Ukraine: Deter grave crimes by joining ICC

Ukraine can deter the commission of grave crimes in its eastern conflict by becoming a full member of the International Criminal Court (ICC), the Coalition for the ICC said today. 

Ukraine is the March focus of the Coalition’s Campaign for Global Justice, which encourages states to join the ICC Rome Statute — the founding treaty of the only permanent international court capable of trying perpetrators of genocide, crimes against humanity and war crimes. 

In a letter sent today to President Petro Poroshenko, the Coalition urged Ukraine to ratify the Statute without delay. “Ukraine’s membership in the ICC would send a clear signal that war crimes, crimes against humanity, and genocide will not be tolerated,” said Kirsten Meersschaert Duchens, Europe regional coordinator at the Coalition for the ICC. “Ratifying the Rome Statute would also likely deter the future commission of grave crimes as perpetrators would know that they could face justice in The Hague.”

On 17 April 2014, Ukraine formally accepted ICC jurisdiction over the so-called Euromaidan events through a special ad hoc declaration. However, the timeframe is limited to 21 November 2013 – 22 February 2014. Any crimes committed outside this timeframe cannot be investigated or prosecuted by the Court – a situation that could be remedied were Ukraine to become a full ICC member.

“Those who are committed to justice cannot accept a half measure approach,” said Roman Romanov, Rule of Law Program Director at the International Renaissance Foundation in Ukraine. “Ratification of the Rome Statute is the only way to ensure that impunity for the worst crimes ends and justice won’t be selective.”

Eastern Ukraine has been wrought by conflict since early 2014, with armed rebel groups facing off against Ukrainian military forces in several regions. There have been reports of grave crimes which could amount to war crimes or crimes against humanity under international law.

On 12 February 2015, France, Germany, Russia and Ukraine agreed a new ceasefire to prevent further escalation of the conflict. However, the agreement provides for immunity from prosecution for those who allegedly committed crimes in the Donetsk and Lugansk regions.

“Putting an end to the conflict, which has been going on almost a year, should be priority for all sides involved. However, the truth process has to be handled in a way so as not to override the interests of justice,” said Simon Papuashvili, projects manager of the International Partnership for Human Rights (IPHR). “The inclusion of an immunity clause in the truth agreement is a worrying sign. It must not in any circumstances prevent prosecutions of individuals who allegedly committed crimes falling within the jurisdiction of the International Criminal Court.”

On 4 February, the Verkhovna Rada – Ukraine’s parliament – passed a resolution calling for the acceptance of the ICC’s ad hoc jurisdiction to be extended beyond 20 February 2014, without citing a specific end period. However, the President needs to submit a formal declaration with the Court for this to take effect.

“The peace negotiations must not overshadow a firm commitment to effectively hold perpetrators accountable for international crimes committed throughout the Ukrainian territory, particularly in Crimea and the Donbass region,” said Karim Lahidji, president of the International Federation for Human Rights. “In addition to full ratification of the Rome Statute, we call on the Ukrainian authorities to formally extend the ICC’s jurisdiction to include crimes committed since February 2014, in order to close the impunity gap, provide genuine redress for victims, and deter the commission of further grave crimes.” 

In 2007, Ukraine became the first non-state party to ratify the Agreement on Privileges and Immunities of the Court. The government subsequently committed to implementing all measures necessary to secure Rome Statute ratification as part of the EU-Ukraine Association Agreement signed on 27 June 2014. 

“Even if willing, Ukraine is currently unable to carry out an effective investigation into alleged crimes committed in the territories controlled by organized armed rebel forces, said Olexandra Matviichyk, Chair, Center for Civil Liberties. “Ukraine’s membership of the International Criminal Court would thus not just meet the requirements of the EU-Ukraine Association Agreement, but would also serve as a practical tool for prosecution of perpetrators of international war crimes”. 

Although Ukraine signed the Rome Statute in 2000, its constitutional court ruled in 2001 that the Statute was incompatible with the Ukrainian constitution, effectively preventing ratification ever since. However, in 2014 and again in January 2015, several members of Parliament put forward proposals for constitutional amendment to allow Ukraine to join the Court.

“The time has come for Ukraine to commit to ensuring accountability for international crimes whenever they occur,” continued Meersschaert Duchens. “ICC membership would demonstrate Ukraine’s firm support for an end to impunity, and help create a culture of deterrence so necessary for a sustainable peaceful resolution to the conflict”.