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.Continue reading