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But when the crime of aggression was being discussed for inclusion in the Rome Statute, most state parties didn’t want the ICC to have jurisdiction unless both the aggressor and victim states agreed to it.
In this instance, the aggressor state Russia has not agreed to any aspect of the ICC’s jurisdiction, so prosecuting the crime of aggression in the ICC is off the table.
So how will the investigation proceed, and who might face trial?
The ICC has an independent prosecutor, whose team is responsible for undertaking investigations and deciding which individuals to charge with one or more crimes.
Like prosecutors in national legal systems, the ICC Prosecutor is responsible for presenting evidence against the accused at a trial and convincing the judges of the accused’s guilt. There is no jury at the ICC; instead, there is a panel of international judges.
The investigation will likely take a long time and it will almost certainly be years before any suspects face court in the Hague if any ever do.
The ICC does not have its own police force and relies on states to arrest suspects and transfer them to the court. Any Russians wanted by the ICC could theoretically evade arrest by avoiding travel outside Russia.
In choosing which individuals to charge with crimes, the Prosecutor will consider the evidence against them and the role they allegedly played in committing the offences.
International crimes are usually committed on a large scale, with many victims and many perpetrators. But the ICC was established as a court of last resort’, meaning it will typically only prosecute a small number of people those considered most responsible for the worst crimes.
The ICC simply doesn’t have the resources to pursue everyone who has committed a crime, and it is expected that low-level’ offenders should be prosecuted in local criminal courts, as is the case with Vadim Shishimarin, a 21-year-old Russian soldier currently on trial in Ukraine for war crimes.
Many countries now have their own laws relating to international crimes and are encouraged to prosecute persons accused of war crimes, genocide and crimes against humanity, even if they were committed elsewhere in the world (this is known as universal jurisdiction).
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