Ratifying the Rome Statute is a critical step for Ukraine, but not a ‘silver bullet’ – international criminal law expert

Ratifying the Rome Statute is a critical step for Ukraine, but not a ‘silver bullet’ – international criminal law expert
October 06, 2015.

Kyiv, October 6, 2015. Recently the international legal partnership Global Rights Compliance LLP (GRC) announced the start of an International criminal court (ICC) and International Humanitarian Law Reform Project in Ukraine, says Wayne Jordash, QC, managing partner at GRC at a press briefing at Ukrainian Crisis Media Center. According to the official statement, the project aims to provide advisory services to the Ukrainian government, international organisations located in Ukraine, and civil society on the Rome Statute of the International Criminal Court, as well as to assess the compliance of the Ukrainian legal system with international humanitarian law standards. In doing so, the ultimate aim of the project is to ensure sustainable and effective accountability processes to address war-related crimes and violations of international law. The first phase of the project will take place over the next seven months.

“[The project] is premised on the fact that ratifying the Rome Statute is a critical but not sufficient step for Ukraine. What it needs to do is to ensure that it is willing and able to prosecute. The aim of our project is to assist Ukraine so that it meets all these obligations,” Mr Jordash states. Within the project, the GRC team will analyze the relations of Ukraine with the ICC, the legislation governing the prosecution of international crimes, the work of military, police, prosecutor’s office and judicial system as well as practices.

Ukraine has already registered two declarations accepting the ICC jurisdiction, first regarding the events on Maidan and second – covering the subsequent events [Russian military actions against Ukraine]. “This is the critical point ,” Mr Jordash stressed, “it is the court of last resort. It has a complementarity provision, which says that it acts as a last resort for the national legal system”. He went on to explain that the Court’s Prosecutor initiates a preliminary examination and once it is done, she looks at two critical issues: are there national investigations or prosecutions and can Ukraine demonstrate that it is able and willing to genuinely conduct its own proceedings? According to Mr Jordash, if the answer is positive, the trials will take place at home. However, if proceedings are designed to shield suspects from justice, if there is unjustifiable delay, or proceedings are not conducted impartially or independently – that is a sign of Ukraine’s unwillingness. On the other hand, the country’s inability is exposed by the legal system’s incapability (namely, the lack of appropriate laws) to prosecute those accused of international crimes, as well as obtain evidence. In that case the ICC can step in. Mr Jordash believes that it is always better to have these cases put on trial at home, as the Hague cannot look at all crimes that have occurred but only at the most major and notorious ones. Therefore, it is in the interest of Ukrainian society to bring as many perpetrators to justice under national law so that the Prosecutor can handle the most complicated cases.

In the opinion of Jordash, there are signs of crimes that fall within the ICC jurisdiction regarding the events during and following the Maidan Revolution given the casualty figures confirmed by the international organization. Though only duly held investigations and impartial trials can confirm or disapprove that.

Note: The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. The Court may exercise jurisdiction over genocide, crimes against humanity and war crimes. It currently doesn’t have jurisdiction over the crime of aggression. Ukraine signed the Rome Statute on 20 January 2000 but has yet to ratify it.

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