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  Why the International Criminal Court Can Contribute to Solve the “Ukraine Crisis”

By Valentyna Polunina and Andreas Umland
2016 11 10

The Case for Kyiv’s Ratification of the Rome Statute

Since the beginning of Russia’s invasion of Ukraine, the idea of enlisting the help of the International Criminal Court (ICC) in The Hague to punish those responsible for Moscow’s seizure of Crimea and the Donbas region has become popular in Ukrainian political discourse. This aspiration is but one expression of the willingness of many Ukrainians to let international organizations take a prominent role in their state’s domestic issues. That approach is in stark contrast to Moscow’s increasingly dualistic approach to foreign organizations and treaties, according to which international and domestic law spheres are treated as two separate areas. In spite of its monistic Constitution, Russia draws an increasingly sharp line between her domestic legal sphere, on the one hand, and her international agreements, on the other. The Kremlin sees Russia’s multilateral contractual obligations, or its commitments within international institutions it has entered not any longer as immediately relevant to Russian internal affairs.

In contrast to this approach, Kyiv follows, in its foreign affairs practice, a monistic approach, and has thus become more and more ready to accept intervention into its domestic affairs by international institutions. These include the European Union, Organization for Security and Cooperation in Europe, European Court of Human Rights (ECtHR), and International Criminal Court (ICC). As with the EU and OSCE, Kyiv hopes that the ICC will help Ukraine restrain and punish Russia with regard to its military actions in Crimea and the Donbas.

At the same time, the ICC’s function, role and mechanisms are often misunderstood in Ukraine. Political leaders, including president Poroshenko, like to publicly invoke “The Hague” as a judicial instance of last resort. They do so, above all, when talking about criminal responsibility of the Russian leadership, separatist militants, and those responsible for the killings during the Euromaidan protests. Yet the frequent vague references to the ECtHR (“Strasbourg”) or ICC (“The Hague”) indicate a lack of comprehension about the role and mandate of international justice institutions.

To begin with, the ICC does not usurp the role of national courts in prosecuting international crimes, such as genocide, crimes against humanity, and war crimes. If a state is unable or unwilling to take legal action, the ICC can step in and prosecute wrongdoings punishable by international law. Yet there is a widespread misperception in Ukraine that the ICC will do all the work of the Ukrainian national authorities for them. Moreover, the ICC usually focuses only on high-ranking perpetrators of crimes against international law. It does not have the resources to deal with the much large number of rank-and-file offenders. Likewise, the ICC only considers the guilt of individual offenders and is not a venue for establishing state responsibility for crimes. Also contrary to the desire of the Ukraine public for swift justice, trials conducted by the ICC are costly and time-consuming endeavours.

Last but not least, Ukraine is not a party to the ICC’s Rome Statute, which specifies the Courts functions, jurisdiction and structure. Only those states that have ratified it – currently 124 in total – are full members of the ICC. Despite the fact that ratification was one of the EU’s stipulations for signing its Association Agreement with Ukraine, Kyiv has still not fully ratified the Rome Statute. While the Ukrainian government did sign the Rome Statute in 2000, the Ukrainian Constitutional Court ruled a year later that the Statute was unconstitutional. Most recently, the Ukrainian parliament has voted to postpone ratification by another three years.

On the basis of two declarations issued in 2014 and 2015, the Ukrainian government has granted the ICC ad hoc jurisdiction over all international crimes that have taken place on Ukrainian territory since 21 November 2013. Ukraine’s acceptance of the ICC’s jurisdiction does, however, not yet mean that the Court will automatically undertake investigations in those areas important to Ukraine. These include instances of armed violence during the Kyiv uprising in early 2014, or during Russia’s annexation of Crimea in spring 2014.

For instance, a preliminary analysis issued by the ICC Prosecutor’s Office in November 2015 found that the criteria established by the Rome Statute for the opening of an investigation were not met with regard to the acts of violence committed during the Euromaidan protests. This means that, until more evidence is received, there will be no formal investigation of the Maidan events. Nevertheless, the ICC Prosecutor still intends to look into the crimes committed elsewhere in Ukraine, including Russia’s military interventions on the Crimean peninsula and in the Donets Basin.

