International Criminal Court, international law, Rome Statute, war crimes, crime against humanity, genocide, immunity, ukraine, russia
Since the occupation of Crimea in February 2014, the Russian Federation has been violating the prohibition on the use of force under international law in Article 2(4) of the UN Charter with respect to Ukraine. Moreover, it was already an armed attack within the meaning of Article 51 of the Charter at the time, which triggered Ukraine's right to individual and collective self-defense. At the same time, the occupation of Crimea marked the beginning of an international armed conflict between the two states. The large-scale Russian invasion, which has been underway since 24 February 2022, represents a drastic escalation of the armed conflict, and the violation of the prohibition on the use of force and the armed attack are continuing, now with the participation of Belarus.
[...] b of the Statute) and obliges all States to cooperate with the Court. Furthermore, personal immunity does not generally apply in the context of the prosecution of crimes under international law by international courts. One of the reasons for distinguishing between national and international courts in the context of immunity issues is that the principle of state immunity derives from the equality of sovereign states. The sovereign equality of states therefore does not preclude the prosecution of a sitting head of state before an international criminal court. [...]
[...] Prosecution by the International Criminal Court The International Criminal Court in The Hague was established by the 1998 Rome Statute. Its mission is to punish the most serious crimes "affecting the international community as a whole". Its jurisdiction extends to the crime of genocide, crimes against humanity and war crimes as well as the crime of aggression. These are the so-called core crimes, which are directly punishable under international law. The Rome Statute expressly states that the International Criminal Court complements national jurisdiction (principle of complementarity). [...]
[...] In summary The prosecutor of the International Criminal Court is already investigating the situation in Ukraine. However, the Court's jurisdiction in this case extends only to war crimes, crimes against humanity and genocide, not to the crime of aggression. In view of the emerging shift in jurisprudence, it is no longer certain that the Russian president, his head of government and his foreign minister are protected from the International Criminal Court while they are in office, due to their personal immunity. [...]
[...] A resolution to this effect could nevertheless be put to a vote in the Security Council. Immunity issues before the International Criminal Court In the context of prosecutions before international courts, the legal situation regarding the personal immunity of heads of state and government and foreign ministers is less clear than before national criminal courts. At least some international courts have issued decisions that relax the immunity of such persons insofar as the commission of crimes under international law is concerned. [...]
[...] However, Ukraine first recognised the jurisdiction of the International Criminal Court in April 2014, in accordance with Article 12(3) of the Statute. This was to apply to acts committed on Ukrainian territory between 21 November 2013 and 22 February 2014. In September 2015, Ukraine made a second declaration by which it also recognised the Court's jurisdiction over crimes against humanity and war crimes committed on its territory since 20 February 2014. This decision was motivated by the occupation of Crimea and the armed conflict in eastern Ukraine. [...]
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