Reform Index 246: The Rome Statute and the Ban on the Russian Church

“Ukraine’s path to ratifying the Rome Statute was controversial and accompanied by numerous myths. One of the most popular myths was that immediately after ratification, the International Criminal Court would start prosecuting Ukrainian military personnel en masse. However, the ICC has been able to do so ever since Ukraine recognized its jurisdiction over potential crimes committed on its territory starting in November 2013. Within this jurisdiction, the ICC has always been able to investigate international crimes committed in Ukraine, regardless of whether they were perpetrated by citizens of Russia or Ukraine.

There is no reason to believe that the situation will change dramatically with ratification. A separate issue is Ukraine’s submission, along with the ratification, of a declaration under Article 124 of the Rome Statute, which states that for seven years after the Statute comes into force for Ukraine, it will not recognize the Court’s jurisdiction over war crimes that could have been committed by Ukrainian citizens. This is a controversial step, both in terms of equality and impartiality of justice and in how the Court will ultimately interpret this declaration. 

For Ukraine, ratification will mean full status as a State Party to the Statute, with the right to influence decision-making in the Assembly of States Parties, including amendments to the Statute (e.g., regarding the crime of aggression), voting for candidates for the position of judge, and even nominating candidates. However, it also implies ongoing work to harmonize Ukrainian criminal legislation with international criminal law—a process already initiated with the implementation law adopted alongside the ratification law.”

“The law was adopted amid a consensus among Ukrainians regarding the necessity to ban or significantly restrict the activities of the Ukrainian Orthodox Church (UOC), historically and canonically linked to the Moscow Patriarchate. While it is framed as a measure to protect national security (under the concept of ‘spiritual independence’), it is more likely directed at a domestic Ukrainian audience being part of broader efforts to eliminate Russian ties from the Ukrainian public sphere (such as renaming locations or altering school curricula).

The main issue with the law is that it does not comply with international human rights standards, which preclude the prohibition of religious organizations based on religious (canonical) affiliations. Instead, these standards stipulate that a ban is permissible only as a response to unlawful actions by such an organization. Moreover, the state must prove institutional unlawful behavior, not merely the misconduct of individual members of the organization.

To date, Ukrainian courts have issued around 50 verdicts against current or former UOC clergy, most of which pertain to unlawful expression—such as spreading hate speech or justifying Russian aggression. Common scenarios involve sharing specific messages in private chats or conversations with parishioners. There are also a few verdicts proving collaborationist activities. Under these circumstances, a total ban on the UOC, which includes approximately 8,000 communities (in territories under Ukrainian government control) and 10,000 priests, does not appear proportionate. However, the state can and should prosecute individual clergy or believers for committing criminal offenses, particularly those involving national security. Consequently, the law has already faced criticism from international organizations focusing on freedom of religion or belief.

The law also contains several problematic provisions regarding the rule of law (e.g., simplified court procedures for dissolving religious communities). It will significantly enhance the discretionary power of the state in regulating religion. Furthermore, if the UOC is dissolved, Ukraine’s religious landscape will undergo substantial changes. The establishment of a single Orthodox Church, should it occur, might increase pressure on religious minorities—a dynamic present to some extent in all countries with an Orthodox majority but one that Ukraine had avoided thanks to divisions and competition within the Orthodox Church. Already, it is evident that the law acts as a signal to local authorities and activists that UOC communities are effectively banned, intensifying conflicts in the religious sphere. These conflicts could pose significant challenges for the state.”

“Resolution 1031 designates the State Audit Service (SAS) as the primary state body responsible for detecting and preventing fraud involving EU funds (including the Ukraine Facility) and coordinating with the European Anti-Fraud Office (OLAF). Strengthening oversight of fund utilization was one of the conditions of the Ukraine Facility.

The SAS will collect all reports of possible fraud involving EU funds, including those from other government agencies, and will investigate these reports, involving the National Anti-Corruption Bureau of Ukraine (NABU), the Prosecutor General’s Office, the Economic Security Bureau, and other law enforcement bodies as needed. Additionally, the SAS will facilitate administrative investigations of fraud reports conducted by OLAF. OLAF inspections can be carried out without prior notice to the subject of the investigation, and the subject will be required to provide all information necessary for OLAF’s investigation. 

The SAS will publish an annual report summarizing the results of investigations into potential fraud involving EU funds. It will also be empowered to propose amendments to regulatory acts to prevent fraud and conduct training for government agencies involved in safeguarding EU funds against fraud.

In other words, the SAS will serve as the central body not only ensuring the investigation of potential fraud but also collecting information from other law enforcement agencies and organizing it systematically to propose legislative changes that close loopholes for exploiting identified fraudulent schemes.”