A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

According to VOA News, the Ukrainian Parliament would like the ICC to investigate recently-deposed President Yanukovych:

Ukraine’s parliament voted on Tuesday to send fugitive President Viktor Yanukovych to be tried for ‘serious crimes’ by the International Criminal Court once he has been captured.

A resolution, overwhelmingly supported by the assembly, linked Yanukovych, who was ousted on Saturday and is now on the run, to police violence against protesters which it said had led to the deaths of more than 100 citizens from Ukraine and other states.

The resolution said former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, who are also being sought by the authorities, should also be sent for trial at the ICC, which is based in The Hague.

The court says it needs a request from Ukraine’s government giving it jurisdiction to investigate Yanukovych and others over deaths during the protests.

I’m pretty sure the Court did not actually say that. Why? Because Ukraine has signed but not ratified the Rome Statute. And it can’t without Parliament’s intervention, because Ukraine’s Constitutional Court has held that the Rome Statute is not in conformity with the Ukrainian Constitution. So here’s a suggestion: before Parliament tries to send its former President to the Hague — and it would, of course, have to refer the situation in the Ukraine, not just him — it should amend the Constitution and ratify the Rome Statute.

All that said, there would be worse things than a Ukraine self-referral. After all, the Ukraine is not in Africa, and it’s unlikely that Yanukovych won’t eventually be apprehended. Prosecuting a former non-African head of state would do wonders for the ICC’s reputation.

UPDATE: In the comments, Shehzad Charania mentions the possibility of the Ukraine accepting the ICC’s jurisdiction on an ad hoc basis and then waiting for the OTP to initiate a proprio motu investigation. As I read the Constitutional Court’s decision, linked to above, that route is also foreclosed by the Ukrainian Constitution. Here is the relevant paragraph from the ICRC’s summary of the decision:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

If the problem with ratifying the Rome Statute is that Ukraine cannot delegate the administration of justice to an international court, that would seem to prohibit accepting the ICC’s jurisdiction on an ad hoc basis, as well.


19 Responses

  1. I wonder whether the ICC would find the allegations to be of sufficient gravity to be within their jurisdiction.  I am not opposed at all, mind you.  I am simply not sure this meets the threshold as it has been understood to this point.

  2. Maybe not. But it’s obviously not even an issue until post-Rome Statute ratification!

  3. Or submit to the Court’s jurisdiction under Article 12(3) and wait for the Prosecutor to initiate a proprio motu investigation?

  4. Why do you believe Yanukovych will be apprehended? He’s in the Crimea, which will secede, and won’t hand him over. Simple.
    PS. The ICC is still a racist, colonial institution.

  5. PPS. That’s a ridiculous claim.

  6. To take cognisance of any of that, in the face of a purported grant of jurisdiction by the Ukrainian government, would involve the ICC in the exercise of going behind the actions of organs of the Ukrainian state apparently competent to conduct its foreign relations, and evaluating their validity according to municipal law. That is a task much-loathed by international courts and rightly so. So unless it is actually required by the Rome Statute (I don’t know that it isn’t), I doubt that it would.

