I recently had the opportunity to write an op-ed for the Moscow Times on the potential investigation of recent events in Ukraine by the International Criminal Court (ICC). Will the ICC intervene in Ukraine? If so, would former President Viktor Yanukovych ever face prosecution or will Russia shelter him from accountability? What would an ICC intervention mean for the (very) tense relations between the ‘West’ and Russia?
The ongoing crisis in Ukraine has been fuelled by speculation concerning the murder of protestors on Kiev’s Maidan Square during pro-European Union demonstrations. Broadly speaking, supporters of Ukraine’s turn west have accused police snipers. Those in favour of closer ties to Russia, meanwhile, have said far-right anti-Russian provocateurs, hoping to discredit the then-government, were responsible.
Lost in this turmoil are objective answers about who was responsible for the violence on Maidan and whether or not they will be ever be held to account.
Following a request from the Ukrainian parliament, the International Criminal Court, or ICC, opened a preliminary investigation into alleged crimes committed in Ukraine between 21 Nov. 2013 and 22 Feb. 2014. These dates mark the beginning of protests on Maidan and the Ukrainian parliament’s vote to oust pro-Russian President Viktor Yanukovych.
Of course, the ICC’s involvement does not mean that any conclusion about the violence on Maidan will be reached soon.
Opening a preliminary investigation does not, in itself, mean that the court will open an official investigation — let alone issue arrest warrants. Some situations, like the war in Afghanistan or the conflict in Colombia, have toiled for years in the judicial purgatory that is the ICC’s preliminary investigation list.
Moreover, the time-period that the ICC can investigate essentially restricts the court to investigating alleged crimes on the Maidan Square in Kiev. If prosecutors find that the time-period referred to the ICC was intended to narrow the court’s focus against specific parties, namely former President Viktor Yanukovych and his cronies, then the ICC can and should decide not to proceed. Prosecutors may also fear intervening whilst fragile negotiations between the West and Russia over Ukraine’s future are ongoing.
States tend to believe that when they refer themselves to the ICC, they are, in fact, referring their adversaries. While the history of one-sided prosecutions by the ICC in Uganda, the Central African Republic, Libya and elsewhere give credence to their thesis, there is nothing to prevent the ICC from targeting all sides of a conflict.
If ICC prosecutors do proceed, it is hard to imagine that Yanukovych could possibly escape scrutiny. He is, in the eyes of many, the top-prize for justice in Ukraine, accused by some of ordering the police to open fire on the Maidan protestors. The trouble is, after fleeing Kiev and seeking refuge in Russia in late February, Yanukovych is no longer within easy reach. Would Moscow ever hand over their former political proxy? Or is Yanukovych destined to be a fugitive from justice, protected by his Russian patrons?
In the midst of mudslinging rhetoric between the West and Russia over Ukraine and Syria, it may be tempting to believe that Moscow is inherently opposed to an ICC intervention in Ukraine. U.S. Ambassador to the UN Samantha Power recently placed the blame over the failure to refer Syria to the ICC as well as the selectivity of international justice squarely at the feet of the Kremlin. If we are to believe the hype, big bad Russia is a major obstacle to achieving international accountability. Continue reading














