International mechanisms of accountability for the crime of aggression

Abstract

The article examines the effectiveness of conte­mporary international legal mechanisms for ensuring criminal accountability for the crime of aggression and the prospects for their further development. The relevance of the study stems from the discrepancy, revealed by the full-scale aggression of the russian federation against Ukraine, between the universal nature of the international legal prohibition of aggression and the limited capacity of international criminal justice to hold accountable those who make and implement decisions on the aggressive use of armed force. The study is based on the hypothesis that the insufficient effectiveness of accountability mechanisms for the crime of aggression results not from the absence of an international legal prohi­bition of aggression, but from the gap between its normative recognition and the institutional and jurisdictional capacity to enforce it. The hypothesis was tested through an analysis of the Charter of the United Nations, the Rome Statute of the Interna­tional Criminal Court, the Kampala Amendments, acts of the Assembly of States Parties to the Rome Statute, the Agreement between Ukraine and the Council of Europe on the Establishment of the Special Tribunal for the Crime of Aggression against Ukraine and its Statute, as well as through a comparison of the jurisdictional capacities of the ICC and the Special Tribunal. It is established that the principal problem of the current model lies not in the sub­stantive legal definition of the crime of aggression, but in the limited capacity of international institutions to ensure the practical implementation of individual criminal responsibility. The study substa­ntiates the existence of an asymmetry between the universality of the prohibition of aggression and the absence of corresponding universality of interna­tional criminal jurisdiction, resulting, inter alia, from the specific jurisdictional regime established by Articles 15 bis and 15 ter of the Rome Statute. The article examines the legal nature, jurisdiction and institutional potential of the Special Tribunal for the Crime of Aggression against Ukraine, its relation­ship with the ICC and Ukraineʼs national jurisdiction, the issue of immunities of senior state officials, the possibility of proceedings in absentia, and the impor­tance of international cooperation. It is proposed that the Special Tribunal be regarded as a specia­lised compensatory mechanism capable of addres­sing the specific jurisdictional gap of the ICC, but not of eliminating the systemic shortcomings of the existing model of accountability for aggression. The study substantiates the expediency of developing international criminal accountability through a model combining a permanent international mechanism with special compensatory mechanisms. Reform of the ICCʼs jurisdictional regime over the crime of aggres­sion and its gradual approximation to the regime applicable to the other core crimes under the Rome Statute are identified as strategic priorities. The decisive criterion for the effectiveness of such a mechanism should be its actual capacity to ensure the inevitability of criminal prosecution of persons responsible for aggression, irrespective of the interna­tional legal status of the aggressor state or its political influence.