Deputy Head of the President’s Office Ruslan Ryaboshapka said Ukraine would soon ratify the Rome Statute. This news immediately outraged numerous opponents of ratification: they say it is treason.

Prilepin has run “completely wild”

On August 15, Russian journalist Zakhar Prilepin confessed to journalist Alexei Pivovarov in an interview to YouTube channel “Redaktsyya” that he had committed many crimes against humanity during his time as a member of a terrorist group in the occupied areas of Donetsk region. “I was in charge of a combat unit that killed a great number of people,” said Prilepin. “And I don’t know how I will deal with it… All we did there was complete wild mayhem… Once, all documents emerge… But I don’t care about any litigations. Nobody ever will send me to prison. I will go to any country I wish, and everything will be fine. I am not afraid of any court in the Hague.”

Of course, everything that dreamer Prilepin says should be divided by ten but the fact of the war crimes in the occupied territories is obvious. This is also evidenced by the Monitoring Report “Survivors of Hell: Testimonies of Victims of Illegal Prisoners in the Donbas”. War crimes do not have a separate article in the Criminal Code of Ukraine, so new laws are needed to convict war criminals. Deputies have been drafting such a bill 2679-VIII for nine months, but it has not yet been adopted. But restoring justice through the courts is only the first step to transitional justice. The International Criminal Court (ICC), the same one based in the Hague, which Zakhar Prilepin and his associates are not afraid of, can help us with that. In order to transfer Prilepin there (provided that he can be caught), the Rome Statute of the ICC must be ratified.

Why the states do not want to sign the Rome Statute?

ICC’s competence in confined to three types of crimes:

Genocide is the intention to wholly or partially destroy a national, ethnic, racial or religious group per se.

Crimes against humanity are part of large-scale or systematic persecution directed against civilians, while the criminal knew in advance about the possible prosecution.

War crimes are violations of the laws and customs of war, which govern the behaviour of armed forces during the war and protect civilians, prisoners of war, cultural heritage, etc.

But in order for Ukraine to be able to transfer cases to the ICC, we must finally ratify the Rome Statute, which was signed twenty years ago. Why is it still unratified? The President of the European Committee for the Prevention of Torture Mykola Hnatovsky explains that in 2001 the Constitutional Court of Ukraine (CCU) found the Statute of the International Criminal Court to be inappropriate for the Constitution of Ukraine. The CCU concluded that paragraph 10 of the Preamble and Article 1, according to which the jurisdiction of the ICC “complements national criminal justice systems” does not meet the Constitution of Ukraine. After all, Article 124 of the Constitution states that “justice in Ukraine is exercised exclusively by the courts” and “the delegation of the functions of the courts to other bodies or officials is not allowed”.

By the way, the ICC is also not recognized by the Russian Federation, the United States, China, Israel, Iran and India. For now, the Rome Statute was ratified by 122 countries across the globe. Of the 193 UN member states, only 121 ratified, 31 signed but not ratified, and 41 did not sign at all. The problem is that the ICC is a kind of supra-state body that forces the state to execute its decisions, which limits its sovereignty in a certain way, and not everyone agrees with it. The most bright is the example of the US.

The government of the USA signed the Rome Statute in 2000 but two years later withdrew its signature. Later, the American president’s administration said that ICC violates national interests and the sovereignty of the state. One of the causes for withdrawal was the adoption of the American Service-Members’ Protection Act. This law authorizes the President of the United States to use “all necessary and appropriate means to release any US or allied personnel detained or imprisoned, on behalf or at the request of the International Criminal Court.” By these lines, the Act was even called “The Hague Invasion Act”, in the sense that the United States could invade the Netherlands to release its soldiers from the Hague Tribunal.

Russia, which is trying to copy the USA in everything, has also refused to ratify the Rome Statute for the same reasons. Actually, the point is that both the United States and Russia often use their army abroad. And such usages may result (and they do result) in some tragic incidents that ICC qualifies as war crimes. And so the US and Russian Army soldiers can be easily put on trial in the ICC. And they can be put only if the United States or Russia agree to extradite them by signing the Rome Statute.

