Territorial Jurisdiction of the International Criminal Court over the Russian Leadership: Locus Delicti in Complicity Cases

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A month has passed since the beginning of invasion of Ukraine on 24 February 2022. Numerous incidents such as the use of cluster munitions in populated areas or the Mariupol theatre bombing give rise to allegations of war crimes.

Pursuant to article 12 of the Rome Statute, the International Criminal Court has jurisdiction over the crimes committed in the territory of a state that has become a party to the Statute or filed an ad hoc declaration. Ukraine filed such a declaration in 2015. Although Russia never became a party nor filed a declaration, the Ukrainian declaration alone constitutes a valid jurisdictional basis for all crimes except for the crime of aggression.

However, it is perfectly possible that apart from the direct perpetrators, such as ground troops firing on civilian targets, other persons who are geographically removed from the scene of the crime may be complicit or otherwise participate in its commission. Such accomplices may act from the territory of a different state. Alleged crimes in Ukraine may have been ordered, authorized or tolerated by the Russian commanding officers and political leadership in the headquarters in Moscow or anywhere else outside Ukraine. Does the Court’s jurisdiction encompass all of the persons involved, or only those who were present in the territory of Ukraine, or none of them?

This question, which is about the precise extent of territorial criminal jurisdiction for individuals who are not direct perpetrators and is part of a broader issue referred to as locus delicti (‘place of the crime’), finds no answer in the text of the Rome Statute. But other principles of international and comparative law can help answer it. In this post, I argue that jurisdiction of the ICC over war crimes potentially committed in Ukraine extends to Russian officials and commanders who, while situated in Russia, may have ordered, aided or tolerated the commission of such crimes on Ukrainian soil.

In Bangladesh/Myanmar, the Court confronted this issue in a different factual setting that did not involve cross-border complicity. To address it, the Court interpreted the Statute in light of customary international law governing criminal jurisdiction of states, ‘as this would have been the legal framework that the drafters had in mind when they were negotiating the relevant provisions’ and ‘as this is the maximum [amount of jurisdiction] the States Parties could have transferred to the Court’ (here, para. 55; see also here, para. 70 and here, paras. 49-50). The Court did not formulate any specific holding on cross-border participation in crime, as it was not called upon to address it. To fill this lacuna, one has to identify the relevant rules of international law by looking at national legislation and jurisprudence. There, four approaches can be observed.

Isolating approach

The first of them, what I call the isolating approach, limits territorial jurisdiction to those participants who acted within the territory of the state. Where a person in country A solicits or aids the perpetrator in country B, territorial jurisdiction of country A will be limited to the person soliciting or aiding the crime, while that of country B will only encompass the perpetrator.

Under the isolating approach, the ICC would lack jurisdiction over those Russian leaders who never left Russian territory. However, it is extremely unlikely that this approach will be adopted by the ICC. I am not aware of any country that ever applied it except the Netherlands, which adhered to it for some time until a Supreme Court decision in 1997 (see Ryngaert, 2009 at p. 203, fn. 77; Wolswijk in this book at 334).

Accessorial approach

An approach that I’d like to term accessorial is based on the distinction between the two categories of participants: the principal offender (the perpetrator) and the accessories (aiders and abettors, instigators and the like). It equates the locus delicti of the accessories to that of the principal. If a person in state A calls or texts her friend in state B and, upon learning he’s in a dire financial situation, urges him to resort to shoplifting, which he immediately does, then under the accessorial approach both of them will be triable in state B and none of them will fall under the territorial jurisdiction of state A. The key and only relevant factor here is where the principal offender commits the crime.

Historically, criminal law oscillated between two ways of thinking about participation. One line of thought regarded all of the parties to the crime as autonomous wrongdoers deserving fully individuated punishment. The other deemed those who assisted or encouraged the crime mere ‘accessories’ whose measure of guilt and punishment was entirely determined by that of the principal offender. The accessorial approach stems from this latter reasoning.