  7. While the route of ad hoc declaration may be foreclosed as a matter of internal law, with due respect Prof. Heller, I do believe that as a matter of international law the picture is a bit different.
    A newly installed Head of Government/State is considered as representing the state by virtue of his office, at least for the purpose of concluding treaties (Art. 7(2)(a) VCLT) and for the purpose of making unilateral binding declarations (Principle 4 ILC Unilateral Declarations Principles) such as the one foreseen in Art. 12(3) RS .
    The VCLT  in Art. 46(1) purports to give the consenting State the possibility to invalidate that State’s consent to be bound when expressed in violation of ‘internal law regarding competence to conclude treaties’ (eg the Constitution), as long as that violation was manifest. These provisions of internal law regarding competence include ‘fundamental laws which are not susceptible of alteration except by a special procedure of constitutional amendment and which in that way indirectly impose restrictions upon the power of the executive to conclude treaties’ (ILC Draft Articles on Law of Treaties, Commentary to Art. 43, para 1). Yet, there is no equivalent article in the ILC Unilateral Declaration Principles that seeks to achieve the same result in relation to unilateral acts done in violation of internal law of fundamental importance (the two cases at footnote 945 and 946 of the Commentaries are the only mention of this problem and these cases do not show a uniform approach). The UNSG Treaty Handbook (2102) and Summary of Practice (1999) do not provide any guidance here either, unfortunately. 
    I would suggest that joining the ICC as a Member State would be unconstitutional as a matter of internal law, but certainly possible – and effective – as a matter of international law (although there is the danger that a subsequent regime will seek to invalidate the State’s consent, unless that is not possible anymore as a result of that State’s subsequent conduct, see Art. 45(b) VCLT ). I would, however, be less certain whether an Art. 12(3)-declaration submitted in violation of the Constitution is susceptible to a similar invalidation. Should my assessment be correct (?) it would certainly be possible for Ukraine to lodge such declaration, regardless of the Constitution.
    Lastly, assuming, for the sake of the argument that Art. 46 VCLT applies by analogy to unilateral acts, then it must be noted that this concerns a relative (as opposed to absolute, as found in Art. 51-53 VCLT) ground for invalidity; such rule would not automatically render the ad hoc declaration without legal effect. If Ukraine never wishes to invoke it the declaration would remain effective.


  8. Rob,

    I’m not as certain as you the Court wouldn’t care if a state accepted jurisdiction in the face of a decision by its highest court that doing so was unconstitutional. The Court is required by the Rome Statute to assure itself that it has jurisdiction over a particular case. It’s possible that the judges would do as you say and simply ask whether the competent state organ submitted the declaration, but I’m not so sure.  Moreover, I find it highly unlikely that the OTP would open an investigation in such a situation — after all, doing so is a recipe for endless disputes, legal and political, over cooperation between the state in question and the OTP.

  9. Remy,

    I wasn’t addressing international law in the post, which was directed toward the Ukraine, not the ICC. I’m sure your analysis of international law is accurate; you know that area far better than I. But I think what I said above still stands: even if the ICC could potentially accept an ad hoc declaration that put Ukraine’s parliament in direct conflict with its Constitutional Court, I don’t think it — particularly the OTP — would. Doing so would likely end in disaster, which is the last thing the Court needs right now.

    Besides, the Ukrainian Constitution is not sacrosanct. If Parliament is so desperate to send their former President to the ICC, it should simply amend the Constitution to make ratification of the Rome Statute or an ad hoc declaration possible.

  10. Two things are worthy of mentioning here (given that the ICRC document stems from 2003):

    in the meantime MFA and the Ministry of Justice  (and as a direct response to the Constitutional Court’s Opinion in 2001) have drafted constitutional amendments and submitted these to the National Constitutional Council, which if enacted would open the door for full membership (possibly in combination with a declaration that gives retroactive jurisdiction) (source: Coalition for the ICC)
    (more importantly for our discussion) two days ago Ukrainian Parliament has actually voted to accept the ad hoc jurisdiction under art. 12(3) RS after reinstating the 2004 Constitution (source: Parliamentarians for Global Action). I guess the declaration has not been submitted yet, no mention of this on ICC website.

  11. In my opinion, purporting to conduct a judicial review of the legality (under municipal law) of the acts of apparently competent state organs is more likely to lead to endless disputes (because it is essentially looking at an internal matter), which is why the exercise is generally to be avoided both in international legal proceedings and diplomacy.

  12. Remy,

    Thanks for the update. Does the 2004 Constitution have a different Art. 124, the provision that prohibits delegating the judicial function? I can’t tell from the one English translation of the Constitution that is available online.

    It’s interesting that the two statements you link to, both issued in the past 48 hours, differ. The NWPJ statement says nothing about an ad hoc declaration.

  13. Another blogger who seems to know far more about the Ukraine than I agrees with me.

  14. Please edit the text and delete “the” before “Ukraine”. Thank you.

  15. Kevin, comparing the (at times oddly translated) 2004 Constitution with the one from 1996 I can’t see any difference in Art. 124. 
    I guess it’s hard to tell without any official translation what the recent act of Parliament truly involved. It may have been a mere statement of intent to speed up the process of ICC-related amendments and/or request the executive to lodge an Art. 12(3)-declaration.

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