International efforts to clarify the crime of aggression and its application in the case of Russian aggression against Ukraine

Abstract

The crime of aggression was prosecuted as a crime against peace for the first time at the Nuremberg and Tokyo trials after the Second World War, which was then followed by a decades-long effort to create a functioning unified legal system to limit wars and their effects, that culminated in the creation of the Rome Statute and the International Criminal Court. However, creating legislation for the crime of aggression turned out to be a great challenge, and although, after lengthy meetings, it was finally made part of the jurisdiction of the International Criminal Court, Russia's war against Ukraine has revealed that the jurisdictional regime of the crime has been left completely ineffective and subsequently forgotten, mainly due to the resistance of the major powers during the negotiations.

Such issues arise from the disproportionate system in which the major powers set the rules for the community as a whole but do not abide by them themselves. This calls into question the reliability of the international legal system. The phenomenon has reached its peak in the current war of aggression that Russia wages on Ukraine, as the international community is still lacking consensus relating to the individual responsibility of the Russian decision-makers.

Hence, the main objective of this working paper is to assess the sustainability of our current international legal system by reflecting on the ongoing war of aggression in Ukraine and to show that it has become a decisive factor for the future of the said system. The sustainability of the international legal system is assessed by considering how the international community's reactions and willingness to regulate aggressive war have developed from the 20th century to the present day. The goal is to create a better understanding of the still missing elements that are needed to make lasting peace.