THE ADVOCATE 661
VOL. 80 PART 5 SEPTEMBER 2022
UKRAINE AND THE UNFINISHED CRIME
OF AGGRESSION
By Jeffrey J. Smith
Russia’s further invasion and occupation of Ukraine in 2022 will
predictably have far-reaching consequences for global order and
the shaping of international law, not least the progress of international
criminal law. Whatever the problems of resolving a
conflict in Europe exceptional for its depravity and horror, international criminal
law has been shown to be an inadequate deterrent even as it offers the
promise of justice in the aftermath of hostilities. The suggestion that a kind
of end of history had arrived in recent years for international criminal law
can be dismissed: war in Ukraine will reveal new demands of it, some urgent.
It is fittingly ironic that war in Ukraine has brought renewed discussion
of how the international crime of aggression is being implemented. The
city of present-day Lviv in the west of the country is where the idea of making
aggression a crime can be traced, by the education there of two lawyers
who shaped the Nuremburg trials following the Second World War: Hersch
Lauterpacht and Raphael Lemkin.1 Until now, their legacy in defining a
modern international criminal law, one that includes aggression as the
“supreme international crime ... in that it contains the accumulated evil of
the whole”, has remained incomplete.2
INTERNATIONAL CRIMINAL LAW
International criminal law (“ICL”) can be understood as those precepts
binding on individual persons for the avoidance of specific wrongful acts
during armed conflict and its aftermath. ICL is the adjunct to an international
humanitarian law (“IHL”) directed to the protection of persons (and,
to an extent, their cultural heritage, natural resources and environment)
during hostilities and occupation. ICL was, until recent decades, without a
coordinating framework for its definition (i.e., a treaty for its more certain
codification and uniform implementation among states). This can be seen
in the criminal tribunals created by the UN Security Council for, among
other situations, Rwanda and Yugoslavia in the 1990s, each with initially
uncertain definitions of crimes, jurisdiction and forms of accessory and
contributing liability. ICL as defined by the 1949 Geneva Conventions (and