Oleksii Plotnikov, PhD (International Judiciary)
Neither Russia nor Ukraine are parties to the Rome Statute of the International Criminal Court (ICC), however, on April 17, 2014, Ukraine lodged a declaration under Article 12(3) of the Statute , recognizing the jurisdiction of the ICC in respect of crimes committed during the Euromaidan protests in 2013 and 2014. On April 25, 2014, the Prosecutor of the ICC opened a preliminary examination of the situation. Further, on September 8, 2015, Ukraine lodged a second declaration, recognizing the jurisdiction of the ICC in respect of all international crimes committed on the territory of Ukraine after 20 February 2014. This allowed the Prosecutor of the ICC to investigate all facts related to Crimea and the conflict in East Ukraine.
Among many acts that are defined as international crimes by the Rome Statute, there is “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender…or other grounds that are universally recognized as impermissible under international law” (Article 7(1) (h). This very broad definition encompasses virtually every type of crime against an identifiable group . It was therefore predictable, that the situation of Crimean Tatars will attract the attention of the Prosecutor of the ICC.
The preliminary investigation by the Prosecutor aims to determine whether a particular situation is admissible before the ICC based on the information available . At the preliminary stage of investigation, the Prosecutor determines whether the case meets the requirements of complementarity and gravity to warrant consideration by the International Criminal Court, which is a prerequisite for full investigation and charges against suspected perpetrators. As of early 2020, the situation in Ukraine is under preliminary investigation. The annual reports of the Prosecutor reflect the developing vision of different aspects of the situation as potentially falling under the jurisdiction of the ICC. Among other things, this includes the persecution of Crimean Tatars by Russia.
The Prosecutor’s reports on preliminary examination activities demonstrate a trend of aggravation of appraisal of crimes in Ukraine. Two aspects are remarkable with regard to crimes against the Crimean Tatar community. Firstly, already in 2016, the Prosecutor qualified the situation in Crimea as armed conflict between Russia and Ukraine, which began at the latest on February 26, 2014, and which is ongoing due to military occupation of Crimea by Russia. Therefore, the international law of armed conflict applies in Crimea since that date . The applicability of the law of armed conflict opens the door to the qualification of certain acts committed in Crimea as war crimes, including the transfer of civilian population by the occupying power and compelling the nationals of a hostile power to take part in operations directed against their own country.
The preliminary investigation stage, however, is not designed for the legal qualification of acts. It is directed mostly at the collection of evidence and determination of whether certain acts can meet the threshold for the establishment of the Court’s jurisdiction. Already the 2016 Report mentioned “harassment of Crimean Tatar population”, including entry bans, house searches, restrictions of freedom of assembly and association, and killing of Crimean Tatar activists. The 2017 Report  added the prohibition of the Mejlis to the list of alleged violations, as well as other measures that caused the Crimean Tatars to flee Crimea. The 2018 Report outlined Crimean Tatars as targets of torture, ill-treatment, deprivation of liberty, and deprivation of the right to fair trial . The Report also changed the wording from “harassment of Crimean Tatars” to “persecution of Crimean Tatars” establishing the link with the offense provided in the Rome Statute. The 2019 Report again changed the wording to “persecution of identifiable group” – a term normally applied in the practice of international criminal tribunals .
Once again, the prospects of the Crimean case can be determined from comparison with the Georgian one. The ICC’s preliminary investigation of the events connected to armed conflict in 2008 lasted for seven years until in 2016 the ICC pre-trial chamber authorized the Prosecutor to launch an investigation . In that case, the situation was also qualified as armed conflict, while the charges expanded gradually from alleged harassment of the Georgian population to persecution in the meaning of the Rome Statute.
The effectiveness of the ICC in the investigation of offences committed both in Ukraine and Georgia remains questionable, and the vision of the role of the Court is often very pessimistic . In view of a lengthy investigation and high political status of at least some alleged perpetrators, it is questionable that the ICC will be able to bring them to justice. However, the investigation by the ICC is not useless, at least for the purpose of establishment of facts and legal qualification of events. By qualifying the events in Crimea as armed conflict and occupation, the ICC Prosecutor added a valuable piece to the bank of arguments of Ukraine on the international arena.
1. Rome Statute of the International Criminal Court, (1998), 2187 UN Treaty Ser No 90 (2002).
2. Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2, ICTY Trial Judgment, February 26, 2001.
3. International Criminal Court. Policy Paper on Preliminary Examinations November 2013.
4. International Criminal Court. Report on Preliminary Examination Activities 2016.
5. International Criminal Court. Report on Preliminary Examination Activities 2017.
6. International Criminal Court. Report on Preliminary Examination Activities 2018.
7. International Criminal Court. Report on Preliminary Examination Activities 2019.
8. ICC Pre-Trial Chamber I authorises the Prosecutor to open an investigation into the situation in Georgia, Press Release : 27 January 2016, ICC-CPI-20160127-PR1183.
9. Jeiranashvili, Nika. “The Georgian Experience: A Story of How the ICC is Failing Victims in its First Case Outside Africa”. The International Justice Monitor. May 10, 2018. https://www.ijmonitor.org/2018/05/the-georgian-experience-a-story-of-how-the-icc-is-failing-victims-in-its-first-case-outside-africa.