The following is a guest post B. Aloka Wanigasuriya on why Ukraine has not ratified the Rome Statute of the International Criminal Court. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

The International Criminal Court (ICC) recently initiated an investigation into the situation in Ukraine. The country is now the second post-Soviet state that is both at loggerheads with Russia and the site of an ICC investigation, following the situation in Georgia, which has been under investigation since 2016. Ukraine became a signatory to the ICC’s constitutive instrument, the Rome Statute, on 20 January 2000. However, despite an ongoing lobbying campaign by Ukrainian civil society urging the ratification of the Statute as well as assurances by president Volodymyr Zelensky’s office that ratification would be one of the president’s priorities, Ukraine is yet to become an ICC state party. The question posed by many is: why?

Background: Ukraine and the ICC

The relevance of the ICC within the Ukrainian context came to the fore with respect to the alleged international crimes that were committed during the Maidan protest movement in the winter of 2013-2014. At the time, given that Ukraine had not ratified the Rome Statute, the ICC had no jurisdiction to probe the alleged crimes. Consequently, the Ukrainian government lodged two separate declarations pursuant to Article 12(3) of the Rome Statute accepting the ad hoc jurisdiction of the ICC, the first, in 2014 and the second, in 2015.

Initially, in response to the Maidan crimes, the Verkhovna Rada of Ukraine (the Ukrainian parliament) adopted a declaration accepting the ad hoc jurisdiction of the ICC, which in its temporal scope, covered the alleged crimes committed during the protests. This declaration was lodged with the ICC on 17 April 2014 and accepted the Court’s jurisdiction over alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014. Subsequently, on 25 April 2014, the ICC’s Prosecutor announced the commencement of a preliminary examination into the situation in Ukraine. However, concluding that the alleged crimes did not constitute crimes against humanity due to lack of evidence that such crimes were committed as part of a widespread or systematic attack against the civilian population, the Prosecutor decided not to proceed further with the preliminary examination into the Maidan events.

The following year, on 8 September 2015, in light of events that unfolded in Crimea and eastern Ukraine, the Ukrainian government lodged a second Article 12(3) declaration accepting the ad hoc jurisdiction of the ICC, which covered alleged crimes associated with the occupation of Crimea and the fighting in eastern Ukraine. Unlike Ukraine’s first declaration, this second declaration, which applied from 20 February 2014, had no prescribed temporal limitations. Based on this latter declaration, on 29 September 2015, the ICC Prosecutor announced the extension of the preliminary examination of the situation in Ukraine to include alleged crimes committed after 20 February 2014 in Crimea and eastern Ukraine.

Throughout the preliminary examination, Kyiv displayed a receptiveness to the ICC’s activities, with the Ukrainian government and civil society organizations furnishing the Court with relevant information regarding the conflict-related crimes. However, despite this active engagement with the Court, the process for Ukraine becoming a fully-fledged member state to the Rome Statute encountered multiple obstacles. The initial obstacle to ratification was a Ukrainian Constitutional Court decision from 2001, which found that the ICC’s principle of complementarity was in conflict with the Constitution of Ukraine. Here, the Constitutional Court found that any potential ICC involvement would be contrary to the constitutional provision which conferred exclusive competence in matters of the judiciary to the Ukrainian national courts.

To overcome this hurdle, constitutional amendments pertaining to Article 124 of the Constitution were introduced. While it took 15 years, in 2016 the Ukrainian parliament adopted the relevant changes to the Constitution in order to allow for the jurisdiction of the ICC to be applicable to Ukraine in the event of the Rome Statute being ratified. The amendments came into force on 30 June 2019. The three-year delay between the amendments and entry into force has been linked to a strategic move by Ukrainian parliamentarians to postpone ratification of the Rome Statute until after the parliamentary elections of 2019 (see: Iryna Marchuk pg. 379). However, despite president Zelensky’s Servant of the People party securing a landslide victory in the elections and enjoying a parliamentary majority, no move was made to initiate the Rome Statute ratification process – a fact that has baffled some Ukrainian civil society representatives.