Despite numerous appeals from civil society and the international community, Kyiv is still reluctant to ratify the Rome Statute. It instead prefers to call on the ICC selectively when it sees an opportunity in the ongoing propaganda war between Ukraine and the Russian Federation. Statements by members of president Poroshenko’s party and the Council on Security and Defence demonstrate not only a lack of political will, but a poor grasp of international criminal justice mechanisms. Thus a member of Ukraine’s parliament Supreme Council recently complained that a draft law on the ratification of the Rome Statute was being blocked by the Parliamentary Committee on Legal Policy and Justice, headed by a deputy from the presidential Petro Poroshenko Bloc. He alleged that president Poroshenko was not interested in ratifying the Statute of the International Criminal Court for fear of being held responsible for Ukrainian military casualties incurred due to his incompetent leadership.

A more plausible (and official) reason for Kyiv’s reluctance is that Ukraine risks too much by becoming a full party to the ICC while at war. Kyiv fears that it would expose itself to Russian legal harassment in the ICC. This assumption is not without merit: in the aftermath of the Russian-Georgian War of 2008, Tbilisi became the target of a wave of frivolous Russian lawsuits filed in the Court at The Hague. Human rights activists suspect that Poroshenko’s various Georgian advisors are responsible for his reserved attitude towards ratification of the Rome Statute. But the negative consequences of Georgia’s ratifications of the Rome Statute may be overestimated in Ukraine. Although Russian organizations submitted numerous complaints with lots of paper to the ICC, the Court has not sided with Russia.

The newly-appointed Chief Prosecutor of Ukraine, Yuri Lutsenko, has announced that full ratification will follow the end of hostilities. In his words, "Now we have to fight and not go to court and collect evidence.” Yet, this approach may entail that international crimes will not being properly documented by Ukrainian national authorities. Ukraine thereby risks repeating mistakes made by the Georgian authorities, who left the task of evidence collection mostly to NGOs. Although the Ukrainian Prosecutor’s Office has cooperated with the ICC, the quantity and quality of information that has been provided is not comparable to the information provided by local and foreign NGOs.

Another possible reason for the reluctance to ratify the Rome Statute is the Ukrainian government’s fear of upsetting nationalist groups in Ukraine. Tensions between the Ukrainian state and volunteer units commanded by right-wing activists could, in turn, jeopardise the peace process. Proposed changes to the Constitution and the prosecution of marginal radical rightists already provoked violent protests at Kyiv in 2015. The potential prosecution of Ukrainian military personnel who are seen as heroes and patriots could destabilise an already unstable situation in Ukraine. The Deputy Head of the Presidential Administration has voiced his concern that “recognition of the jurisdiction of the International Criminal Court will have certain potentially positive effects as well as some risks for Ukraine, particularly for the Ukrainian military servicemen who are forced to participate in a military conflict.”

And yet, without ratifying the Rome Statute, Ukraine cannot indefinitely request help from the ICC on a piecemeal basis. Even worse, Ukraine has put itself into an awkward position by involving the Court. After a respective Ukrainian government declaration, the ICC already has full jurisdiction over any international crimes committed in Ukraine after 21 November 2013 – the beginning of the Euromaidan. Yet, not having ratified the Rome Statute, Ukraine does not enjoy all the privileges of a member state. Nor will the current delay in ratifying the Statute protect Ukrainian army personnel, since the ICC already has the ability to bring charges against Ukrainian servicemen under the terms of Ukraine’s partial recognition of its authority. Kyiv’s delay of the ratification of the Rome Statute therefore does little more than generate an international misperception that Ukraine has something to hide. For these reasons among others, Ukraine should follow its otherwise generally monistic approach to international law also with regard to the ICC and fully ratify the Rome Statute as soon as possible.

Valentyna Polunina is a doctoral candidate at the University of Heidelberg and Research Fellow at the International Nuremberg Principles Academy.

Andreas Umland is Senior Research Fellow at the Institute for Euro-Atlantic Cooperation in Kyiv, and General Editor of the book series “Soviet and Post-Soviet Politics and Society” published by ibidem Press in Stuttgart, and distributed outside of Europe by Columbia University Press.

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