A striking example is the XIX-century France. Article 59 of the Criminal Code of 1810 posited that ‘[a]ccessories […] shall be punished with the same punishment as the principals […].’ In cases where the principal committed a crime abroad, the Court of Cassation interpreted this provision as barring prosecution of accessories who acted in the French territory, since the principal did not trigger the French jurisdiction and was not subject to any punishment (e.g. Crim., 19 avril 1888, B., n^o 151, S., 1888, 1, 345). Conversely, if the principal committed the crime in France, the Court readily asserted jurisdiction over accessories acting in foreign territories (Crim., 24 févr. 1883, B., n^o 57, S., 1885, 1, 95; Crim., 13 mars 1891, B., n^o 66, S., 1891, 1, 240).

This approach is still regarded as English common law. As the leading English author has put it, ‘any person who participates abroad in an offence committed within England and Wales may be prosecuted and convicted under English law’ (Hirst, 2003 at 342–343). Conversely, a person in England who encourages or assists a crime abroad ‘cannot logically be convicted because [the perpetrator] commits no offence within the ambit of English law. In other words, there is no offence in which [the person] can be complicit’ (Hirst, in this book at 228, footnote omitted).

The accessorial approach is also applied as a general rule in Switzerland (ATF 81 IV 285 = JdT 1956 IV 16; ATF 108 Ib 301 = JdT 1983 IV 119). A description of the current state of the law can be found in the exquisite judgment by the Swiss Federal Tribunal in ATF 144 IV 265.

An analogy based on the ubiquity principle

In addition to the accessorial logic, there is a different justification for treating accessories as having acted at the place where the perpetrator committed the crime. It deals with the basic rule of international law governing locus delicti, known as the ubiquity principle.

To give a textbook example, ubiquity applies in cases such as killing by firing a gun across a state frontier. There are two prongs to the ubiquity principle, though we are concerned with only one of them. According to the objective prong, widely known as objective territoriality, a crime that includes a consequences element shall be regarded as committed at the place where those consequences occurred. Thus, territorial jurisdiction over the crime of murder lies with the state where the victim died (though under some other rules, other countries may simultaneously have territorial jurisdiction over the same offence). It was precisely this understanding of the ubiquity principle that grounded the Court’s decisions in Bangladesh/Myanmar (despite some terminological confusion on the part of the Court), just as much as the Lotus judgment of the PCIJ in 1927.

One may draw an analogy that the commission of the crime by the principal amounts to the ‘consequences’ of accessorial conduct. In fact, many legal systems, including the Rome Statute, require that the perpetrator actually commit or at least attempt to commit the crime for an accessory to bear responsibility. In other words, actual or attempted commission by the perpetrator is an essential element of the offence committed by an accessory. This analogy has been put forward by scholars and judges of various nations (e.g. Deloume, 1882 at p. 79; Crim., 24 févr. 1883, B., n^o 57, S., 1885, 1, 95; ATF 81 IV 285 = JdT 1956 IV 16; Suominen, Norway, in this book at p. 104, fn. 60). The Office of the Prosecutor might have relied on this analogy in Afghanistan, if I’m not reading too much into its article 15 submission (at para. 47, fn. 49).

Combined approach

The third, combined approach extends territorial jurisdiction over all persons who would fall within jurisdiction under the isolating approach, as well as all persons who would fall within jurisdiction under the accessorial approach. In the shoplifting example above, state B will be able to try both persons, while state A’s territorial jurisdiction will be limited to the person calling or texting from state A.

France ditched the accessorial approach in favor of the combined approach in 1958 with the adoption of the Code of Criminal Procedure. Article 690 established jurisdiction over accessories acting in the French territory, where the principal committed the crime abroad. It was also seen as an implicit affirmation of the previous jurisprudence asserting jurisdiction over all of the participants in the opposite scenario, a principle which continues to apply (Trib. corr. Paris, 11 avril 1983, Gazette du Palais, 1983, 2, 372; Crim., 29 nov. 2016, n° 15-86.712, PB). The provision of article 690 was later transferred to article 113-5 of the new Criminal Code enacted in 1992, now in force.

