Inching Towards Investigation? Seeking ICC Justice and Complementarity in Ukraine

The following is a guest post by Ania Kwadrans, a lawyer, Senior Policy Advisor at the Refugee Hub, and a Master’s Student at Oxford’s International Human Rights Law Program. The post and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Firefighters seen here tackling a blaze following an attack on several houses Kuibishevskiy, near the airport in Donetsk, Ukraine on Nov. 20 2014. (Photo: Menahem Kahana / PRI)

It has been almost six years since the International Criminal Court (ICC) opened a preliminary examination into the situation in Ukraine. Many readers might thus be wondering: what is happening? What does the Court plan to do? Will an investigation be opened? What actions are being taken in Ukraine itself to address alleged war crimes and crimes against humanity? In this post, I offer an update on the Ukraine situation and summarize key findings of the ICC Prosecutor and views of observers of the situation and investigation in Ukraine.

Background

On 5 December 2019, coinciding with the 18th Assembly of States Parties (ASP), the ICC Prosecutor Fatou Bensouda issued her office’s 2019 Report on Preliminary Examination Activities. This included an update on the Office of the Prosecutor’s (OTP) activities in Ukraine, which has been under preliminary examination since 25 April 2014.

Although Ukraine is not a State Party to the Rome Statute of the International Criminal Court (Rome Statute), Article 12(3) of the Statute enables non-States Parties to accept the Court’s jurisdiction with respect to specific crimes. The Government of Ukraine took this step on 17 April 2014 and 8 September 2015, accepting jurisdiction of the ICC over alleged crimes committed on its territory since 21 November 2013 (OTP Report on Preliminary Examinations, paras. 256-258).

The first of three situations being examined by the ICC concern violence that occurred starting on 21 November 2013 when mass protests erupted in Maiden Independence Square in reaction to then President Viktor Yanukovych’s decision to not sign an agreement that would bring Ukraine into closer cooperation with the European Union. At least 50 anti-government protesters were killed, some shot by snipers. Hundreds were injured.

Following EU-led mediation, a new government was constituted on 21 February 2014, and on 22 February 2014 President Yanukovych was removed from office by vote of Parliament (OTP Report on Preliminary Examinations, paras. 260-261). The new government was met with growing protests, particularly in eastern Ukraine and in Crimea. On 26-27 February 2014, Russian military personnel together with members of local militia progressively occupied the Crimean peninsula. On 18 March 2014, the Russian Federation announced a formal annexation of this territory and has continued to control it ever since. Meanwhile, in eastern Ukraine, protests devolved into violent conflict between Ukrainian armed forces engaging in an “anti-terror operation” and armed anti-government protesters which continued for more than five years. According to the Global Conflict Tracker, violence in eastern Ukraine has resulted in the deaths of more than 10,300 individuals and the displacement of 1.5 million. The situations in Crimea and eastern Ukraine are also under investigation by the OTP.

In her 2019 Report, the ICC Prosecutor concluded that there was a reasonable basis to believe that a number of war crimes and crimes against humanity under the jurisdiction of the ICC had been committed, including: willful killing, torture, outrages upon personal dignity, compelling protected persons to serve in the forces of a hostile power, willful deprivation of the right of protected persons to a fair and regular trial, the transfer of parts of the population of the occupied territory outside this territory, seizure of property not imperatively demanded by the necessities of war, murder, forcible transfer of population, imprisonment and severe deprivation of physical liberty, political persecution, enforced disappearances, intentional attacks against civilians and civilian objects, intentional attacks against protected buildings, and rape and other forms of sexual violence.

Domestic Action and International Support

Two events at the 18th ASP involved discussions about the situations in Ukraine. The Parliamentarians for Global Action(PGA), the Dutch Ministry of Foreign Affairs, and the Republic of Korea Ministry of Foreign Affairs held an event entitled, “Pursuing Universality of the Rome Statute in an Evolving International Context: Persistent Challenges, New Dimensions, and Adaptive Strategies.” Hryhoriy Nemyria, a Ukrainian Parliamentarian and Chair of the PGA National Group in Ukraine, provided further historical context for the situations in Ukraine, noting that in 1994 Ukraine joined the Treaty on the Non-Proliferation of Nuclear Weapons and gave up its large nuclear arsenal in exchange for guarantees of territorial sovereignty and integrity by the United States of America, the Russian Federation, and the United Kingdom via the Memorandum on Security Assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Nemyria emphasized that Russia is thus in violation not only of international law, but also of its own commitments to safeguarding Ukraine’s territorial integrity. Although Ukraine signed the Rome Statute in 2000, it has not yet ratified the instrument. However, Nemyria argued that the asymmetrical nature of the current conflict in Ukraine has created new impetus and momentum for ratification by a newly elected Parliament, in order to counter that imbalance with international law that can help Ukraine seek accountability.

