Blog Post: Ukraine and the International Criminal Court

The former President of Ukraine Viktor Yanukovych’s refusal to sign the EU association agreement sparked pro-EU protests throughout Ukraine that culminated in the killings of and injuries to protesters who took to the streets to oppose government policies. In response to those dramatic events, the interim government of Ukraine, which was instituted after Yanukovych unexpectedly abandoned his presidential post, lodged a declaration accepting the ad hoc jurisdiction of the International Criminal Court (ICC) under Article 12 (3) of the Rome Statute for the crimes committed during the Maydan protests. This move by the Ukrainian government has revived the discussion on the Ukraine’s earlier failed ratification attempts of the Rome Statute stalled by the Constitutional Court of Ukraine that had declared the Rome Statute to be contrary to the Ukrainian Constitution. Several interesting legal issues highlighting the clash between Ukrainian constitutional law and international law arise. Does the acceptance of the ICC jurisdiction overrule the earlier decision of the Constitutional Court of Ukraine? Did the Chairperson of the Ukrainian Parliament have a constitutional right to sign the declaration in his capacity as ex officio Head of State, having assumed responsibilities in rather unusual circumstances when the President fled the country without properly tendering his resignation? The Article, Ukraine and the International Criminal Court: Implications of the Ad Hoc Jurisdiction Acceptance and Beyond, emphasizes that the ratification of the Rome Statute by Ukraine is particularly relevant and timely against the backdrop of the ongoing conflict in Ukraine.

The declaration lodged by Ukraine that alleged criminal responsibility of Ukrainian senior governmental officials for authorizing the Maydan violence did not have the effect the Ukrainian government hoped for. In November 2015, the ICC Prosecutor chose not to proceed with the investigation of the Maydan crimes, concluding that they did not constitute crimes against humanity in the absence of the “widespread or systematic” dimension of attack during which the crimes had occurred. The Article argues that, by taking an overly narrow approach to the interpretation of crimes against humanity, the Prosecutor largely overlooked the interests of justice and stripped the ICC judges of the opportunity to decide whether the Maydan crimes meet the threshold of crimes against humanity.

The outcome of the first declaration is not the end of the Ukrainian saga in the ICC. As a response to the annexation of Crimea by Russia and escalation of the conflict in eastern Ukraine, the Ukrainian government lodged yet another declaration that extended the jurisdiction of the ICC for an indefinite period of time beyond the Maydan events. The Article highlights some sensitive political issues linked to the second declaration that the ICC Prosecutor must grapple with in deciding whether to act on the declaration, in particular the extent of the Russian involvement in the fighting in eastern Ukraine. The Article argues that if the Prosecutor missed the opportunity to act on the second declaration, it would be detrimental to the interests of justice and damaging to the public image of the Court, which would be perceived by the victims and international community as incapable of dealing with ongoing conflicts.