A row of empty seats from flight MH17 lies in a field in eastern Ukraine (Photo: Getty)
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.
However, Russia could also attempt to introduce another legal argument which has recently been invoked at the ICC. Moscow could argue that Crimea is not, in fact, a part of Ukraine, and therefore the Court does not have jurisdiction on its territory. This would be the same argument that Israel and the United States have made with regards to Palestine, insisting that because it does not have statehood, it is unable to become a member-state of the ICC or refer itself to the Court. The ICC is far from an ideal place to decide which territories belong to which states, but the Court’s Judges may be forced far out of their comfort zone.
The ICC and flight MH17
The expansion of the ICC’s jurisdiction in Ukraine means that the Court will, in theory at least, be able to investigate the downing of Malaysian Airlines flight MH17. Western states, however, don’t appear keen. They would prefer to see the UN Security Council create a special tribunal focused exclusively on the bombing of the plane. Russia, however, has steadfastly rejected the idea and vetoed any resolution to that effect. The ICC itself may also be less than keen, preferring to focus its limited resources on crimes committed in Crimea and Donetsk, crimes which have received far less global attention and are, as a result, less likely to receive judicial scrutiny.
So long as there is a genuine criminal investigation into to the downing of MH17, the ICC is unlikely to investigate. At the moment, however, there is none. The question thus arises: does the ICC’s involvement and jurisdiction over the flight’s downing put additional pressure on Russia to allow for the creation of an independent tribunal to investigate the tragedy?
Peace versus Justice in Ukraine?
Finally, a question that inevitably arises in the context of ICC interventions into ongoing conflicts is how the Court’s involvement will affect the ability of relevant actors to resolve the war peacefully. Here, opponents of ICC interventions should wade carefully. The Minsk peace process is a mess – and would be a mess irrespective of whether or not the Court intervened.
Still, rather than having the ICC intervene and become a major player in Ukraine, it would be ideal for Russia and Ukraine to forge forward with a peace process that genuinely and effectively dealt with issues of justice and accountability. For now, that remains unlikely. The hope is that the promise – and threat – of an impartial ICC investigation into crimes committed in Ukraine since 2014 might push the parties in the right direction. To date, nothing else has worked.
A version of this post was originally published for my bi-monthly column, CourtSide Justice at Justice Hub.
Justice in Conflict 
Seems the US satellite photos may hold some embarrassing facts about the shoot down of MH17 and that is why the UNITED SNAKES (US/NATO) have been so quiet about asking the ICC to investigate the shoot down.
Two thoughts.
First, I think the status of Crimea is a non-issue. International law is very clear that territory cannot be forcibly annexed, so I don’t see any even cognisable argument that Crimea is not still Ukrainian territory. And I would be shocked if the judges spent more than a paragraph in a jurisdiction decision dealing with it.
Second, I don’t understand why an ICC investigation into MH-17 might encourage Russia to permit the UNSC to create an ad hoc tribunals. Ad hocs work — at least in terms of obtaining suspects and evidence. The ICC doesn’t. So I think Russia would be overjoyed if the ICC got involved.
A version of this comment was originally posted in response to Mark Kersten’s bi-monthly column, CourtSide Justice, at Justice Hub.
Thanks for the post mark , I was wondering :
1) Why would a court in Ukriana , rule that , joining the Rome convention ,is unconstitutional ? it is dealing ( the convention) with : jus cognes crimes !! Can you provide us with an explanation ??
2) Interestingly , you haven’t mentioned the crime of aggression , as a potential one , why wouldn’t the court , treat the invasion to crimea and eastern Ukraine , as crime of aggression ??
3) Finaly , Should be noticed ,it is a mistake , and common one unfortunately , to attribute to the ICC , territorial jurisdiction . It is an international court ,and permanent one , and as such , and surly as criminal one , it has no territorial jurisdiction , by definition so !! what it has , is universal , international , natural jurisdiction ,which can be triggered by territorial aspects or Q . The case with Omar Al bashir , is good one :
Sudan wasn’t a state party , nothing to do with the Rome convention , and yet , investigation and arrest warrant issued .The fact the Sudan , as territory , is not assigned to the convention , didn’t bar the court from exercising it’s : international , global jurisdiction . The UN referral , was only the trigger for exercising natural jurisdiction , but not jurisdiction , per se !!
Its’ like lodging a complaint in the police station , yet , the complaint only triggers jurisdiction , not forming it , not constituting it , the police can and should investigate many times , without any complaint lodged .
Thanks
Re: Interestingly , you haven’t mentioned the crime of aggression , as a potential one , why wouldn’t the court , treat the invasion to crimea and eastern Ukraine , as crime of aggression ??
The amendments to the Rome Statute that might allow the Court to exercise jurisdiction over the crime of aggression have not yet entered into force. Even when that happens, there will be other predicate conditions that would not be fulfilled by Ukraine’s Article 12(3) declaration. But there’s a difference between “applicable law” and “jurisdiction”. So, at least in theory, the Court might consider evidence of aggression as a relevant factor in preliminary examinations or sentencing. But the odds of that happening are in this case are pretty remote.
Thanks Hostage for the explanation , I have thought mistakenly , that already enterd into force ……
Re: 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.
That ruling was a complete non-sequitur. Article 9 of the Constitution contemplated continued applicability of treaties: “International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.” http://www.ccu.gov.ua/doccatalog/document?id=12084
One of the existing treaties that the constituent assembly was discussing when it adopted that clause, would be the UN Convention on the Non-Applicability of Statutory Limitations To War Crimes and Crimes against Humanity. Ukraine is still one of the contracting state parties.
I agree that an amendment would be needed to delegate judicial functions regarding other portions of the Ukrainian penal code or civil cases to foreign courts. But I don’t see where a constitutional amendment is necessary in the special case of any alleged statutory limitations regarding war crimes and crimes against humanity in accordance with Article 9 of the Constitution and the UN convention. So long as a simple majority of the Rada has accepted the continued applicability of that convention to those particular categories of crimes, Article 9 of the Constitution says that is an integral part of the national legislation of Ukraine.
P.S. I think the terms of Articles VI and VII of the Genocide Convention regarding extradition and/or the exercise of jurisdiction by an international penal tribunal, read together with Article 9 of the Constitution of Ukraine, is susceptible to a similar constitutional interpretation by the Rada, i.e. the UN Genocide Convention and the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity are an integral part of the national legislation of Ukraine.
Reblogged this on cautivadulce.
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The author seems to tread very lightly on the issue of the ICC invariably investigating Ukraine itself, since its attacks on the Donbass have clearly resulted in the vast majority of the civilian casualties (unless one is inclined to argue, as the Ukrainians have, that the rebels have been shelling their own civilians). I have no idea what Ukraine’s game plan is in handing jurisdiction over to the ICC, other than it’s convinced it can rely on its foreign sponsors influence on the Court to keep the investigations solely focused on rebel transgressions or that it thinks that having labeled its war an anti-terror operation, it somehow will remain immune to the Geneva Convention.
Hello,
What would you think about refering the case to the ICJ? In my opinion Ukraine violated by omission the international obligation of aeronautical safety of the Chicago Convention. Therefore, the contracting states could refer the case to the ICJ against Ukraine. Do you think this would be a good way?
Thank you
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