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