Ukraine de facto accepts jurisdiction of International Criminal Court. Now the same must be done in legal field – experts


Kyiv, December 7, 2015. Ukraine has de facto accepted the jurisdiction of the International Criminal Court (ICC). The country now has to become a full-fledged party to the Rome Statute and get all the rights that it grants to the state that ratifies it, said Mykola Hnatovsky, Senior Advisor on Constitutional Affairs at Democracy Reporting International during a discussion at Ukraine Crisis Media Center (UCMC). “For example it includes the right to initiate a court hearing that the states – not parties to the statute do not have. Our declaration that we submitted to the Prosecutor’s Office calling to consider the events that are taking place in Ukraine is just an appeal,” explained Hnatovsky. It means that the Prosecutor can start a court case only at his/her own initiative. Moreover, a state – party to the statute may initiate court hearing of cases that relate to other states.

Representative of Democracy Reporting International said that Ukraine’s Constitutional Court ruled that the ICC’s statute is not in line with Ukraine’s Constitution. Nevertheless the Association Agreement between the EU and Ukraine contains the provisions that bind Ukraine to ratify the Rome Statute and cooperate with the ICC. The conclusion of the Constitutional Court of 2001 stipulates that respective changes are introduced into the Constitution before the Rome Statute can be ratified. The two declarations that Ukraine has adopted to accept the action of the Rome Statute as to particular cases are beyond doubts worth of positive feedback. However, many serious legal issues can be settled only after the Rome Statute is ratified by the parliament, noted Hnatovsky. Ukraine’s Constitutional Commission worked out the necessary changes that received positive feedback from the Venice Commission. At the same time it raises concerns that the provisions of the draft law – amendments to the Constitution that the President of Ukraine has recently passed to the parliament are to come into force in three years.

“And then there is a question: why is it done? […] There is no understanding what it means to postpone ratification after we accepted the ICC jurisdiction with these special declarations. It makes no practical sense, meaning that we win nothing but instead we will undermine the attitude and trust to us,” said Hnatovsky.

According to Stanyslav Shevchuk, judge of the Constitutional Court of Ukraine, Doctor of Law, it is obvious that the international jurisdiction will put actions of the neighboring state in the spotlight, such as participation in the international conflict, it is a war crime and it falls into the ICC jurisdiction. And Ukraine has to be consistent in it. “From the rule of law standpoint, adherence to which Ukraine declared after the Maidan, and based on the fact that we are building a rule of law state, we cannot make a 180 degree turn,” he noted adding that the rule of law is above the politics and mutual international trust is what is appreciated most. “People of Ukraine demand that the crimes committed on Maidan as well as the war crimes in Donbas are investigated and that those responsible for the annexation of Crimea are held liable. That’s why such changes to the Constitution are important,” emphasized Shevchuk.

Seventy three percent of respondents spoke in favor of involving the ICC into investigation of war crimes committed in Donbas. These are the results of the public opinion poll conducted in June 2015 by Amnesty International, said Tetyana Mazur, the organization’s executive director. This opinion of the Ukrainian people has to be a signal for Ukrainian authorities. “I think it is unacceptable to protract [the ratification – UCMC note] for three years for unknown reasons and not voice these reasons,” claimed Mazur. In her opinion the main thing is to have the political will to introduce respective changes to the Constitution, she called postponing ‘a strange and illogical step’. Ratifying the Rome Statute is also important because the 123 countries that have accepted the ICC jurisdiction is a kind of a club of the states that respect the international law. Among the Council of Europe member states who have not joined the ICC are Russia, Azerbaijan, Armenia and Moldova. Moreover, the ratification of the statute would enable Ukraine to also “make its own contribution to overcome impunity for most horrible crimes committed not only in Ukraine but in other countries of the world”. It will also strengthen the ICC itself as it is now lacking power to consider a vast number of international cases.

Lyudmyla Sugak, Head of Department for cooperation with international organizations at the Ministry of Justice of Ukraine, added that ratification of the Rome Statute also requires action in legal sphere. Ukrainian legislation needs to be harmonized with the international one, the Ministry of Justice is currently working to achieve that. “We have no alternative but to ratify the statute taking all arguments into account,” noted Sugak.

Mykola Hnatovsky also described the perspectives that Ukraine’s cases have as to being considered by the ICC. He assumed that when the armed conflict in Ukraine reaches the stage of a trial in an international court it may be qualified in two ways at the same time. Majority of professionals believe so, Hnatovsky said. “This conflict is being qualified both as a non-international one – in the pair ‘Ukraine – militant groups fighting against Ukraine that call themselves ‘DPR’, ‘LPR’ etc.’ and as an international one – in the pair Ukraine – the Russian Federation,” he said. Firstly the Russian Federation is responsible for actions of these groups, secondly the international armed conflict between Russia and Ukraine is definitely in place also taking into account the occupation of Crimea. “Occupation that does not meet armed response can be qualified as an international armed conflict according to the Geneva Conventions of 1949,” said Hnatovsky. The issue of internally displaced persons is an additional argument in the situation with the annexation, and the case of Crimean Tatars who are an indigenous people falls into the ICC jurisdiction, added Shevchuk.