Russia, Ukraine, and the ICC

The ICC and Ukraine

Ukraine was not a party to the Rome Statute when the situation began, but it accepted the Court's jurisdiction through two Article 12(3) declarations: the first covering the Maidan events from late 2013, and the second, lodged in 2015, extending jurisdiction to crimes committed on Ukrainian territory from 20 February 2014 onward with no end date. That standing consent meant the Court already had a jurisdictional footing when Russia launched its full-scale invasion in February 2022. In an unprecedented move, an initial group of states parties, growing to more than 40, referred the situation to the Prosecutor within weeks, allowing Karim Khan to open an investigation on 2 March 2022 without first seeking separate judicial authorization. It became the fastest-moving situation in the Court's history. (Ukraine subsequently ratified the Rome Statute in full in 2024, becoming a state party from 1 January 2025.)

The ICC issued its first warrants in the situation on 17 March 2023, targeting President Vladimir Putin and Presidential Commissioner for Children's Rights Maria Lvova-Belova for the war crime of unlawful deportation and transfer of children from occupied areas of Ukraine to the Russian Federation. The warrant against Putin was historic: it named the sitting head of state of a nuclear-armed permanent member of the UN Security Council.

Challenges and Implications

The Ukraine investigation faces formidable practical obstacles. Russia does not recognize the Court, will not surrender suspects, and Putin is unlikely to be arrested while in power. Yet the investigation is building a comprehensive evidentiary record of alleged crimes: strikes on civilian infrastructure, sexual and gender-based violence, extrajudicial killings in occupied territory, and the systematic deportation of Ukrainian children. That record does not evaporate if a suspect stays out of custody; warrants have no statute of limitations and constrain a suspect's travel, as Putin's absence from the 2023 BRICS summit in South Africa, a states party, illustrated.

The situation has also revived debate over the crime of aggression, the 'supreme international crime' identified at Nuremberg. Under the Rome Statute's amended aggression regime, the Court cannot exercise aggression jurisdiction over nationals of non-party states like Russia, even though it can pursue war crimes and crimes against humanity committed on Ukrainian soil. This gap is why states and scholars have pushed for a dedicated tribunal to prosecute the aggression itself, the illegal decision to invade, rather than only the crimes that flowed from it.

Worked Example: Which Crimes Can the Court Actually Reach?

A common confusion is to assume that because the ICC has jurisdiction in Ukraine, it can prosecute every Rome Statute crime there. It cannot, and the reason lies in how each crime's jurisdictional rules differ. Walk through the four core crimes against Russian conduct in Ukraine:

The first three crimes are reachable because the Court's jurisdiction over them follows the territory where they occur, and Ukraine has consented. The crime of aggression is the outlier: the amendments adopted at Kampala in 2010 (activated in 2018) bar the Court from exercising aggression jurisdiction over nationals of a state that has not ratified them, absent a Security Council referral, which Russia would veto. That single structural exception is the entire reason the special-tribunal debate exists.

A Special Tribunal for Aggression?

Because the ICC cannot prosecute Russian leaders for aggression, momentum has built for a purpose-built tribunal to fill the gap. Ukraine, the European Parliament, and the Parliamentary Assembly of the Council of Europe all called for one, and work through the Council of Europe advanced toward establishing a Special Tribunal for the Crime of Aggression against Ukraine, envisioned as an internationally staffed body seated in The Hague and designed to complement, not compete with, the ICC. Critics warn that a bespoke tribunal risks looking like 'victors' justice' and could fragment international criminal law by spawning parallel institutions. Supporters counter that it is the only available route to hold the Russian leadership accountable for the foundational crime, the decision to wage an illegal war, and that letting that crime go unaddressed would damage the UN Charter order far more than the tribunal would damage the ICC. The precedent they invoke is Nuremberg, where the gravest charge was the planning and waging of aggressive war itself.