In December 2020, when the former ICC Prosecutor Fatou Bensouda issued a statement announcing that the statutory criteria for opening an investigation into the situation in Ukraine had been met, the news was welcomed by Ukraine. Subsequently, in October 2021, following a meeting with the ICC Prosecutor, the Prosecutor General of Ukraine Iryna Venediktova opined that ratification of the Rome Statute was “crucial” for Ukraine as it would “demonstrate that we trust the justice we seek.” Ukrainian civil society too has been outspoken in urging the government to ratify the Rome Statute with NGOs such as the Ukrainian Legal Advisory Group (ULAG) launching a campaign promoting ratification. Despite such campaigns, prior to the recent escalation of the Russia-Ukraine conflict, some Ukrainian civil society representatives predicted that the Rome Statute would never be ratified.

The Reasons for Ratification Resistance

Ukraine’s hesitance to ratify the Statute is attributed to the politicization of the issue of ratification by certain domestic actors, a misguided understanding of the operation of the principle of complementarity, and a misinterpretation of the ICC’s functions. Prior to 2022, empirical research conducted in connection with my PhD project revealed that some Ukrainian politicians and citizens fear that ratifying the Statute would lead to the prosecution of Ukrainian soldiers by the ICC. Such arguments appear to stem from a deep misunderstanding regarding the operation of the ICC’s jurisdictional parameters, as Ukraine has already accepted the ad hoc jurisdiction of the Court pursuant to its Article 12(3) declarations, which enable the ICC to probe alleged international crimes (with the exception of the crime of aggression) committed by any party to the conflict.

In addition, in the Ukrainian context, the non-ratification of the Rome Statute may also be tied to a lack of political will. The fate of a domestic piece of legislation, the draft law on the implementation of international criminal law (ICL) and international humanitarian law (IHL) into Ukrainian legislation (Bill 2689), provides some evidence for this. The draft law seeks to remedy the absence (with the exception of a few imperfect provisions) of provisions criminalizing international crimes in the Criminal Code of Ukraine (CCU), which poses obstacles for the work of Ukrainian national authorities when correctly qualifying conflict-related crimes for initiating domestic investigations and prosecutions. While this draft law was approved by the Ukrainian parliament in May 2021, nearly a year later, it still remains unimplemented due to the lack of the Ukrainian president’s signature of approval. Such delays display a lack of political will and urgency in implementing legislation that counteracts impunity for the commission of international crimes. The Ukrainian parliament’s failure to adopt a specific law on ratification of the Rome Statute, despite the Zelensky administration’s previous parliamentary majority, also signals the lack of political will to take decisive action that would have sent a clear signal of the Ukrainian government’s trust in the ICC and in international criminal justice.

With the ICC already having jurisdiction to investigate and prosecute alleged international crimes that have been or are being perpetrated on its territory, vis-à-vis Ukraine’s Article 12(3) declarations, it is also true that ratification would not entail any substantial added practical benefits for Ukraine. Hence, prior to 2022, some Ukrainian civil society representatives opined that ratification would merely serve as a symbolic gesture. Moreover, due to the fact that the ICC can potentially only conduct a limited number of prosecutions of high-level perpetrators and given the length of time such processes entail, national focus may also have been previously directed towards investing in domestic capacity building with the aim of conducting national prosecutions, over prioritizing the ICC. Here, an additional factor also needs to be considered. Should Ukraine become a fully-fledged member state to the Rome statute, it would have to begin making contributions to the Court’s budget. Symbolic value regarding its commitment to the Court and to international criminal justice aside, for a nation that is currently embroiled in a raging conflict with a powerful adversary, incurring such added expenses may appear to be less than ideal.

Impact of Recent Events

The recent escalation of the Russia-Ukraine war has generated the result of multiple states supporting Ukraine’s yearning for justice pursuant to international criminal law. This led to the referral of the situation in Ukraine to the OTP by an unprecedented 41 ICC States Parties, triggering the immediate initiation of an investigation into the situation. Ukraine appears to be banking further on international criminal justice by urging the creation of a separate special criminal tribunal for the punishment of the crime of aggression committed against Ukraine. Given Ukraine’s reliance on international criminal justice, it is peculiar that it has not taken steps to becoming a fully-fledged state party to the Rome Statute by undertaking the process of ratification. The present international armed conflict with Russia may pose numerous practical challenges for the process of ratification. However, given the recent initiation of the ICC investigation into the situation, ratifying the Rome Statute will send a clear message of Ukraine’s commitment to the ICC, its pursuit of international criminal justice on behalf of victims and its stance against impunity.