High time for Ukraine to ratify the Rome Statute of the ICC

Ukrainian Legal Advisory Group

From 10-11 June 2019, the Ukrainian Legal Advisory Group (ULAG), Global Rights Compliance (GRC) and the International Renaissance Foundation (IRF) organized a conference in Kyiv, entitled “Accountability for Grave Crimes in Ukraine: the ICC and Complementarity Options for Ukraine”.

Nadia Volkova, ULAG’s Director, shares her views on the situation

It has been nearly two decades since Ukraine signed the Rome Statute, expressing its intention to join the International Criminal Court, in 2000. However, a year later Ukraine’s Constitutional Court, misinterpreting and shunning away from all the responsibility that the potential ratification carried, declared the Rome Statute incompatible with the Constitution of Ukraine where it “complemented national jurisdiction”. Typically, it was a standard behaviour of young democracies to feel its recently gained independence begin threatened. Ukraine then was only 10-years-old as an independent of the USSR state. Leaders then did not want an extra layer of scrutiny on how they ruled the country, and saw a threat to their power to decide on accountability that would or would not exist. They were not interested in giving someone else the control and influence or judge their decisions and actions. Thus, for another 15 years, ratification of the Rome Statute was stowed away until a very real and a serious dilemma presented itself.

That dilemma was a war waged by the Russian Federation against Ukraine at the beginning of 2014. In the grand scheme of a geopolitical move, the war –regarded as an audacious and aggressive move, was least expected by the people of Ukraine that left them discombobulated for many years. By then Ukraine, due to its numerous weaknesses and external political and economic demands, chose to respond to the Russian onslaught not only militarily. Ukraine had never hoped to engage in a fair war as it had a barely existing, weak and massively understaffed and underequipped army, and no powerful allies were willing to go head to head with one of the most powerful armies in the world. However, quite a few powerful allies were willing to support Ukraine in employing alternative warfare methods as diplomatic, economic and legal.

Employing the entire arsenal of its legal warfare options, Ukraine once again turned to the Rome Statute and the ICC.  However, even 15 years later a full understanding of the provisions of the Rome Statute and the ICC, how it was applied and operated, had never come to the Ukrainian decision-makers.

(Jurisdiction of the International Criminal Court: Ratification of the Rome Statute or Declaration under Article 12(3)? )

The lack of such understanding was glaringly obvious in the language used in the two declarations (as per article 12.3 of the Rome Statute) accepting the ICC’s jurisdiction over the alleged crimes committed in the territory of Ukraine. The second Declaration pertaining to the alleged crimes committed in Crimea and eastern Ukraine follows the resolution adopted by the Verkhovna Rada (Ukrainian Parliament)  “On the recognition of the jurisdiction of the ICC’s by Ukraine over crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of terrorist organisations “DPR” (Donetsk People’s Republic) and “LPR” (Lughansk People’s  Republic) which led to extremely grave consequences and mass murder of Ukrainian nationals”.

Such wording although conceptually inaccurate and misleading, it was fully intended. Ukrainian leaders thought that they could ask the ICC to investigate actions of one side but not their own. But by the time the declarations were submitted, the jurisdiction accepted, and the preliminary examination of the situation in Ukraine had already been opened by the ICC’s Office of the Prosecutor. It was too late for the Ukrainian leaders to retract: politically it would have been seen as a suspicious and controversial move and victims would have felt deceived and lied to by their own state in time of war. Therefore, the issue of trust was still at stake following the revolution of dignity. In addition, from the global order perspective, with Russia being implicated in the conflict and high demand for justice to be served, the opportunity to bring it to accountability would have unlikely been dismissed.

Considering all of the above and being under pressure from victims and civil society to ratify the Statute, in 2016 Ukrainian Parliament adopts an amendment to article 124 of the Constitution of Ukraine, which although does not fully extinguish the possibility of ratification, it effectively delays it until 30 June 2019, thereby taking pressure and the heat off of itself for another three years.

In the next three years that follow various myths about what joining the ICC would mean for Ukrainian soldiers who fought at the front lines and defended their motherland from the vicious enemy mean, i.e. that they inevitably would end up in the Court’s dock. Such myths were planted into the heads of many, thereby creating an obstacle among the decision-makers for Ukraine’s ratification of the Rome Statute.

Undoubtedly, the moment will come when Ukraine will inevitably have to ratify, it is after all one of the demands of the EU codified in the Ukraine-EU Association Agreement.  It is simply a question of when. The answer is obvious to many but naturally not the decision-makers: the sooner, the better!

Ukraine, It's time to ratify!

There is a basic level of facts that Ukrainian authorities and decision-makers need to understand: the situation in Ukraine is already under the Office of the Prosecutor’s (OTP) preliminary examination, phase 3 –admissibility - the final phase before the ICC’s Prosecutor may decide whether to open a full investigation; actions of all parties to the conflict, i.e. Ukrainian officials, separatists’ leaders and Russian officials would inevitably be investigated. Ukraine has all the obligations to cooperate with the ICC but none of the rights: no right to participate in the elections of the Courts’ officials. Thus, no right to its representatives and judges, no right to form and influence its agenda, it cannot benefit from the Assembly of State Parties' (ASP) membership; it cannot make referrals for investigations. And then, there is the crucial question of status: does Ukraine consider itself to be an active member entitled to the rights or is it simply an object with no voice and willpower? It does not sound like Ukraine got itself a very profitable deal, but there is still room for improving the terms.

On the one hand, stalling is futile and even damaging especially as far as missed opportunities are concerned: for instance, the possibility to take part in the negotiations pertaining to the Kampala amendment on the crime of aggression, as one of the very few current victims of such crime. On the other hand, it is not entirely unexpected: the conflict is ongoing and while the leadership of the country was in power, they feared and would have done everything to avoid any kind of accountability.

But the political wind is changing. With the new President and the new parliament in place, hopefully, there are also new opportunities opening up which will allow Ukraine to finally do some growing up to become a truly independent, self-contained and responsible state by demonstrating real actions, rather than making rounds of empty declarations. As frightening as owing up can be, it is an integral part of responsibility which one way or the other, anyone involved in the war is faced with a various degree, but ultimately, living in awareness far outweighs living in fear. Therefore, ratification of the Rome Statute should be one of the first real action taken by new Ukraine’s leadership which should not and cannot be hindered by the fear of responsibility.

(Correction: Parliamentary elections were held on 21 July 2019)

Image Credit: ULAG

The Court is not without its problems. As a global institution with its performance being currently questioned by many, there is a possibility that it will be undergoing a review process, which in case Ukraine fails to ratify the Rome Statute soon, will be another missed opportunity to become a part thereof.  Nevertheless, the truth of the matter is: the world, as we know it, needs it. By joining the ICC, Ukraine would not only make a powerful commitment to global justice and send a strong message to its adversaries (which would be particularly important in light of the recent developments in the Parliamentary Assembly of the Council of Europe) but it will also become a part of the global movement to combat impunity, all the while putting safeguards in place against current and future attacks upon itself.  

So, whose ranks will Ukraine ultimately choose to follow: the European Union or the likes of Russia and Belarus?

The decision to ratify the Rome Statute would be an ultimate testament to its real choice. 

On 30 June, the Human Rights Agenda NGO platform issued a statement to mark the expiration of the three-year postponement period of the ICC Rome Statute ratification and called on all political forces to enter the new Parliament after the 21 July elections to make sure that Ukraine ratifies the Rome Statute now.

How can ICC help Ukraine investigate crimes in Crimea and Donbas?