Ukraine accepts International Criminal Court jurisdiction yet still doesn’t ratify Rome Statute
While still not simply ratifying the Rome Statute, Ukraine has, for the second time, accepted the International Criminal Court’s jurisdiction to investigate possible war crimes committed since Russia’s invasion and annexation of Crimea and the military conflict in Donbas. While the caricature above clearly indicates whom Ukraine accuses, the ICC’s jurisdiction is accepted with relation to any acts, including potentially any committed by Ukrainian forces.
The declaration was submitted to the ICC Registrar on Sept. 8. The ICC explains that the declaration was lodged under article 12(3) of the Rome Statute which enables a State not party to the Statute to accept the exercise of jurisdiction of the Court.
This is the second declaration under article 12(3) of the Statute lodged by Ukraine. On 17 April 2014, Ukraine lodged a declaration under the same article accepting the jurisdiction of the ICC over alleged crimes committed on its territory from 21 November 2013 to 22 February 2014.
The ICC may now exercise jurisdiction over possible crimes that might have been committed in the context of the situation since 20 February 2014. The fact that ICC jurisdiction is accepted, the Court notes, “does not automatically trigger an investigation. It is for the ICC Prosecutor to decide whether or not to request the judges’ authorisation to open an investigation, if the Prosecutor considers that the information available to her establishes the existence of a reasonable basis to open an investigation. If an investigation is opened, it will also be for the ICC Prosecutor to decide, on the basis of the evidence collected, whether to ask the ICC judges to issue arrest warrants or summonses to appear for persons charged with the commission of crimes falling under the ICC’s jurisdiction.”
The following were arguments presented here in January after a missile attack by Kremlin-backed militants killed at least 30 civilians in Mariupol.
According to well-known lawyer Mykola Siryi, “as of Jan 24, 2015 there are all the signs that an aggressive war is being waged against Ukraine in the understanding of international criminal law (including judgments from the Nuremberg and Tokyo Tribunals). In Ukraine it is no longer only crimes against humanity that are being committed. What is happening has a name: war crimes. Enough of cluttering information channels with ‘weak’ arguments about the sufficiency of anti-terrorist operation [ATO] status. It is an aggressive war that international criminals are waging against our country. The Ukrainian public must demand that in the coming days the government formulates and issues a public statement regarding the aggressive war being waged against Ukraine; the fact that there is an international armed conflict underway in Donbas with war crimes being committed.”
Article 8 of the Rome Statute specifies that the International Criminal Court shall have jurisdiction in respect of war crimes, namely grave breaches of the Geneva Conventions of 12 August 1949, including: (i) Wilful killing; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; as well as other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts, including (i) intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; or (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.
The NATO Secretary General’s statement spelled out the degree of Russian involvement, stating that:
“For several months we have seen the presence of Russian forces in eastern Ukraine, as well as a substantial increase in Russian heavy equipment such as tanks, artillery and advanced air defence systems. Russian troops in eastern Ukraine are supporting these offensive operations with command and control systems, air defence systems with advanced surface-to-air missiles, unmanned aerial systems, advanced multiple rocket launcher systems, and electronic warfare systems”.
It is effectively only Russia who is denying that the Buk surface to air missile carrier which downed the Malaysian airliner MH17 on July 17 came from Russia. It must have been provided with instructors who did their job accurately enough for the militants to boast to Russian TV Life News that they had downed a Ukrainian military personnel carrier, but not enough for the latter to distinguish between that and a passenger plane. Russia has blocked the creation of an international tribunal to investigate the downing of the plane.
Ukraine’s legislators need to add one simple, technical, sentence to the Constitution enabling parliament to ratify the Rome Statute, with this needing a constitutional (two-thirds majority). One of the reasons sometimes cited for the failure to do so is concern about Russia’s counter-claims. It is surely safe to assume that the ICC would fully understand the worth of recent statements from Russia’s Investigative Committee about Ukrainian Prime Minister Arseny Yatsenyuk, regarding Russia’s supposed ‘universal jurisdiction’ and the criminal proceedings against Nadiya Savchenko and other Ukrainians held prisoner in Russia
Since Ukrainian legislation does not have mechanisms for investigating crimes committed on territory under Russian-backed militant control, any investigations need to be passed to the International Criminal Court. The ICC has confirmed that acceptance of jurisdiction is allowed under Article 12(3) of the Statute, so in principle lack of ratification is not an obstacle. On the other hand, with Russia waging a very ugly undeclared war against Ukraine, it is surely time to take that final step and demonstrate that, unlike Russia which has also not ratified the Rome Statue, Ukraine has nothing to fear.