Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

As readers no doubt know, Ukraine has accepted the ICC’s jurisdiction on an ad hoc basis for acts committed between 21 November 2013 and 22 February 2014. The self-referral has already led to a good deal of intelligent commentary — see, for example, Mark Leon Goldberg’s discussion of the politics of an ICC investigation here and Mark Kersten’s convincing argument that Russia may not be particularly opposed to an ICC investigation here. I just want to add a few additional thoughts.

To begin with, I remain troubled by the insistence of Ukraine’s Constitutional Court that Ukraine cannot delegate its adjudicative jurisdiction to an international court. As it said in 2001:

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.

Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care about that inconvenient fact; will the ICC? Martin Holtermann may be right — the ICC may simply defer to Ukraine’s President and Parliament. But I can help but think it would be unseemly for an international court like the ICC to simply ignore a clear judgment issued by the highest court in a state purporting to accept its jurisdiction. At the very least, Fatou Bensouda should take the Ukraine’s internal conflict into account when she decides whether to open a formal investigation — you can bet that any suspect wanted by the ICC would challenge the legality of the self-referral in Ukraine’s domestic courts, litigation that could make it very difficult for ICC proceedings to go forward.

Relatedly, I think it’s important to remind ourselves that Ukraine’s self-referral does not mean the OTP will open a formal investigation into the situation. Diane Amann writes today that the self-referral shows “Europe is on [the] ICC docket.” That’s true — but only in the formal sense. As Mark Kersten noted in February, Europe has been on the ICC docket for a long time in terms of preliminary investigations. After all, the OTP announced the Georgia investigation in August 2008 — nearly six years ago. (Its Afghanistan investigation has been plodding along even longer, since 2007.) That hasn’t quelled the voices that have been complaining — with justification — that the ICC has been overly obsessed with Africa. So unless and until the OTP decides to open a formal investigation into the situation in Ukraine, the country’s self-referral is unlikely to have any positive effect whatsoever on the Court’s African reputation.

Finally, a brief thought on the temporal limits of the self-referral. I don’t think the ICC will reject the referral on the ground that it is too carefully tailored to ensure only one side of the conflict. (A major problem with Comoros’s Mavi Marmara state referral.) The temporal limits, however narrow, make some sense — the referral begins when Yanukovych announced Ukraine was abandoning the agreement with the European Union and ends when Yanukovych fled the country. Should Ukraine have accepted the ICC’s jurisdiction for a longer period — most notably, to include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if Russia actually violates the law of occupation, which seems unlikely given the popularity (certainly not uniform) of the invasion and annexation within Crimea itself. The wildcard is the crime that Eugene mentioned during our discussion — the transfer of civilians into occupied territory. I have no idea whether Russia intends to directly or indirectly transfer Russians into Crimea; Eugene seems to think it does, and I will defer to his greater knowledge of the situation. But my position with regard to that possibility is the same as my position on Israel’s transfer of civilians into the West Bank: whatever the merits of the allegations, the war crime is legally uncertain and factually difficult to prove, especially when the transfer is indirect instead of direct — which it is in the West Bank and would almost certainly be in Crimea. In the absence of other violations of the law of occupation, therefore, I am not sure the OTP would get involved.

I imagine we will have much more to discuss concerning the ICC and Ukraine in the weeks to come!

13 Responses

  1. Re: occupation, yes, the infusion of persons into occupied territory plus the annexation could be addressed if the time period is extended.  And yes, what CAH, w.c., genocide during the time period??

