This article is part of ECFR's Wider Europe Forum
Kyiv's decision to invite ICC to investigate and prosecute war crimes in Ukraine may ward warring parties away from atrocities.
Ukraine has invited the ICC to investigate and prosecute war crimes and crimes against humanity committed on its territory since February 2014. The ICC’s jurisdiction will now cover international crimes committed during the Euromaidan protests, the annexation of Crimea and the subsequent war in eastern Ukraine. This is a major development with the potential to counter impunity, establish a trustworthy historical record, and compel the parties to show greater respect for the laws of war.
On 8 September 2015, Ukraine submitted a so-called Article 12(3) Declaration to the ICC, granting the Court jurisdiction over international crimes that have taken place on the territory of Ukraine from 20 February 2014 onwards. This follows a similar Declaration submitted by the interim government of Ukraine in the aftermath of the Euromaidan revolution, which was limited to events taking place between 21 November 2013 and 22 February 2014.
The new Declaration, made for an indefinite duration, brings the entire Ukrainian crisis within the purview of the ICC. Despite the Ukrainian Parliament’s attempt to limit the Court’s jurisdiction to the crimes of Russian nationals and pro-Russian rebels, it is understood that the Court may now investigate persons of any nationality suspected of committing war crimes or crimes against humanity on the territory of Ukraine (the crime of aggression will not be considered as, despite its inclusion in the Rome Statute, it may only enter into force after January 2017).
Ever since the annexation of Crimea and the first shots fired in eastern Ukraine in March 2014, there has been a dire need for a competent and impartial body to investigate the events and deliver the kind of justice that neither Russia nor Ukraine nor the self-proclaimed peoples’ republics are willing or able to provide. Propaganda, disinformation and political opportunism have distorted the facts on an Orwellian scale. Meanwhile, nearly 8,000 people have died and some 2.5 million have been displaced according to the UN. An investigation by the ICC represents the best chance to establish a reliable historical record and bring those most responsible for international crimes to a fair and impartial trial.
The ICC Prosecutor will now face the elephantine task of examining all available evidence, to decide whether there is a reasonable basis to believe that international crimes have been committed on the territory of Ukraine. The types of episodes that may fall within that category include the shelling of civilian areas in cities such as Donetsk, Kramatorsk and Mariupol, the use of inherently indiscriminate weapons such as cluster munitions to attack towns and villages such as Luhansk and Artemivsk, as well as the downing of Malaysian Airlines flight MH17. The ICC Prosecutor may also examine the inhumane treatment, torture and murder of civilians and combatants, and any evidence of persecution on political, religious or ethnic grounds.
The Prosecutor will also have to determine which individuals are most likely to bear the greatest responsibility for such crimes, regardless of their nationality, political affiliation or official rank. Although Russia is not a party to the ICC, any Russian national linked to crimes committed on the territory of Ukraine may fall within the ICC investigation, even if the suspect had never personally stepped foot on Ukrainian soil. The level of Russian engagement with or control over the rebel forces will also have to be examined by the Court, as this will determine whether the conflict is ‘international’ or ‘non-international’– which dictates the applicable legal framework.
Past experience has shown that the ICC will only target a handful of senior commanders and policy makers who bare the greatest responsibility for the most serious crimes – rather than going after foot soldiers and prison guards. Under the legal theory of command responsibility, this could (depending on the evidence) include those at the helm of Moscow and Kyiv’s military and civilian hierarchies, for their failure to prevent or punish crimes committed by regular troops and proxy battalions under their authority.
Having determined that international crimes have taken place, the ICC Prosecutor may then request the ICC Pre-Trial Chamber to open a full investigation, issue arrest warrants, and launch prosecutions. However, we shouldn’t expect anything to happen quickly. It may be years before an indictment is issued, let alone a verdict handed down (a pending preliminary examination of the Russia – Georgia war in 2008 is in its eighth year). The ICC will have to surmount some significant political and resource challenges along the way.
As the ICC does not have its own police force, the Court relies on the cooperation of national law enforcement to carry out its arrests. Russia is not a party to the ICC and, despite the mounting evidence of its involvement in the conflict, has no legal obligation to cooperate with the Court. Nor is there any guarantee that Ukrainian authorities will abide by their promise to provide full assistance and cooperation, especially if Ukrainian nationals are investigated. After all, it has taken the Ukrainian executive seven months to submit this Article 12(3) Declaration, first adopted by Parliament in February of this year.
So why, after so long a wait, has Ukraine decided to submit its conflict to the scrutiny of the ICC? Perhaps the Kyiv leadership was hoping for a favourable outcome of the Minsk agreement that never came? Or perhaps it has been convinced that, under the complementarity provisions in the ICC Statute, it may prevent ICC prosecution of its own officials by conducting genuine domestic prosecutions. Whatever the reasons, the Declaration is an important step towards accountability, justice and a lasting peace.
The ICC’s engagement could have a positive impact on the on-going conflict by ensuring that the warring parties execute the war within the legal parameters. The prospect of ending up in a dock in The Hague may persuade military commanders to be more careful about shelling civilian areas and the treatment of captives. The prospect of international travel restrictions, stigma and condemnation may also persuade international backers to withdraw their support.
One must recognise the crucial role of Ukrainian civil society in this equation. Reinvigorated by Euromaidan, these brave and determined individuals have been the real driving force behind the fight against impunity in today’s Ukraine. Volunteers from all regions have been delivering humanitarian aid and collecting evidence of human rights violations in places where few national or international actors have dared to venture. Lawyers and NGOs have been tirelessly lobbying government institutions to investigate crimes or accept ICC jurisdiction. The Article 12(3) Declaration is their victory; let us hope that the ICC is willing and able to live up to their expectations.
Alexandre is a partner of Global Diligence LLP. He has provided expert advice on international criminal law to non-governmental organisations investigating human rights violations and crimes in Eastern Ukraine. The results of the investigation will be presented in a report by the International Partnership for Human Rights and will be made public on 24 September 2015 in Warsaw, Poland.
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The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.