June 30, 2023

Information and Evidence Unit, Office of the Prosecutor, Post Office Box 19519, 2500 CM, The Hague, The Netherlands

otp.informationdesk@icc-cpi.int

The Honourable Karim Khan

The Prosecutor of the International Criminal Court

Subject: Complicity in crime of aggressive war, war crimes, and crimes against humanity

Dear Honorable Khan,

The United Nations Charter, which is the quasi-Constitution of the World, sets out the norms and standards of behaviour in international life. Known as the hard core of international law, the prohibition of “the threat or use of force against the territorial integrity or political independence of any state”[1] is the highest of all norms from which no derogation is permitted. Having been recognized as a strict jus cogens norm[2], the non-use of force safeguards the purposes of the United Nations, i.e., 1) maintaining international peace and security; 2) friendly relations among nations; and 3) achieving international co-operation in solving international problems.[3]

CSABA KŐRÖSI

Having considered as the strict prohibition of the threat or the use of force, we Iranian thinkers, lawyers, and human rights activists living abroad, express our deep concern about the I.R. of Iran’s complicity in the continuation of the aggressive war against Ukraine. Therefore, under the auspices of the Charter and norms and principles of international law, and

1. Reaffirming that members of the United Nations “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations,”
2. Recalling General Assembly’s resolution 3314 (xxix), which reaffirms that “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”,[4]
3. Remembering the International Law Commission’s emphasis on (jus cogens) peremptory norms of international law as a “norm accepted and recognized by the international community of the states as a whole as a norm from which no derogation is permitted”,[5]
4. Insisting the non-use of force as a norm that protects fundamental values of international community, which is hierarchically superior to any other rules and norms of international law, hence must be considered universally applicable,[6]
5. Considering threat or use-of-force as the grave violation of the jus cogens norms as specified in the judgment of the International Court of Justice on the Case Concerning Military and Paramilitary Activities in and against Nicaragua,[7]
6. Recalling Vienna Convention on the Law of Treaties that nullifies agreement contradicting jus cogens norms,[8]
7. Reaffirming the moral and humanitarian force of jus cogens norms prohibiting strictly the threat or use-of-force in customary international law,[9] later embedded in treaty law including the UN Charter.

We express our serious concerns about

1. participation of the I.R. of Iran in a war of aggression against Ukraine through supplying the Iranian-made Shahed-136 Kamikaze (called Geranium-2 by Russia) drones since mid-September 2022, [10]
2. this participation is a crime under international law, based on the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal,[11]
3. international responsibility of the I.R. of Iran for assisting in the “commission of an internationally wrongful act”[12] regarded by the ICJ in Application of the Convention on the Prevention and Punishment of the Crime of Genocide as the violation of customary international law,[13]
4. The I.R. of Iran’s complicity in the aggressive war against Ukraine is conducive to a) crime of aggression, b) war crimes, and c) crimes against humanity, all of them fall under jurisdiction of the ICC, and
5. responsibility of individuals in charge of complicity with Russia’s aggressive war, requires investigation by the ICC under article 15 (1-c and d).

Accordingly, we humbly urge you, in the absence of the referral of the act of aggression, initiate an investigation into the complicity in a) continuation of the crime of aggressive war against Ukraine, b) the tragic occurrence of war crimes, and c) crime, against humanity.

Our request is not ex nihilo. Already Eurojust-supported joint investigation on the above-mentioned crimes. Also, the UN Independent International Commission of Inquiry on Ukraine has highlighted the same wrongful act against the values enshrined by the international community.

Sincerely yours,

Mahmoud Masaeli Ph.D.

The Honorary Executive Director of Alternative Perspectives and Global Concerns, consultative status with the UN ECOSOC

Htpps://apgc.ca

president@apgc.ca

president.apgc@gmail.com

Retired professor of political science, international law, and human rights, Carleton, and Ottawa universities.

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[1] Charter, article 2(4).

[2] Jus cogens = Peremptory norms of international law

[3] Charter, article 1(1,2,3).

[4] Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX), 1974.

[5] International Law Commission, chapter V, Peremptory norms of general international law (jus cogens), section C, part one, conclusion 2.

[6] Ibid., conclusion 3.

[7] The principle prohibiting use of force embodies in article 2(4) of the Charter “has come to be recognised as jus cogens”. The Case Concerning Military and Paramilitary Activities in and against Nicaragua, International Court of Justice Judgment of 27 June 1986, p. 101.

[8] Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, article 53.

[9] The ILC, op cit., conclusion 5(1). Also, A curious feature of Article 2(4) of the UN Charter is that it prohibits force against “any state,” not simply any UN member. Also, article 2(6) obliges the UN to ensure that non-UN-member states act in accordance with its principles.

[10] Guardian, October 17, 2022. BBC, 14 December 2022. Also, Time, October 20, 2022.

[11] Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, 1950, principle vii (a-ii).

[12] International Law Commission Articles on State Responsibility, article 16.

[13] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).