  2. Response… An appeal to the exclusive jurisdiction of the Constitutional Court is overly pedantic and begs the question of its continued viability. The Ukraine has a “provisional” government that can no longer rely on the ability or willingness of the constitutional and regular courts to exercise their jurisdiction in the Crimea. The unavailability or collapse of the national judicial system is one of the things that actually triggers the complementary jurisdiction of the ICC, according to Article 17 of the Rome Statute. If the Ukrainian Court’s are actually willing and able to function, then no interference from the ICC would occur in any event.
    The Russian Federation and Ukraine are both state parties to the Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity. It affirms the raison d’etre of international criminal law, i.e. that certain acts of concern to the international community are considered crimes, for which individual responsibility must apply, without regard to the statutory limitations contained in municipal laws.
    The opinion in the ICJ Arrest Warrants case and the language of the Rome Statute itself indicates that state parties are accepting the inherent complimentary jurisdiction of the Court for crimes committed by heads of state and foreign ministers, not transferring or delegating their own limited jurisdiction to the Court.
    That highlights the fact that international organizations are not merely the sum of their members. The principles expounded in the ICJ’s opinion in the Reparations case indicate that, by deliberately including articles in the Rome Statute affirming the Court’s independent international legal personality and its ability to exercise its jurisdiction on the territory of any state by special agreement, that the members created an entity and empowered it to recognize third party states. Furthermore the Reparations case laid down the principle that the members are bound to respect those agreements concluded by the organization, even if they disagree.
    In light of the fact that new, successor, or continuator states can emerge from armed conflicts, either through secession or the effects of it, the Courts will always have to decide when to treat a new entity or de facto regime as a state capable of concluding valid agreements or committing the crime of aggression. A court cannot determine the question of individual criminal responsibility for aggression, without considering as a preliminary matter the question of aggression by a State. These questions are simply unavoidable. See for example, The Prosecutor v. Slobodan Milosevic – Case No. IT-02-54-T, Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State
    The members have adopted the customary definition of aggression “in accordance General Assembly Resolution 3314 (XXIX)” as an integral part of the new consensus amendments to Article 8 bis. That resolution has always contained an explanatory note which stipulates that the term “State” can be employed without regard to recognition by others or UN membership. So it can be used in the case of a de facto regime or provisional government.

  3. Hostage,

    The new Ukrainian government has never suggested — nor even hinted — that it believes the Constitution has been suspended or that it no longer recognizes the authority of Ukrainian courts. So I don’t see the point of your comment. The fact remains that the Parliament has acted in violation of a judgment issued by the only Ukrainian court authorized to interpret the Constitution. If the Ukraine cannot transfer its jurisdiction to the Court, the Court cannot exercise jurisdiction over the crimes committed in the Ukraine. Perhaps the Court won’t care and will simply defer to Parliament; I acknowledge that likely possibility in the post. But perhaps it will care and will decline to get involved in an internal Ukrainian power struggle. We’ll see.

  4. Response…The new Ukrainian government has never suggested — nor even hinted — that it believes the Constitution has been suspended.
    Fair enough. My rationale is that some of the parties, if not all of the parties concerned, have already adopted extra-constitutional measures. The provisional government in Ukraine impeached Yanukovych, despite the fact that the Rada lacked the proper quorum to do so. The Crimean Parliament held a referendum and voted to join the Russian Federation. Those steps and the limited scope of the Article 12 declaration, which excludes the Crimean territory, casts doubt on idea that some of the players, or any of the players still feel bound by the terms of the existing constitution.
    Re: If the Ukraine cannot transfer its jurisdiction to the Court, the Court cannot exercise jurisdiction over the crimes committed in the Ukraine.
    But the Court did not actually rule that there was a problem with an Article 12 declaration.  For that matter, it acknowledged that there is no constitutional bar to the exercise of jurisdiction over its head of state by international courts under existing international treaties and customary international law that it considered binding on Ukraine. It said that there was no constitutional bar to surrender of its nationals to the ICC or other international tribunals, only a bar to surrender to other states. In fact, it said the provisions and immunities contained in the Constitution only applied to other national tribunals. So, it’s hard to reconcile its conclusion that international jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution, when the Court itself acknowledged existing obligations under other  international treaties and customary international law on that very subject and the foreign ministry insisted that the Rome Statute was no fresh departure from existing practice and did not contradict the Constitution.
    Regarding transfer of jurisdiction under Article 12, Dov Jacobs commented that: “There is no mention of material jurisdiction here. It’s territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. If not this would have two strange consequences 1) let’s imagine a State where a certain war crime was committed but where the prosecution of such a crime would not be possible under its national criminal code. It could still become a Party or make a 12(3) declaration. Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters… 2) at the other extreme, it would mean that any State having implemented universal jurisdiction could make a 12(3) declaration. Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three…”

  5. Not getting involved in internal power struggles is precisely why international bodies will often presume the internal legal validity of a state’s acts rather than purporting to judicially review them.  The Ukraine is a case in point – to take any other stance would naturally draw the comparison with those opposed to the new government, including foreign leader Vladimir Putin, both of whom apparently dispute its legal validity under Ukrainian law.