In Germany, the combined approach is enshrined in section 9 of the Criminal Code, a result of the Große Strafrechtsreform in force since 1975. Unlike the French code, it governs both scenarios: where the perpetrator commits the crime in Germany and an accessory acts abroad and vice versa. Analogous provisions exist in the criminal codes of Bosnia and Herzegovina (art. 23), the Czech Republic (art. 4), Finland (chapter 1, section 10; an account of the drafters reasoning, which is very characteristic, is given by Träskman in this book at. 517–518), Lithuania (art. 4) and Moldova (art. 12), among other countries.

England and Switzerland are shifting towards the combined approach by enacting statutory provisions establishing jurisdiction over local accessories who assist or encourage certain specific conduct abroad (e.g. s. 20 Misuse of Drugs Act 1971, applied in R. v Vickers (1975) 61 Cr. App. R. 48 and R. v Evans (1977) 64 Cr. App. R. 237; s. 71 Criminal Justice Act 1993; s. 52 Serious Crime Act 2007; art. 95 of the Swiss Loi sur l’énergie nucléaire, interpreted in ATF 144 IV 265). This piecemeal approach is also seen in Australia (s. 150 Trade Marks Act 1995, complementing s. 14.1(2)(c) of the Criminal Code 1995).

Aggregating approach

The aggregating approach closes the only gap left by the combined approach. It extends jurisdiction over all of the participants, if anyone of them acted within the territory of the state. In the shoplifting example above, each state would have jurisdiction over both persons involved.

Here and there in the literature, statements are made to the effect that this approach is applied in certain countries (e.g. Nieto Martín & Garcia-Moreno, Spain, in this book at 391). Some of these statements may result from a misunderstanding of this complex topic, and the actual state practice needs further examination. A critical test case would be a prosecution of a non-national who committed a crime abroad as a perpetrator based on the sole jurisdictional ground that there were accessorial acts committed within the territory of the prosecuting state. Policy considerations weigh in favor of this approach as a matter of national criminal law, but this blogpost is not a suitable avenue to discuss them.

Current international law

In his great article in 2009, Cedric Ryngaert stated that international law allowed for what I call the combined approach (at 202–203). This assessment appears to be correct, as the combined approach seems to be the most widely supported around the world.

Any developments since 2009 could only have broadened the scope of territorial jurisdiction by enabling the aggregating approach. It cannot be ruled out that the aggregating approach is slowly gaining sway and may in time become international law. In any case, international law as it now stands extends territorial jurisdiction over all accessories involved in the crime, including those who acted abroad, if the perpetrator committed the crime within the territory in question.

Russian law

Russian law also extends jurisdiction over accessories overseas. Although Russian legislation is silent on locus delicti, a case of cross-border participation came before the Supreme Court in 1998. In Estonia, a stateless person Ivnitsky ‘directed’ his fellow gang members to meet his brother in Russia to help murder a former gang member. They did so and the victim was murdered in Russia. Ivnitsky was convicted of aiding in murder. The Supreme Court rejected his argument that he never committed a crime on the Russian soil and affirmed his conviction without formulating an express holding on cross-border participation. The decision was reported in the Supreme Court Bulletin (issue 9 for the year 1998, page 5). It is consistent with accessorial, combined or aggregating approaches identified above.

Ukrainian law

According to a translation, art. 6(3) of the Ukrainian Criminal Code of 2001 provides: ‘An offense shall be deemed to have been committed on the territory of Ukraine if the principal to such offense, or at least one of the accomplices, has acted on the territory of Ukraine.’ This abstract provision could potentially be interpreted as adopting the aggregating approach, though a deeper look at its judicial treatment would be appreciated.

