Ukrainian lawmaker Anton Herashchenko: Why does Ukraine need membership in the International Criminal Court?

Ukrainian and international experts have slammed the arguments of Anton Herashchenko, the MP from the People’s Front faction in the Ukrainian Parliament, negating the need for ratification of the Rome Statute by Ukraine.

Anton Herashchenko said that, having acquainted with the Rome Statute, he had not understood what could be useful in the Ukraine’s membership in the International Criminal Court during the armed conflict with Russia.

“I cannot still understand how the statute can help us to bring to justice the Russian citizens, servicemen who are involved in the war of aggression against Ukraine. Russia has not ratified this document and will not ratify it. Accordingly, we will not be able to require a surrender of the Russian servicemen or citizens who committed terrible crimes in the territory of Ukraine,” the MP said at the round-table meeting “Implementation of the international humanitarian law and the Rome Statute of the International Criminal Court into the national legislation of Ukraine.”

He drew attention to more than 400 criminal proceedings, initiated by the Investigative Committee of Russia against the Ukrainian officials, servicemen, and fighters of the volunteer battalions. Russian investigators accuse them of “waging the war of aggression against the Russian-speaking citizens of Ukraine.”

“Tortures, executions, genocide are fabricated in these cases. According to our information, Russia is only waiting for Ukraine to ratify the Rome Statute for launching a huge campaign to hold Ukrainian servicemen liable through the ICC,” he said.

Anton Herashchenko does not rule out that a military confrontation with Russia leads to mistakes that cost lives.

“However, prosecuting for mistakes means making our country completely defenseless as nobody will want to protect Ukraine if they know they can be brought to justice for their mistakes,” the MP noted.

“I have recently studied Israel’s experience of the conduct of anti-terrorist operations. The Israelis have to involve the armed forces of the intelligence agencies to annihilate the terrorists. These raids often kill civilians, including the families of terrorists. If Israel had ratified the Rome Statute, the country would not have been able to protect the nation from the constant attacks,” Anton Herashchenko said, asking why the Rome Statute has not yet been ratified by the United States, Israel, China, and India.

“Because each country has the sovereign right to ratify or not to ratify a particular document,” Volodymyr Vasylenko, the ex-judge of the International Criminal Tribunal for the former Yugoslavia, explained.

“Ukraine accepted the jurisdiction of the Court by adopting a corresponding resolution on February 4, 2015. Why hasn’t Russia used this fact and has not heaped up the ICC with the lawsuits? Because the cases, initiated by the Investigative Committee of Russia, are groundless. They have no evidence,” said Vasylenko, adding that the arguments of the Ukrainian MPs against Ukraine’s membership in the ICC are based on legal ignorance and nihilism.

David Donat-Cattin, the Secretary-General of the “Parliamentarians for Global Action” international organization, is convinced that it is Russia which does not want Ukraine’s membership in the ICC.

“The arguments of MP Herashchenko do not reflect the reality. It is Russia which does not want Ukraine to ratify the Rome Statute. We know this from both the private and public discussions,” he said wondering why the People’s Front Party faction, which voted in favor of the Association Agreement with the EU, providing for the ratification of the Rome Statute, now questions the membership in the court.

Volodymyr Vasylenko explains that the principle of complementarity lies in the fact that the court begins to prosecute the perpetrators only when the national authorities failed to do that for various reasons.

“A serviceman, who committed a war crime, should be prosecuted by his own state. If the state does that, the ICC’s jurisdiction will not act. Therefore, this argument is like saying: ‘No citizen of Ukraine shall be held criminally responsible for a crime. Do you realize the consequences of this reasoning?” Vasylenko asked.

“Mistakes made by the servicemen are one thing, but the crimes are another thing. Torture is not a mistake, it is an international crime,” British lawyer at the Global Diligence LLP law firm Alex Prezanti added.

David Donat-Cattin advised joining the ICC as soon as possible so that Ukraine could have the right to decide whether the crime of aggression is subject to the jurisdiction of the court.

“Now, Ukraine can only observe, but not to vote. A year and four months are still left,” he recalled.

He was also surprised at the postponement of the possibility to ratify the Rome Statute for three years.

“The lawyers say that the statute can be ratified for a year. The President may set forth such an initiative. You have agreed to the Court’s jurisdiction and must cooperate now. It is the duty of complementarity. However, you do not have the rights in the court. It’s like traveling without paying for a ticket. He, who has bought a ticket, has the right, and you do not have such a right. Therefore, your arguments are less significant,” David Donat-Cattin summed up.