Ihor Lutsenko “prompts” why Ukrainian soldiers can also be sent to the Hague

That’s is the reason why the Rome Statute is opposed by some Ukrainian politicians. For instance, ex-MP Ihor Lutsenko believes that after signing of this statute, the Ukrainian military can also be brought to the Hague Tribunal. “Shortly after the Statute is ratified, Russia will immediately appeal to the ICC against possible war crimes in the territories of Ukraine committed by Ukrainian military during the so-called Anti-Terrorist Operation,” Ihor Lutshenko writes. “After that, all those who defended the Motherland will become potential defendants in the Hague Tribunal. It does not matter whether a war is declared or not declared – Article 1 of Protocol II clearly states that it applies to any armed conflict occurred in the territory of any country that has been acceded to the Geneva Convention, between its armed forces or other organized armed forces that, under responsible command, control part of its territory. Therefore, what happened in the east of Ukraine under the conditions of the legal regime of peacetime called ATO is a deliberate gross violation of the laws and customs of war. For the punishment of culprits, there is the ICC.”

Ihor Lutsenko even “prompts” the ICC for what the Ukrainian military may be arrested: in the Minsk Agreements, it is written that “President Leonid Kuchma pledged on behalf of Ukraine to exchange hostages (paragraph 5 of the Minsk Agreements 2014 and paragraph 6 of the Minsk Agreements 2015 )”. “And for the ICC, the adoption of the Minsk Agreements by President Petro Poroshenko will be a tangible proof that the Ukrainian military is brutally violating the Additional Protocol to the Geneva Conventions of August 12, 1949, which prohibits hostages,” Ihor Lutsenko writes.

Another example is the arrest and conviction by Ukrainian courts of combatants and Russian servicemen involved in a military conflict. From the point of view of international law, they are not criminals but prisoners of war and are not subject to conviction but to internment.

According to Ihor Lutsenko, “if Ukraine’s top political leadership from the very beginning of the Russian aggression called a spade a spade, introduced a legal regime of martial law in the occupied territories, instead of naming the general military operation an “anti-terrorist” and adhered to ratified by Ukraine international laws that establish the laws and customs of war and non-international armed conflicts, the Ukrainian military would now have no prospect of being wanted by the ICC.”

In 2015, Deputy Head of the NSDC Information and Analysis Center, Volodymyr Polevy, had significant objections to the ratification of the Rome Statute. He mentioned that in August 2008 Russia did not ratify the Rome Statute while Georgia did. On August 2008 Russian army broke into Georgian territories to “protect Russian citizens”. And after that, the ICC began to consider more than 3,000 appeals from Russians who received Russian citizenship in South Ossetia and allegedly suffered from the actions of the Georgian authorities. That is, it is the Russians (not vice versa) who are on the prosecution side, and the actions of the Georgian side are being investigated by the court. The prosecution of Russian authorities, soldiers and the leadership by the International Criminal Court is impossible since it is not a party to the Rome Statute. It is clear that Russia, which is consciously destabilizing the situation in countries “within the sphere” of its national interests, is not going to ratify this document.

“Russia has already created a Memory White Paper on the events in the Donbas and is preparing lawsuits against the Ukrainian military,” Volodymyr Polevy argues. According to Russia’s logic, it does not matter that the Russian military and its terrorists are to blame for thousands of deaths of civilians and the Ukrainian military. Only falsified data on the shelling of Donetsk and Luhansk and thousands of complaints from indignant residents already prepared by Russian lawyers are important.

In the conditions of the annexation of Crimea and Russia’s aggression in the Donbas, ratification of the Rome Statute is expedient only in the conditions of simultaneous adoption of such a decision, first of all by Russia,” the NSDC representative concludes.

Opponents of ratification of the Rome Statute have another argument against it: the case of Ukrainian serviceman Vitaliy Markiv. In 2017, Markiv went to Italy to see his mom. On June 30, 2017, at Bologna Airport, Italian police arrested Markiv on suspicion of the murder of Italian photojournalist Andrea Rockelli, along with his Russian counterpart, Andrei Mironov, who died in a May 2014 shelling near Sloviansk. On July 12, 2019, Italian court held a final hearing in the case and found Markiv guilty, sentencing him to 24 years’ imprisonment with an obligation to pay compensation to the family of the deceased.

