Russian responsibility for violation of international humanitarian law in Ukraine

The crime of aggression is recognized as a part of customary international law and has been codified by Article 8bis of the Rome Statute of the International Criminal Court. It prohibits the use of armed force by a state against the sovereignty, territorial integrity, or independence of another state.

There is a close connection between the crime of aggression and state responsibility for acts of aggression which is often seen as a prerequisite for crimes of aggression. The crime of aggression creates not only state responsibility for aggression but also provides for individual responsibility. The United Nations Charter prohibits aggression in Article 2(4). All member states must “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” This is considered a fundamental principle of international law and applies to all United Nations members.

Article 8bis of the Rome Statue of the ICC which was adopted at the 2010 Review Conference in Kampala, sets out the definition of the crime of aggression under the ICC. 

Article 8 bis Crime of aggression

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

There are three elements of the crime of aggression under the Rome statue. First, the accused must be a political or military leader, a person “in a position effectively to exercise control over or direct the political or military action of a State.” Secondly, the Court must prove that the accused was involved in the “planning, preparation, initiation or execution of such a State act of aggression. Lastly, the act must amount to an act of aggression consistent with General Assembly Resolution 3314 and by its character, gravity and scale, “constitute a manifest violation of the UN Charter.” Cases of lawful individual or collective self-defense as well as any action authorized by the UN Security Council are excluded.

The International Court of Justice (ICJ has held that the prohibition of the use of force as contained in the UN Charter is a norm of customary international law.  It is also accepted that this rule has reached the status of jus cogens. In addition, it is generally accepted that the crime of aggression constitutes a crime under customary international law. The recognition is based in part on what used to be known as the crime against peace and builds upon the Nuremberg and Tokyo war crimes trials following the Second World War. United Nations General Assembly Resolution 3314 is widely accepted as reflecting customary international law regarding what constitutes an act of aggression between states. 

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