The Rome Statute of the International Criminal Court (RS) is one of the most debated international treaties that Ukraine has signed, but has not ratified yet. Despite the large number of Ukrainian citizens who suffered from war crimes and crimes against humanity in Donbas and Crimea, Ukraine still lacks the political will necessary to join an important instrument of international justice.
At present, Ukraine is among six European countries that are not being States Parties to the International Criminal Court (ICC) alongside Russia, Belarus, Armenia, Turkey and Azerbaijan.
Leonid Kuchma: number one attempt
Ukraine signed the RS in 2000.
Some human rights activists believe that the ratification of the RS failed in the early 2000s because of the personal fears of then high-ranking officials, which may have arisen after a “Cassette Scandal” and other high-profile events under Leonid Kuchma’s presidency.
Back then, Leonid Kuchma appealed to the Constitutional Court of Ukraine (CCU) with a request to give a conclusion on the conformity of the RS with the Constitution of Ukraine. During the years of Ukraine’s Independence, the RS of the ICC was the only international treaty that has been sent to the Constitutional Court for checking its constitutionality before ratification. In 2001, the Court concluded that the RS complied with all the provisions of the Constitution of Ukraine, except for the principle of complementarity. The RS stated that the ICC complemented national criminal justice bodies, while the Constitution of Ukraine stipulated that the entirety of the judiciary in Ukraine belonged to national courts exclusively. Accordingly, the CCU has concluded that Ukraine could ratify the RS only after the relevant amendments have been made to the Constitution.
After that, the issue of ratification of the RS was of little interest to Ukrainian political circles for a long time. At that time, few could imagine that international crimes (war crimes, crimes against humanity, genocide, aggression) could be committed in Ukraine.
Petro Poroshenko: number two attempt
However, in 2014, there were many events that made Ukraine seriously consider ratifying the RS.
First, the killings, torture of activists and other grave human rights abuses during the Euromaidan suggested that Viktor Yanukovych’s regime may have committed crimes against humanity.
Second, after the annexation of Crimea and the beginning of the armed conflict in Donbas, the Russian occupation authorities and pro-Russian militants began committing mass killings of civilians, used “live shields”, committed violent kidnappings, arbitrary imprisonment, torture and other acts that could be qualified as war crimes or crimes against humanity (Art.7-8 of the RS).
Third, Ukraine has signed and ratified the Association Agreement with the EU, Article 8 of which provides that Ukraine and the EU «shall cooperate in promoting peace and international justice by ratifying and implementing the Rome Statute of the International Criminal Court (ICC) of 1998 and its related instruments».
However, in order to investigate these crimes, Ukraine has decided to take a different path from ratification of the RS. Without being a State Party to the RS, Ukraine used the procedure provided for in Article 12 (3) of the RS, by submittingtwo applications for recognition of the ICC’s jurisdiction over certain crimes in the territory of Ukraine:
- possible crimes against humanity during the Euromaidan (from November 21, 2013 to February 22, 2014);
- possible war crimes and crimes against humanity throughout Ukraine, including Crimea and Donbas (from February 20, 2014, with no due date).
At the same time, Petro Poroshenko and the parliamentary majority of the Verkhovna Rada of the eighth convocation did not have the political will to implement the long-awaited recommendation of human rights organizations to ratify the RS. Prosecutor General Yuriy Lutsenko, Deputy Head of the Administration of the President of Ukraine Oleksiy Filatov, many MPs of the eighth convocation (Anton Herashchenko, Tetiana Chornovol) said that many Ukrainian servicemen could find themselves in the dock in the Hague in the event of ratification of the RS, while Russian citizens would escape responsibility for crimes in Donbas. These arguments were unconvincing and demonstrated a lack of awareness among the Ukrainian political elite about ICC’s functioning.
First, having recognized the ICC’s jurisdiction, Ukraine has already committed to cooperate with the ICC fully and without delay in investigating crimes in Donbas and Crimea. Theoretically, the ICC may investigate war crimes and crimes against humanity committed by Ukrainian military personnel in Donbas even without ratification.
Second, the ICC investigates war crimes and crimes against humanity committed by any party to an armed conflict in a particular territory. As a result, the ICC may investigate both crimes committed by pro-Russian militants or Russian troops and Ukrainian troops in Donbas.
Third, the ICC does not prosecute ordinary perpetrators of these crimes, but only senior political and military leaders, for whom war crimes or crimes against humanity constituted a purposeful and systematic policy.
Fourth, despite the fact that Russia has withdrawn its signature under the RS following the publication of the ICC Prosecutor’s Office’s report in 2016 (according to the report, the occupation of Crimea equated to an international armed conflict; there was a preliminary established parallel existence of both non-international and international armed conflicts in Donbas involving Russia), it does not prevent the ICC from prosecuting any suspected Russian citizens (including the President and the Chief of Staff) in the territory of 122 ICC’s States Parties.
Finally, the Constitution of Ukraine was amended in 2016, which allowed the ratification of the RS after June 30, 2019 (Article 124).
Volodymyr Zelenskyi: number three attempt
The coming of Volodymyr Zelenskyi to power has raised a new wave of socio-political discourse around the RS’s ratification.
Against the backdrop of public pressure, in June 2019, the Verkhovna Rada approved in the first reading the long-awaited bill #9438, which shall bring the Criminal Code of Ukraine in line with international law, in particular with the RS.
First, this bill incorporates crimes against humanity, aggression and a number of war crimes into Ukrainian criminal law.
Second, it provides that international crimes have no statute of limitations. This would make it possible to prosecute those guilty of these crimes at any time.
Thirdly, the adoption of draft law #9438 would make it impossible to apply amnesty for international crimes, despite paragraph 5 of the Minsk Agreements.
Another signal giving reason to hope for progress in the RS’s ratification was the statement by the Deputy Head of the Presidents’ Office Ruslan Riaboshapka who supported the ratification.
In the near future, the RS’s ratification will be influenced by several factors:
- political will of the Verkhovna Rada of the new convocation;
- the pressure of victims of conflict and human rights defenders;
- position of the EU countries, in case they manage to convince that RS’s ratification would facilitate an effective investigation of international crimes in Ukraine.
Ukraine’s new rights and obligations after the ratification
The RS’s ratification would give Ukraine the rights of a fully-fledged ICC’s State Party:
- Ukraine would be able to participate in resolution of strategic issues in work of the ICC and rather than only be its object;
- Ukraine would participate in the election of the Prosecutor and judges of the ICC;
- Ukrainian citizens would be able to work in the ICC bodies;
- Ukraine would be able to submit to the ICC Prosecutor any situation in which international crimes may have occurred in any country.
In turn, upon ratification of the RS, Ukraine would undertake additional responsibilities: to pay membership fees and cooperate with the IСС in investigating international crimes in other countries.