Oleksii Plotnikov (PhD, international judiciary)

War is usually presented as a field of brutal violence, in which power ruins the rule of law. This has indeed been the case for almost all of human history, but in the last century and a half, law has become increasingly influential in the conduct of hostilities, and certain actions that were previously considered an indispensable part of war become unacceptable crimes, and justice can catch up with the criminal even decades later. A decisive step in the development of international responsibility for international crimes was made with the creation of a permanent International Criminal Court (check the CNN material for more information about the Court [1]).

Now, with more and more alarming reports about the likelihood of an escalation of Russian aggression, Ukraine must open the door not only to the supply of weapons from allies, but also to the widest possible application of international criminal law in order to exclude impunity for the organizers and perpetrators of international crimes. The Ukrainian position remains traditionally a compromise: Ukraine signed and even ratified the Rome Statute of the International Criminal Court, but then recognized the law on ratification as unconstitutional [2]. More than six months have passed since the Verkhovna Rada decided to supplement the Criminal Code with articles on international crimes, but the President has not yet signed this law [3]. Our Association supports the need to ratify the Rome Statute and the entry into force of the law on war criminals, and proposes to have a look at what cases of the crimes of the occupiers in Crimea can be in The Hague right now. Let’s start with the crimes committed during the “hot” phase of the occupation in 2014.

In February 2015, the Verkhovna Rada recognized the jurisdiction of the International Criminal Court in respect of crimes against humanity and war crimes committed by the highest officials of the Russian Federation and the leaders of the so-called “DPR” and “LPR”, which resulted in especially grave consequences and atrocities against the Ukrainian citizens starting February 2014 and “to the present” [4].

Such a formulation is hardly satisfactory, at least because of its limitations. The wording of Article 12 of the Rome Statute allows the state to choose the crime that it submits to the Court. The wording of the article is: “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”. That is, in order for the ICC to be able to consider a certain situation as a crime and determine the punishment for it, the applicant State must clearly indicate from the very beginning what kind of crime it is.

The Statute contains four international crimes: genocide, crimes against humanity; war crimes; the crime of aggression.

From this catalog Ukraine has selected two crimes: crimes against humanity and war crimes. At the same time, Ukraine has already named the perpetrators in the declaration, which is actually the task of the Court, and not of the applicant-state. According to Ukraine, “the highest officials of the Russian Federation” are guilty of the crimes (since we are talking about Crimea, we will leave out the “DPR” and “LPR”). However in Crimea, the highest officials of Russia may be suspected, first of all, of the crime of aggression. According to the resolution of the UN General Assembly “Definition of Aggression” in 1974, aggression is:

a) invasion or attack by the armed forces of a state on the territory of another state, or any military occupation, however temporary it may be… or any annexation by force of the territory of another state or part thereof…

c) blockade of the ports or coasts of a state by the armed forces of another state;

d) an attack by the armed forces of a state on the land, sea or air forces, or sea or air fleets of another state;

f) use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement;

g) sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

It can be seen that the actions of Russia clearly fall under several definitions of aggression. Aggression, as a rule, is planned by the highest officials of the state. But in terms of aggression, Ukraine did not recognize the jurisdiction of the International Criminal Court. It can therefore be problematic to claim responsibility of the senior Russian officials for the crime of aggression.

The second problem is the time limit. The Ukrainian statement used the wording “from February 20, 2014 to the present”. The wording “and to the present time” is used in the translation of the statement submitted to the International Criminal Court. The question cannot but arise whether the phrase “to the present time” means that Ukraine recognizes jurisdiction over the events that took place between February 20, 2014 (the date indicated in the Verkhovna Rada’s application), and February 04, 2015 (the date of the adoption of the application), or the second date is referred to an indefinite “present time” and is open, that is, the period in which Ukraine recognizes jurisdiction continues to this day. The interpretation of this question will determine whether the ICC will be able to consider events that occurred after February 04, 2015.

It is noteworthy that in the cover letter to the application submitted by the Minister of Foreign Affairs of Ukraine, these wordings are significantly modified. It cites the statement of the Verkhovna Rada, but notes that Ukraine accepts the jurisdiction of the Court for the purpose of identifying, prosecuting and convicting the perpetrators and the accomplices in acts committed on the territory of Ukraine after February 20, 2014. This declaration is made for an indefinite period [5].