The following day, the Ukrainian Legal Advisory Group, Human Rights Watch, and the International Renaissance Foundation hosted another side event: “Accountability for Grave Crimes: the ICC and Complementarity Options for Ukraine.” This event examined the challenges, opportunities, and obstacles to pursuing justice at the national level in the context of the establishment on 21 October 2019 of a specialized office tasked with investigating war crimes and crimes against humanity by the newly appointed Prosecutor General of the Ukraine, Ruslan Riaboshapka.

Ukraine’s Deputy Prosecutor General, Gundez Mamedov, was the first to speak, providing an overview of the work of the newly established department. He noted that Ukrainian law enforcement officers and prosecutors are inexperienced in investigating war crimes and crimes against humanity. Therefore, a first step for the newly constituted office was to develop systematized methodologies and strategies for investigating these types of crimes. While important structural and methodological changes were introduced, Mamedov noted that lack of access to Crimea, difficulties questioning witnesses afraid of further persecution, political and automatic immunities, imperfect national law on international crimes, non-fulfillment of international obligations by Russia, and INTERPOL’s refusal to cooperate with investigations remained ongoing obstacles for national justice processes.

Nadia Volkova, Director of the Ukrainian Legal Advisory Group, discussed the ongoing war crimes and crimes against humanity investigations in Ukraine from a civil society perspective. In addition to the difficulties presented by Mamedov, relating to inexperience, coordination challenges, and lack of resources, Volkova noted the complexities in investigating situations that span both international and non-international armed conflicts and three diverse parties to the conflicts – Ukrainians, separatists, and the Russian Federation. She emphasized a need for very practical assistance from the international community in terms of contributing investigators, judges, prosecutors, and institutional support for investigating and prosecuting the international crimes committed in Ukraine.

Toby Cadman, Co-Founder of Guernica 37, International Justice Chambers and Former Counsel to the Chief Prosecutor of Bosnia and Herzegovina, reflected on the lessons that may be drawn from his experience supporting national justice processes in Bosnia, Bangladesh, and Kosovo. He noted the importance of international support for Ukraine, which can help bring legitimacy, security, and resource capacity to national accountability processes. He emphasized, however, that the national processes must be led by Ukrainian actors. In Cadman’s opinion, it is paramount that international actors remain supporting actors, and that the system and processes remain nationally-led so that they are able to continue their work even after international support is rolled back. From a practical perspective, Cadman emphasized that any lawyers, judges, or prosecutors offered by the international community to support the Ukrainian system should not only have international justice and domestic criminal experience, but should also come from civil law jurisdictions, as Ukraine’s legal framework is a civil law framework. Finally, he recommended that Ukraine think carefully about its timelines for international support, noting that in Bosnia and Herzegovina, a timeline of five years had been insufficient, and that the national system suffered after the withdrawal of international support.

The final panelist was Elizabeth Evenson, Associate Director of the International Justice Program, Human Rights Watch. She focused her remarks on the ICC’s role in Ukraine’s national justice processes and argued that the ICC has a meaningful role to play in supporting Ukraine’s accountability efforts. Evenson noted that the ICC could step in if political will wanes to support credible, independent investigations and prosecutions at the national level. She suggested that close interactions between the ICC in its admissibility assessments and Ukrainian national proceedings will be important to ensure that complementarity is fulfilled in a manner that secures international justice for victims. Further, the ICC can help build and fill legal and capacity gaps in the Ukrainian system to build up complementarity in a proactive manner.

Inching Towards Investigation

In 2020, the OTP plans to finalize its assessment of the admissibility of potential cases that could be the focus of a formal investigation. The Prosecutor’s recognition that this process should and will include gathering further information about national proceedings of relevance and engaging with Ukrainian authorities, civil society, and other relevant stakeholders signals the ICC’s aim to promote complementarity in Ukraine. As we enter a new decade, the Ukrainian situations present an opportunity for the ICC to explore opportunities for positive, proactive complementarity with national justice efforts being advanced in Ukraine; and for Ukraine to more fully and effectively leverage international law in its accountability processes.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Complementarity, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Ukraine and tagged . Bookmark the permalink.

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