Australia has rightly spoken out in condemnation of the allegations of war crimes and crimes against humanity in Ukraine, and has taken some tangible steps in support of Ukraine and its population including the supply of arms, and the possibility of humanitarian visas for Ukrainian refugees. There are, however, further steps Australia can take to provide a robust and meaningful response to these crimes: legislate the crime of aggression; assist in the creation of briefs of evidence; and, if appropriate, prosecute atrocity crimes domestically relying on universal jurisdiction.
Atrocity crimes in Ukraine: What can Australia do?
The massacre of civilians in the town of Bucha, the rape and torture of civilians, and targeting of hospitals, civilian refuges and humanitarian corridors are just some of the reports emerging from Ukraine towns, allegedly committed by Russian military forces. These are allegations of atrocity crimes, most notably war crimes, as well as the crime of aggression in relation to the unlawful nature of the invasion itself. Although neither Russia nor Ukraine are a State Party to the International Criminal Court (ICC), the ICC has jurisdiction to prosecute these crimes, with the exception of the crime of aggression.
Ukraine voluntarily accepted ICC jurisdiction for offences committed on its territory since April 2014, when Russia annexed Crimea. However, the absence of Russia’s consent to jurisdiction, and its ability to block the United Nations (UN) Security Council mechanism to refer a prosecution for aggression creates an accountability gap in prosecuting Russia’s Head of State, Vladimir Putin. While there have been calls to create a special tribunal to close this accountability gap, technical and political challenges may prevent this proposal from progressing.
The international community continues to condemn the actions in Ukraine; many have called for Putin to be held accountable. The ICC and Ukraine have commenced investigations; and investigative teams have been sent separately by the UN Human Rights Council, and the Organisation for Security in Europe (of which Russia is a member) utilising the ironically titled ‘Moscow Mechanism’.
Given these actions, what part can Australia play in ensuring these egregious acts do not go unpunished?
First, it can take steps to legislate the crime of aggression; second, it can collate a criminal prosecution brief to either aid ICC or Ukrainian prosecutions – or even provide it to Russia to give the State an opportunity to prosecute their soldiers; and finally, in the absence of other prosecutions, seek to prosecute the crimes in Australia under the principle of universal jurisdiction.
Legislating the crime of aggression
The crime of aggression constitutes the fourth international ‘core’ crime, alongside genocide, war crimes, and crimes against humanity, over which the ICC has jurisdiction. Under Article 8 bis (1) Rome Statute, the crime of aggression entails ‘the planning, preparation, initiation or execution…of an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN’, by a person in a position of power. It criminalises the acquisition of sovereign territory by force. With the activation of the ICC’s jurisdiction over aggression on 14 December 2017, the ICC can hold leaders individually criminally responsible for waging aggressive war for the first time since the Nuremburg and Tokyo trials.
While near-universal consensus exists that Putin’s ‘special military operation’ constitutes an act of aggression, the ICC is unable to exercise jurisdiction over this crime in this instance. However, third States could also ensure accountability. State parties to the Rome Statute are obligated to criminalise the core crimes in their national legislation. To date, only 43 States – of which Australia is not one – have ratified the 2010 Amendments on the crime of aggression to the Rome Statute, also called the Kampala Amendments, which defined the crime of aggression. Even less have criminalised the crime domestically.
There are no readily identifiable public statements that offer explanation as to why Australia has not taken steps to ratify the Kampala Amendments, nor to implement the offence of aggression domestically. This position is surely worthy of review in light of recent world events? To criminalise aggression domestically, Australia ought to ratify the Kampala Amendments and enact criminal legislation providing for the punishment of perpetrators of the crime.
Prosecution of atrocity crimes in Australia using universal jurisdiction
States including Sweden have indicated that they are commencing domestic criminal investigations into the alleged atrocity crimes being committed by Russian troops in Ukraine. The doctrine of universal jurisdiction enables such domestic criminal investigations, where States have enacted relevant domestic legislation. Division 268 of the Commonwealth Criminal Code ratifies most of the offences found under the Rome Statute and enables prosecution in Australia under the concept of ‘extended territorial jurisdiction’ (section 268.11). This technically allows for the prosecution of persons with no jurisdictional nexus to Australia, meaning the offending could be outside Australia, committed by a non-Australian citizen, and not impact an Australian citizen or property.