Other modes of liability under the Rome Statute

The four approaches identified above were all formed with the two classical forms of accessorial participation in mind: assistance, also termed aiding, and encouragement, a broad category which includes domestic notions of instigation, solicitation, counselling, abetting or procuring. Since the Rome Statute provides for a much more differentiated system of the modes of liability, it is necessary to address some of them.

First, there is ordering (art. 25(3)(b)). Ordering clearly falls within the category of encouragement. It is fully analogous to solicitation (art. 25(3)(b)) and should be treated as such.

Second, there’s co-perpetration (art. 25(3)(a)). In cases of joint commission by several co-perpetrators, where only one or just some of them act within the territory of the state, state practice overwhelmingly asserts jurisdiction over all co-perpetrators acting within the state (ATF 99 IV 121 = JdT 1974 IV 98; Crim., 11 avril 1988, B., n^o 144) and without (Crim., 8 juin 1912, B. n^o 308, D., 1913, 1, 154; TPF 2007 165; the Icelandic case cited by Bragadóttir in this book at 75–76; art. 6 of the Criminal Code of Thailand).

Third, perpetration by means (art. 25(3)(a)). In a not insignificant number of cases, national courts regarded perpetrators located abroad as having committed the crime in the territory of the state through an innocent agent (Crim., 11 août 1882, B., n^o 204, S., 1885, 1, 184, Clunet, 1885, p. 289; Crim., 1^er oct. 1986, B., n^o 262; TPF BB.2013.146). Such assertion of jurisdiction is also supported by scholars (Meyer, Germany, in this book at 147; Son, Korea, in this book at 173; English Law Commission, No 305, Participating in Crime at para. 6.27).

There is also a policy argument. Territorial jurisdiction can be rationalized as flowing from two considerations. First, the evidence is ordinarily accessible at the place where the crime was committed. Second, the damage inflicted by the crime on the societal interests which the state is obliged to protect is also ordinarily manifested at the place of commission. These considerations are objective in nature in that they pertain to reality and not necessarily the inner world of the wrongdoers. That said, the only difference between the case of a distant commanding officer who uses an innocent agent on the ground and that of a cross-border complicity in the form of ordering or co-perpetration lies in the mental state of the person on the ground. The difference is purely subjective as it pertains to the mens rea. It has little or no bearing on the collection of evidence and the damage done whether the person on the ground is used as an instrument or consciously partakes in the crime. It follows that these cases should be treated identically.

Having established that jurisdiction encompasses all of the participants where the crime is committed by a conscious perpetrator in the territory of the state, foreign indirect perpetrators should likewise fall under the jurisdiction in whose territory the offence was committed, if they use a person within the state as an instrument to commit the crime. Where a commander causes a bomber aircraft pilot to engage in an unlawful attack by feeding him false information on the target, the commander shall be regarded as also having acted at the location of the attack.

Finally, there’s command responsibility (art. 28). It is the most problematic, as it is difficult to categorize it as a mode of complicity or a standalone crime. Either way, article 28 is a crime of omission. The way national legal systems have always treated crimes of omission is by saying that they are perpetrated at the place where the criminal ought to have acted. This (totally vague) legal standard can be utilized by arguing that the duty of the commanders under art. 28 is to prevent and repress the commission of the underlying crimes at the place where these crimes are committed by the forces under their control. The same can probably be argued about the duty to ‘submit the matter to the competent authorities for investigation and prosecution’. Thus, all persons responsible under art. 28 for the failure to react to the underlying crimes within the Court’s territorial jurisdiction are subjected to the Court’s territorial jurisdiction, as delegated to it by Ukraine.

Conclusion

The rules identified above cover the modes of liability applicable in most scenarios potentially arising in Ukraine. There is a strong case that in each of those scenarios the ICC may lawfully exercise jurisdiction over the Russian leadership complicit in the alleged war crimes. The ICC can and should act as a deterring factor in this atrocious war.