The myths around the Rome Statute

Oleksandra Romantsova, executive director of the Civil Liberties Center, considers all these arguments far-fetched and groundless. For example, the mere fact of the participation of the Ukrainian military in the Anti-Terrorist Operation, which is not recognized as war, cannot be the cause of initiation of cases against them in the ICC. According to the Rome Statute, the killing of military personnel who represent the other party to the conflict and have the power to defend themselves is a foreseeable purpose for hostilities and therefore not subject to the conviction in accordance with the standards of international humanitarian law.

The ICC will not be able to open cases against the Ukrainian high-ranking officials and commanders who led the ATO. Only mass and systematic killings, hostages, extrajudicial executions, rape, robbery, use of people as “human shields”, targeted attacks on civilians and non-military civilians, and the like are the only cause of initiating the case. It doesn’t touch upon the particular crimes in this list, but only the cases where these crimes are “systematic and widespread” when they are “part of a plan or policy”. The war crimes that the ICC considers have nothing to do with the “incompetent orders” to the military.

The Russian Federation won’t be able to accuse Ukraine in the ICC of the fenoly. Since the ICC Prosecutor is absolutely independent. Even in the case of allegations against the Ukrainian military by the Russian Federation, the ICC will carry out its own unbiased investigation. The court isn’t subject to the Russian sprawling propaganda.

It’s worth noting that Vitaliy Markiv was found guilty not by the ICC but by the ordinary Italian court. Moreover, he had Italian citizenship, therefore, he was tried as an Italian citizen, so his example in the Rome Statute has nothing to do with it.

Head of the NGO Center for Human Rights Information Tetyana Pechonchyk reminded that in 2014 Ukraine by two statements had already recognized the jurisdiction of the ICC, and the ICC Prosecutor’s Office had begun a preliminary study of the situation in Ukraine, in particular, on crimes committed in the Donbas and Crimea.

“Full ratification of the Rome Statute gives Ukraine more rights,” Tetyana Pechonchyk believes, “in particular, to participate in the work of the court with other states, to adopt acts of internal law, to elect judges and the ICC Prosecutor, etc. It will help us bring in international justice tools to prosecute those we cannot reach – because they are either in the Russian Federation or in the occupied territories.”

In addition, the ratification of the Rome Statute is an unfulfilled obligation of the previous authorities contained in the Association Agreement between Ukraine and the European Union.

What is the difference between the ICC and Ukrainian courts?

Do we actually need this ICC? Ukraine has its own authorities: police, court, prosecution office. Why don’t they take up investigation into crimes which Prilepin boasts about?

Judge of the Court of Cassation in the Supreme Court, Arkadiy Buschenko, says that the Rome Statute is intended for cases where totalitarian power is established in the state and national authorities do not want to bring senior officials to justice because they are under their control.

The ICC differs from the European Court of Human Rights in that the latter simply gives a legal appreciation of particular state rulings, and if they are illegal and violate human rights, the ECHR will require to revoke them and make new decisions and to pay compensation to the victims. The Russian Federation recognizes some EC rulings: for example, oppositionist Alexei Navalny had to receive a substantial sum of compensation (225,000 euros) for five years of unlawful arrests and detentions.

Despite the ECHR, the ICC has its own Prosecutor who can decide that in some country there is a war crime, investigate it and transfer to the court.

Ukrainian authorities also can bring Russian terrorists to justice but not those who are out of its jurisdiction. The same concerns war crimes that are committed in the territories that are not controlled by Ukraine. Thus, Prilepin, imaging that he is convicted in the ICC, won’t be able to freely visit the Book Salon in Paris, where he is invited almost every year.

If now the authoritarian regime of Russia has no desire to bring Prilepin or Girkin to criminal liability for war crimes committed on the territory of Ukraine, this cases can be handed over to the ICC on Ukrainians’ lawsuit. But we should not pin all our hopes on the ICC.

The President of the European Committee for the Prevention of Torture, Mykola Hnatovsky, reminds that the ICC will not do all the work instead of the relevant national bodies of Ukraine. “The extraordinarily high cost of international court proceedings and the time-consuming execution confine its work to the most horrific and most serious violations of international law,” he says.

Mykola Hnatovsky believes that the Rome Statute must be definitely ratified even if it now contradicts our Constitution. “The only possible solution for Ukraine is to make amendments to Constitution needed for the Rome Statute ratification which will allow the state to take full advantage of the ICC’s jurisdiction,” he says.

Text by Oleh Shynkarenko

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