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VOL. 80 PART 5 SEPTEMBER 2022
force is said to have been unlawful, a violation must be shown as overt in
each of its character, gravity and scale.
It is arguable that there may be acceptable uses of minimal force in
humanitarian intervention situations. Force could be tolerable in the delivery
of humanitarian relief to a state unable or unwilling to give approval.
The threshold for an individual senior official’s liability is the degree of
gravity as prescribed by Article 8bis and Understanding 7. A second type of
permissible situation, where there is no loss of life or damage to civil infrastructure,
could be the deterrence of threatened violence by a targeted state
against part of its population in circumstances where there is no selfdefence
interest on the part of the attacking state. Missile strikes by the
United States against alleged chemical weapons sites in Syria in 2017 and
2018 could arguably have met this justification.23
THE LESSONS OF AGGRESSION IN UKRAINE
The conflict in Ukraine offers lessons for understanding the crime of
aggression and the challenges of its prosecution. These challenges arise
despite the fact that the requirements of the definition are likely met. A
more obvious act of aggression, both at the level of a state and in criminal
behavioural terms as one directed by individuals, is difficult to imagine.
Who are such individuals? They include Russia’s president Vladimir V.
Putin and defence minister General Sergei Shoigu. The available record is
less clear about ostensibly involved members of Russia’s government,
including prime minister Mikhail Mishustin and foreign minister Sergey
Lavrov. Of course, the scope of “ordinary” ICL crimes is now extensive
seven months into an illegal war and occupation, and will surely extend to
officials across the Russian government and armed forces.
There is no ambiguity about the nature and seriousness of the armed
conflict and a continuing occupation in Ukraine since February 24, 2022.
The extensive thresholds to invoke the crime of aggression that resulted
from compromise on the way to codification in 2010 are readily met in the
case of Ukraine. The character, gravity and scale of territorial transgression
are manifold. Further, no justification, including any claim of self-defence
under Article 51 of the UN Charter, seems credible. One of Russia’s stated
objectives in the first days of the war, to eliminate Ukraine as a state,
demonstrates the peril of the circumstances.24 In the following months, this
has been reinforced by Russia’s disregard of the ICJ’s provisional measures
order that directed Russia to “immediately suspend the military operations
that it had commenced on 24 February 2022 in the territory of Ukraine”.25
The adequacy of aggression’s definition for circumstances that are less
clear-cut can await future reconsideration.