the unique circumstances of the post-war period. This study traces the idea of criminalising aggression, from its origins after the First World War, through its high-water mark at the post-war tribunals at Nuremberg and Tokyo, to its abandonment during the Cold War. Today, a similar charge - the 'crime of aggression' - is being mooted at the International Criminal Court, so the ideas and debates that shaped the original charge of 'crimes against peace' assume new significance and offer valuable insights to lawyers, policy-makers and scholars engaged in international law and international relations.

The crime of aggression is a crime under customary international law. At the same time it is listed as one of the most serious crimes of concern to the international community as a whole in an international treaty, the Rome Statute of the International Criminal Court (ICC). This chapter analyses national definitions of the international crime of aggression in the light of the current state of the negotiations to codify this crime for adjudication before the ICC. It presents an examples of national legislation, and provides an overview of the main features and identify convergent and deviating elements. The chapter examines under what circumstances states establish jurisdiction to adjudicate and actually empower domestic courts to enforce the crime of aggression. Finally, it concludes by assessing the findings of the comparative study and analysing the interrelationship between international and domestic definitions of the crime of aggression. Keywords: crime of aggression; customary international law; International Criminal Court (ICC); jurisdiction; Rome Statute