When Ukraine’s parliament voted recently to ratify the Rome Statute that set up the International Criminal Court (ICC), its leaders saw a clear strategic path: first, towards becoming the court’s 125th member state, but – more importantly – towards ultimately joining the European Union.
Kyiv has recognised the ICC since 2013, the year before Russia seized the Crimean Peninsula.
However, full membership of the court is a requirement for joining the EU, for which Ukraine was formally accepted as a candidate in June 2022, four months after Russia began its full-scale invasion.
It hasn’t been hard to sell membership of either to a Ukrainian public desperate for Western support. “We’re taking real steps on all fronts to bring the Russian Federation to international justice,” said Ukraine’s deputy justice minister, Iryna Mudra. “Among other things, ratification of the Rome Statute will increase the chances of victims receiving compensation for war crimes.”
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An investigation by the ICC prosecutor into the war opened in 2022. Foreign minister Dmytro Kuleba says: “Ukraine has already worked effectively to ensure accountability for all Russian atrocities committed in the course of Russian aggression.”
The ICC has issued arrest warrants for Russian officials, including president Vladimir Putin and his former defence minister Sergei Shoigu, for their roles in allegedly targeting Ukrainian civilians – allegations Moscow vehemently denies.
But it is precisely here that lies a problem of jurisdiction that is already starting to delay Kyiv’s progress towards ratification of the statute: the idea that only Russian aggression will come under the microscope of ICC investigators and potentially face public trial and punishment.
The reality is that the ICC will – as it is sworn to do – investigate without fear or favour and charge any and all alleged war criminals, from whichever side. That may prove domestically unpalatable to many Ukrainians, perhaps not surprisingly given what their country has been through.
Ukraine does, however, have a get-out clause under Article 124 of the Rome Statute. This is a so-called transitional provision that would allow Kyiv to limit the court’s jurisdiction over war crimes committed by its nationals on its territory, for seven years.
By invoking Article 124, Ukraine would effectively be shielding its nationals from prosecution, much as the United States does by other means, specifically by publicly supporting the ICC but refusing to ratify the statute and thereby refusing to subject its nationals to legal jeopardy.
The problem with Article 124, says its critics – including Human Rights Watch, the International Federation for Human Rights (FIDH) and Amnesty International – is that it’s a slippery slope to “selective justice”.
In the case of Ukraine, this would mean ensuring that justice is meted out to Russian war criminals but not to any Ukrainians who may similarly have transgressed.
“We strongly welcome Ukraine’s ratification of the Rome Statute because it is a powerful reaffirmation of the rule of law globally,” says Danya Chaikel, the FIDH representative to the ICC in The Hague. “Even so, we are deeply concerned that including an Article 124 declaration would hinder the court’s ability to fully investigate all crimes and suspects. We urge the Ukrainian authorities to ensure that legal accountability is pursued for everyone, without exception.”
In unison, the NGOs have now urged Ukraine’s government not to submit the declaration to the UN along with its other instruments of ratification. “Such a declaration runs contrary to the core principles of international justice,” says Amnesty International. “The people of Ukraine deserve justice – but effective justice cannot be selective.”
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