The good news is that at the moment the ICC does not take into account the possible problem with the time limit. At least, in the reports of the Prosecutor of the ICC from 2016 to 2020, the formula “The Government of Ukraine has filed a second declaration … recognizing the jurisdiction of the ISS in relation to possible crimes committed on its territory from February 20, 2014 and thereafter, without a final date … is consistently used … Prosecutor announces Prosecutor announced the extension of the preliminary examination of the situation in Ukraine to include alleged crimes occurring after 20 February 2014 in Crimea and eastern Ukraine” [6].

The bad news is that the office of the Prosecutor still seems to be focusing on two categories of crimes and does not consider the crime of aggression. At least in a statement on the completion of a preliminary study of the situation in Ukraine, the former Prosecutor of the Court, Fatou Bensouda, noted that that “there is a reasonable basis at this time to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the Court have been committed in the context of the situation in Ukraine” [7].

This conclusion, in itself, is encouraging, but not sufficient for the ICC to consider the cases. After the completion of the preliminary examination of the situation by the Prosecutor, it is the turn of the investigation conducted by the Pre-Trial Chamber, which must establish whether there are grounds for conducting a full-fledged investigation, including, among other things, the identification of suspects.

It is also necessary to establish the compliance of specific criminal cases with formal criteria. These criteria are designed to ensure compliance with the principle of complementarity. It implies that the ICC considers only those cases that the state is not able, or clearly unwilling to investigate. The very existence of the ICC is due to the fact that states cannot always prosecute the perpetrators of international crimes. In addition, the severity of the crime is assessed so that only cases of truly serious crimes requiring international attention come to the attention of the international criminal justice system.

The Rome Statute sets out the following restrictions under which a case cannot be accepted for proceedings in the ICC:

– the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

– the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

– the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted;

– the case is not serious enough to justify further action by the court.

In terms of these criteria, at least some of the Crimean cases appear acceptable to the International Criminal Court. Fatou Bensouda mentions this in her conclusion: “Having examined the information available, despite the existence of information on domestic proceedings, my Office has concluded that the potential cases that would likely arise from an investigation into the situation in Ukraine would be admissible. This is because the competent authorities in Ukraine and/or the Russian Federation are either inactive in relation to the categories of persons and conduct that the Office has identified, or because the national judicial system is ‘unavailable’ in territory under the control of the opposing party, rendering the competent authorities unable genuinely to obtain the accused or the necessary evidence and testimony or otherwise to carry out their proceedings” [7].

With regards to Crimea, there is no doubt that the Ukrainian judicial system is not available there because it is under Russian control. Russia is not a party to the Rome Statute and does not effectively investigate international crimes and does not hold the perpetrators accountable. At least that’s what international reports say. Among many, one can cite, for example, the report of the Office of the UN High Commissioner for Human Rights on the situation in Crimea in 2018 insofar as it concerns torture and enforced disappearances: “the absence or lack of effective investigations cuts across all violations. Failure to ensure accountability creates a climate of impunity and denies victims access to justice and remedy” [8].

Thus, it should be easy for Ukraine to prove its inability to bring to justice the perpetrators of human rights violations in Crimea. The respective suspects are not convicted of crimes. Therefore, the evidence must relate mainly to the seriousness of the crimes, which must be serious enough to be considered by the Court. However, given the limited capacity of the ICC itself, it can hardly be expected that it will consider all cases for all crimes that are committed in Crimea.

This court was designed to deal with a small number of cases at the highest possible level, rather than deal with a large number of typical cases. The number of communications on cases to the Court from Ukraine is already approaching a hundred, and, obviously, will grow further, and could potentially number in the thousands. Among such cases, it is advisable to single out priority ones, those in which the investigation will concern not isolated cases, but tendencies or the most serious crimes or the most wanted criminals. We will talk about what Crimean cases can be identified for ICC in the next publication.

Sources

1. https://yur-gazeta.com/publications/practice/kriminalne-pravo-ta-proces/ukrayina-i-mizhnarodniy-kriminalniy-sud-dvadcyat-skladnih-pitan-i-prostih-vidpovidey.html

2. https://voxukraine.org/ukraine-and-the-international-criminal-court-a-constitutional-matter-ua

3. https://www.rada.gov.ua/news/Povidomlennya/208710.html

4. https://zakon.rada.gov.ua/laws/show/145-19#Text

5. https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf

6. https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf

7. https://www.icc-cpi.int/Pages/item.aspx?name=201211-otp-statement-ukraine

8. https://www.ohchr.org/Documents/Countries/UA/CrimeaThematicReport10Sept2018_EN.pdf