Practically speaking, however, the prosecution will not occur unless Australia has physical custody of the alleged perpetrator, as Australia does not allow for in absentia trials (in recognition of the right to a fair trial under the International Covenant on Civil and Political Rights). Access to witnesses and evidence is also likely an obstacle to commencing criminal proceedings domestically. Absent political will, it is also unlikely that the Commonwealth Attorney-General will consent to the prosecutions, as is required for any Division 268 prosecutions to commence.
Australia has not yet successfully prosecuted anyone under Division 268. It is also unlikely that rank-and-file Russian soldiers would be prosecuted for atrocity crimes in Australian courts for numerous practical and pragmatic reasons, noting also that Australia may only conduct Division 268 prosecutions where no other genuine prosecutions are conducted elsewhere. Given the current work load of our Courts, such actions would unlikely proceed on an economy of effort basis as well.
Collection of evidence
However, investigations at the domestic level will not – and should not be – the principle avenue for achieving justice. Several States including Australia are resourcing investigations on the ground conducted by the Ukrainian prosecutor’s office, the OSCE, the UNHCR and the ICC. The provision of investigators as well as funding is a meaningful way to enhance the ability to ensure accountability for these crimes, but it is by no means a swift or comprehensive form of justice. Access to and preservation of evidence, access to the alleged perpetrators (and access to information to aid in identifying perpetrators) is extremely difficult in armed conflict, and even more so when the State responsible for offences is unlikely to cooperate with investigations. Reports of extra-judicial killings by Russian commanders of their subordinates alleged to have committed war crimes in Ukraine, and the consistent denials by Russia of reports of criminal conduct by their forces, suggest that there will be little to no cooperation by Russia in the pursuit of accountability.
In addition to existing international criminal law mechanisms, the crowd-sourcing of investigations by States supporting the preparation of criminal prosecution briefs and, as a fall-back option, domestic prosecutions should remain available. If the ICC fails to act, or the special tribunal never materialises, then Australia could take action.
Should Australia prosecute Putin using universal jurisdiction
Given the ICC has only recently opened its prosecution against the Sudanese militia leader, Ali Muhammed Ali Abd-Al-Rahman in respect of war crimes and crimes against humanity allegedly committed in 2003 and 2004, the wheel to bring individuals to account under the international criminal mechanism turns slowly. The lead time to bring a prosecution for atrocity crimes is long, and there are additional jurisdictional challenges with prosecuting a sitting head of State. Jurisdictional challenges exist in prosecuting sitting Heads of State (as Putin is), who enjoy immunity ratione personae for all acts performed, while in office, which remains in effect before foreign States’ domestic courts – even for atrocity crimes – where the official’s State has not waived it.
However, despite these challenges, Australia can, and should, show leadership. By at least legislating for the offence, should Putin ever visit Australia – or a State with which Australia holds a relevant extradition treaty – the ability exists to prosecute him under the doctrine of universal jurisdiction (as codified in Division 268 of the Criminal Code). This action sends a clear message that the act of aggression and its consequences cannot be forgotten for future political convenience; while not compromising potential action by any special international tribunal established to handle the situation.
Criticisms or weariness of the use of universal jurisdiction align to its challenges, and to claims of judicial vigilantism mired in political, rather than altruistic aims. While it is true that international criminal law is infected by issues related to political will and convenience, in this case, such action could be used complimentary to the sanctions and other diplomatic pressures undertaken by Australia already. The deterrent effect of such action is more powerful than mere words.
While there are steps that can and should be taken by Australia in response to Russia’s unlawful invasion of Ukraine, reinforcing international criminal justice and accountability measures is critical to preventing impunity and discouraging further atrocity crimes being committed in this conflict, and in future conflicts. Australia can demonstrate its commitment to this cause by ratifying the Kampala Amendments, domestically legislating the crime of aggression and creating a prosecution brief in respect of Putin’s flagrant disregard for the international rules-based order.
Yvonne Breitwieser-Faria is a PhD Candidate at the T.C. Beirne School of Law in affiliation with the Asia-Pacific Centre for the Responsibility to Protect, The University of Queensland. Her research focuses on atrocity law.
Dr Lauren Sanders is a senior research fellow at the University of Queensland’s Law and the Future of War at the University of Queensland, whose doctoral thesis was on enforcement mechanisms relevant to universal jurisdiction.