After months of speculation, Ukraine has finally decided to refer the violence in the country since February 2014 to the International Criminal Court (ICC). The ICC is now free to open a preliminary investigation and, if it finds reason to proceed, an official investigation into alleged crimes committed not only during the chaos on Kiev’s Maidan Square but in the east of the country, especially in the regions of Donetsk and Crimea. Here are a few thoughts on what the potential ICC investigation into Ukraine means – or could mean.
Why not just join the ICC?
Yesterday’s decision marked the second time that Ukraine has opened itself up to an ICC investigation. It previously referred the months of November 2013 to February 2014, a period captured the violence on the Maidan Square, to the Court. Few people close to the situation believed that the first referral would have led to charges as the crimes were unlikely to meet the ICC’s gravity threshold and Kiev likely wanted to avoid a determination by prosecutors that no crimes had been committed in Ukraine, leading to a second referral.
Ukraine’s most recent decision, taken under Article 12(3) of the ICC’s Rome Statute, expands the ICC’s jurisdiction to events since 20 February 2014. But an important question remains: why won’t Ukraine simply ratify the Rome Statute and become a member-state join the Court? The simple answer is that there remain constitutional barriers to doing so – the same that existed when Ukraine first referred the Maidan square events to the ICC. Despite the fact that Ukraine signed the Rome Statute in 2000, a 2001 ruling by Ukraine’s constitutional court found that ratifying the Statute would be unconstitutional. The question that now arises is: will Ukraine ever become a member-state of the ICC and do the two ‘partial’ referrals make a prospective decision to join the Court more or less likely?
Who will the Court target?
In his letter accepting an expansion of the ICC’s jurisdiction in Ukraine, Foreign Minister Pavlo Klimkin declared that the Ukrainian parliament had previously adopted a resolution entitled “On the recognition of the jurisdiction of the International Criminal Court by Ukraine over crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of two terrorist organisations – “DNR” and “LNR”- which led to extremely grave consequences and mass murder of Ukrainian nationals.” This language suggests that Ukraine is attempting, as it did with its first referral, to direct the Court towards exclusively prosecuting its Russian, and Russian-affiliated, adversaries.
This is not the first time a state has sought to refer its enemies – rather than a conflict situation or situation of mass atrocity – to the ICC. The government of Uganda infamously referred the Lord’s Resistant Army to the Court in 2004. As with that case, the ICC will surely interpret the referral as providing jurisdiction to investigate all international crimes committed on the territory of Crimea, irrespective of who committed them.
However, the ICC will also face a familiar quandary. If it does open an official investigation into the situation in Ukraine, the Court will almost certainly be dependent on Ukrainian officials for witness protection, witness testimonies and the collection of other relevant evidence. That may, as it has in the past, lead prosecutors to focus on only one side of the war (Russia and Russian-backed rebel groups) whilst neglecting the alleged crimes of Ukrainian forces. Given increasing evidence of serious crimes committed by Ukrainian troops and government-backed groups, this would make a mockery of the pursuit of impartial justice.
Russia comes under the ICC Microscope – Again
An ICC intervention into Ukraine would not mark the first time that Russia has come under the Court’s scrutiny. It has also been a focus of the ICC’s preliminary examination into the 2008 war in Georgia which is, according to many sources, inching towards official investigation status. And as with the case of Georgia, Russia may not mind – and believe that they could benefit from the ICC’s involvement. Russia could also decide to selectively cooperate with the ICC. Indeed, Moscow will likely flood the ICC’s Office of the Prosecutor with documentation in an attempt to point the Court’s finger in Ukraine’s direction – or at least delay any real action or arrest warrants being issued. Continue reading