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Can the International Criminal Court Restore Fairness for Ukraine?

Can the International Criminal Court Restore Fairness for Ukraine?

We should remember the 11th of December 2020 as one of the key dates in the Ukraine-Russia judicial battle. Remarkably, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has announced the conclusion of the preliminary investigation of the situation in Ukraine. This announcement became the starting point for the opening of the full investigation concerning all serious crimes committed in the context of "Maidan protests", conflicts in Donbas and Crimea. However, there is a bit of joy when one of the parties in proceedings, such as Russia, is already posing impediments to effective inquiry into the situation in Ukraine.

Background of the investigation

The story of Ukraine-Russia confrontation before the ICC takes roots in 2014. From that date, the Office of the Prosecutor made remarkable conclusions regarding the situation in Ukraine that should be analyzed. These conclusions were welcomed by many non-governmental organizations, such as Amnesty International and by the Government of Ukraine. The Deputy General Attorney of Ukraine remarked that the Prosecutor's decision will contribute to identifying persons who should hold responsibility for all crimes committed in the Crimea and Donbas. Additionally, the Head of Amnesty International in Ukraine, Oksana Pokalchuk, welcomed the decision of the Prosecutor. She acknowledged that such "a decision serves as a sign of prospect for all the victims who have been waiting that all responsible for these terrible crimes to be brought before courts".

Ukrainian soldiers after being captured in the East of Ukraine, 2014. Source: REUTERS.

Notice that Ukraine has not ratified the Rome Statute of the ICC, which grants the ICC the jurisdiction to investigate cases. Notwithstanding non-ratification, Ukraine submitted declarations under article 12(3) of the Rome Statute accepting the ICC jurisdiction on an ad hoc basis. Mainly, Ukraine referred declarations to investigate crimes committed in the context of "Maidan" protests, events in Crimea and eastern Ukraine. From 2015, the Prosecutor issued annual reports on results of preliminary investigations regarding the situation in Ukraine. Finally, on the 11th of December 2020, the Prosecutor issued the final report on the preliminary investigation and closed this stage of proceedings.

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However, as is always in the case, one bad apple spoils the barrel. To put it simply, the ICC may face a wave of obstacles in its work. Nevertheless, the Office of the Prosecutor has already formulated a strategy for effective investigation of the situation in Ukraine.

The critical point of the Prosecutor's announcement

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda. Source: AP.

The Prosecutor issued the most expected statement that there are reasonable grounds to conclude that war crimes and crimes against humanity have been committed on the territory of Ukraine. The Office of the Prosecutor divided these crimes into three main categories:

The findings signify that the situation in Ukraine falls within the subject-matter jurisdiction of the ICC that encompasses the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Therefore, the Office of the Prosecutor will be able to request the Pre-Trial Chamber of the ICC to launch the full investigation. The rationale behind such a request is the inability or unwillingness both of Ukrainian and Russian authorities to prosecute the persons who allegedly committed the crimes mentioned above. Contrary to this statement, the Deputy General Attorney of Ukraine states that Ukraine is investigating cases of foreign nationals' participation in the Donbas conflict. Even so, the number of open investigations is deficient compared to the number of crimes committed.

Difficulties on the way

However, the situation is not as simple as it seems to be. The Prosecutor mentioned several issues that may affect the effectiveness of the investigation in Ukraine. Some of them relate to the workloads of the Office of the Prosecutor and also to the challenges brought by the COVID-19 pandemic. Nevertheless, the Prosecutor stated that she will ensure the integrity of investigations in the context of Ukraine's situation.

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Apart from challenges that already have arisen on the stage of full investigations' opening, we should analyze problems that will undoubtedly occur on the stage of the proceedings before the ICC. The Prosecutor concluded that all the parties to the conflict in Ukraine relate to the commission of the alleged crimes. That is a crucial point. It should be borne in mind that neither Ukraine nor Russia is parties to the Rome Statute. Although Ukraine accepted an ad hoc jurisdiction of the ICC and declared its willingness to cooperate with the ICC, the question still may arise: whether Ukraine will surrender its own high officials upon the ICC's request? There is no simple answer to this question since Ukraine has not ratified the Rome Statute for a reason. The Government relies on the decision of Ukraine's Constitutional Court, which declared that the Rome Statute is incompatible with the Constitution of Ukraine. However, the real rationale behind non-ratification lies in threats of Ukrainian leaders to be held responsible for the ways they govern Ukraine.

Two men are looking into the broken window in Donetsk apartment, 2014. Sources: Getty Images/Washington Post.

Also, the situation is complicated by the fact that Russia does not recognize the ICC's jurisdiction and is unwilling to cooperate with the ICC. This situation may affect the execution of the ICC's warrants for the arrest of Russian high officials. There is an opinion that nothing will stop the ICC from prosecuting the non-State Party's officials. That can be explained by the fact that the ICC is an international criminal court that exercises its jurisdiction on behalf of the international community. Unfortunately, there is already the practice of non-compliance with the ICC's warrant for the arrest of the non-State Party's president. For instance, State-Parties to the Rome Statute refused to surrender Mr. Al-Bashir (already former president of non-State Party – Sudan) despite the existence of the ICC's warrant for arrest and resolution of the Security Council to arrest Mr. Al-Bashir. These State-Parties emphasized that they believe in the full immunity of the high officials under customary international law, and therefore, they will not execute the ICC's warrants. Bearing in mind Russia's political status on the international arena, the only thing remaining is hope that the argument of the high officials' full immunity for non-compliance with the ICC's warrants will not arise during the investigation of the situation in Ukraine.

Further steps in the investigation

Based on its preliminary reports, the Office of the Prosecutor will submit requests to the Pre-Trial Chamber of the ICC to open the full investigation. The Chamber will consider the necessity of opening the full investigation and review the reports from the preliminary examinations. In case of a positive decision, the Pre-Trial Chamber will authorize the Prosecutor to start the full investigation. Despite the end of Fatou Bensouda's term as the Prosecutor, she expressed an intent to support the integrity of the investigation with the situation in Ukraine. That means that the investigation remains the key priority for the ICC despite the change of the Prosecutor. All the victims of this Ukraine-Russia conflict are expecting that all responsible will be brought to justice for all the atrocities they committed. These expectations should serve as a reminder for the new Prosecutor during the fight for fairness with such an opponent as Russia.

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There is no doubt that the opening of the full investigation regarding the situation in Ukraine is a crucial event for all the people of Ukraine. Moreover, the ICC's proceedings may facilitate the ratification of the Rome Statute by Ukraine. This step of the Rome Statute ratification will signify that Ukraine is ready to prosecute both foreign and its own political leaders who should hold responsibility for crimes committed.

The only concern that impacts the inquiry is Russia's attitude to the situation in Ukraine and the ICC's proceedings overall. That is why the ICC should develop a strategy of effective proceedings despite Russia's attempts to undermine them. As was mentioned above, the ICC has already faced the opposition of African states to surrender Mr. Al-Bashir due to his immunity under customary international law. Notice that there were States from the African region. It is evident that no one divides states into more civilized and less civilized. Nevertheless, the idea of bringing perpetrators to justice is much more prevalent in the European region than in the African. That is why the ICC should call all the State Parties to the Rome Statute, especially of the European region, to cooperate with the ICC, prosecute and surrender all guilty in Ukraine-Russia conflict persons.

Author – Valeriia Yakimova, Kyiv-Mohyla Academy (Ukraine), Degree in Law

Main image: hwr.org