Reform Index focus: cooperation with the International Criminal Court
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Reform Index focus: cooperation with the International Criminal Court

Photo: ua.depositphotos.com / snehitdesign
7 July 2022
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The Law on Cooperation with the International Criminal Court (ICC) can be compared to fixing the top floor of a skyscraper sitting on a fragile foundation. It is a logical part of integrating the national justice system with the ICC, as provided by Article 86 of the Rome Statute of the International Criminal Court. However, it should be implemented not before ratifying the Statute but after Ukraine acquires the duties and the rights of a member of this judicial institution.

Similar laws exist in Belgium, Switzerland, Germany, Georgia, and other countries. However, a considerable part of such laws has to do not just with the ICC but also with other international tribunals, existing or potential.

Although Ukraine signed the Rome Statute of the International Criminal Court (ICC) in 2000, it has not yet been ratified. At first, this was explained by the Constitutional Court’s decision, saying the Rome Statute did not comply with Ukraine’s Constitution. After 2019, when the Constitution was supplemented with a provision on the Rome Statute, the explanation had to do with fears that criminal prosecution would affect the Ukrainian military and volunteers. However, after 2014, there was a need to extend the International Criminal Court’s jurisdiction to include Ukraine’s territory to investigate crimes committed by the russian federation. Its jurisdiction was recognized twice:

Recognition 1: zakon.rada.gov.ua/laws/show/790-18#Text 

Recognition 2: zakon.rada.gov.ua/laws/show/145-19#Text 

In Ukraine’s case, adopting the Law on Cooperation with the ICC was a practical necessity: national judicial and investigative bodies must be guided in their activities by the laws of Ukraine or international treaties ratified by Ukraine.

Ukraine still has not consented to the binding nature of the Rome Statute (as we wrote above, it has not been ratified by the Verkhovna Rada), inventing new legal methods and tools for this. The Law on Cooperation with the ICC is a logical continuation of the government’s maneuvering between the desire to bring criminals to justice for international crimes and to satisfy that part of the national parliament that continues to fear the consequences of ratifying the Rome Statute.

It should be understood that having twice recognized the jurisdiction of the International Court of Justice, our state took on the full responsibilities of a party to the Treaty without having the rights of a member state.

The law should facilitate cooperation, communication, and consultation with the ICC. It contains numerous references to the provisions of the Rome Statute, thus being transposed into the national legal system without its ratification as a whole.

However, it should be understood that even if the law speeds up procedures and processes during the investigation and prosecution of international crimes at the level of Ukraine, the situation will not change at the level of the ICC. Ukraine will continue to be a non-member state with priority  consequences, the pace of investigations, and directed resources.

Section IX-2 of the Law artificially limits the ICC’s jurisdiction regarding the circle of responsible persons (jurisdiction ratione personae) to senior officials of the russian federation and the so-called LDPR, excluding from the investigation’s focus possible international crimes among Ukrainians.

Possibly, the legislators do not understand the scope of Ukraine’s commitments toward the ICC or its mechanisms. The menu principle is not applicable to cooperation with the Court: a state recognizing the ICC’s jurisdiction no longer has the right to choose in whose case justice will be served. Under the jurisdiction principle, the Court independently decides who and what to initiate proceedings against. Thus, Ukraine’s restrictions will not be relevant to the ICC and, therefore, will not apply.

However, if Ukraine recognized the jurisdiction not by submitting applications and resolutions of the Verkhovna Rada but in connection with ratification, it would have the right to use the option of Article 124, “Transitional Provision” (the possibility not to accept the Court’s jurisdiction over its own citizens for seven years concerning war crimes). 

The law also lacks such an essential footing as harmonizing the Criminal Code with the Rome Statute. Ukrainian legislation contains procedural norms on interactions with the International Criminal Court in line with the Rome Statute, with a direct reference to it. At the same time, Ukraine’s Criminal Code either lacks the definitions of crimes (substantive rules), e.g., crimes against humanity, or they do not coincide with international formulations (crimes of aggression). This has already led to confusion and criticism of national courts (the case of Aleksandrov and Yerofeev) and will undoubtedly provoke similar instances in the future, for example, when the International Criminal Court will issue sentences for acts not criminalized at the national level. 

Therefore, although Law 2236-IX provides an algorithm for the interaction between Ukraine and the International Criminal Court, it does not resolve the key issues in this area. Ukrainian legislation still does not comply with European laws, and there is a need to sign finally the Rome Statute, whose ratification is one of the conditions for Ukraine’s accession to the EU.

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