The Russian invasion of Ukraine: navigating aggression’s fragmented justice landscape

In the early morning hours of 24 February 2022, Russia invaded Ukraine. Leaders from around the world have condemned this as an illegal act of aggression. The following day, Karim Khan, the Prosecutor of the International Criminal Court issued a statement that he has been “closely following recent developments in and around Ukraine with increasing concern.” As many know, in 2017, the ICC activated its jurisdiction over the crime of aggression. So perhaps it is worth asking, in light of this apparent act of aggression and the ICC Prosecutor’s warning, whether aggression charges could be brought against Russian president Vladimir Putin and his leadership coterie, in reference to the invasion of Ukraine. As we will explain, notwithstanding an existing Ukrainian self-referral of jurisdiction to the ICC in respect of war crimes and crimes against humanity in reference to an earlier Russian incursion, as well as the opening of an investigation, the recent invasion will not allow the ICC to expand its case to include potential charges of aggression. Nevertheless, might an aggression case against Putin and his associates be brought via universal jurisdiction in a domestic court or via the jurisdiction of a specially created ad hoc international criminal tribunal? Those questions are grappled with below as well.