  6. You are absolutely right: for the ICC to affirm a judgment of Ukraine’s Constitutional Court issued 13 years before the change in government, at a time when Putin was not even Prime Minister, would indeed “naturally draw the comparison with those opposed to the new government.” Silly me for thinking that legitimate governments follow their own Constitution and don’t nullify decisions of their own high courts.

  7. Hostage, 

    Your points are well taken. The new government has indeed shown its contempt for the Ukrainian constitution — and as I said in the post, I would not be surprised if the Court simply deferred to it. My point was simply that it would be unseemly for an international court to ignore an extremely clear judgment by a state’s highest court that its Constitution does not allow ratification of the RS (or, implicitly, ad hoc acceptance of the Court’s jurisdiction).

    That said, the Constitution Court did not limit itself to surrender obligations. It said that Ukraine cannot delegate jurisdiction to an international tribunal. That’s a critical difference. The solution, in my view, is to pressure Ukraine to amend the Constitution and then ratify the RS — not simply ignore the Constitutional Court’s decision.

  8. Dear Kevin, I just read this news: Ukraine leaders propose constitutional change ( There is no mention of the ICC. But the Ukrainian government might take the chance to amend the relevant Constitutional provision in order to allow the ICC to exercise jurisdiction.

  9. Response…That said, the Constitution Court did not limit itself to surrender obligations. It said that Ukraine cannot delegate jurisdiction to an international tribunal. That’s a critical difference.
    Fair enough, these are just my personal views. I’m not arguing that you are incorrect. To be frank, I had trouble following the Court’s tortured logic on what is supposed to be considered an uncontemplated, unconstitutional delegation of the judicial function. For example, the court did not say that the constitution needed an amendment before the head of state could be prosecuted by an international tribunal for any ICC crime under other existing treaties or customary law: “Irrelevance of official capacity (Art. 27 ICC)
    The Ukrainian Constitution sets forth immunities from prosecution for the President, members of the Assembly and judges. The Court was of the opinion that Article 27 of the Rome Statute was not contrary to the immunities granted by the Constitution, since the crimes subject to the jurisdiction of the ICC were crimes under international law recognized by customary law or provided for in international treaties binding on Ukraine. The immunities granted by the Constitution were applicable only before national jurisdictions and did not constitute obstacles to the jurisdiction of the ICC.” (.pdf)
    In general, I think the ICC should adopt a position similar to the Estrada Doctrine and simply assume that any self-referral is a legitimate act of state without regard to recognition, UN membership, & etc. In any event, there is a general principle that individuals cannot invoke state sovereignty as a defense, e.g. Israel v. Eichmann, United States v. Noriega, and Prosecutor v. Tadic. Even if the crime of aggression is not prosecutable, the war crimes and crimes against humanity that accompany it can still be deterred, investigated, and prosecuted.
    I don’t think that the ICC should ever entertain defenses that are based upon conflicting municipal law or the dangerous doctrine that a defendant is free to commit acts against an unrecognized community that would otherwise be considered war crimes or crimes against humanity if they had targeted the civilian population of a “legitimate”, “sovereign state”. For example, Article 7 of the Rome Statute applies to “any civilian population” and its application should not depend upon archaic notions regarding recognition or sovereignty. As I pointed out, I think the collapse or unavailability of the national judicial system, mentioned in Article 17 of the Rome Statute, ought to trigger the court’s jurisdiction and extend the safeguards of the statute to vulnerable populations who have request it via a self-referral. I think the customary law definitions for aggression, which happen to be cited in the amendments to the statute, should be consulted and employed to allow victims to be treated as “states” without further objections regarding recognition or UN membership.  Otherwise, you simply invite aggression against the new entities that emerge from armed conflicts based upon deliberate non-recognition of the new, successor, or continuator states. Ironically, the Russians and Israelis who are mentioned in the article have admitted as much:

        “At the same time, it is impossible to disregard a strange theory advanced here by the representative of Syria and supported, if I am not mistaken, by the representative of France. The substance of that theory is that inasmuch as the territory and frontiers of the State of Israel and its right of existence are contested by some of its neighbor States, the State of Israel does not exist as a sovereign State and cannot be recognized as such. That theory is not only strange but also dangerous. It is reminiscent of the “theories” which, as we all know, were once upon a time preached by the fascist aggressors who claimed world mastery. According to those theories, it was enough for Hitlerite Germany to cast doubt on the existence of one of its neighbor States for that State to cease to exist, and for its territory to be seized and absorbed into the territory of Hitlerite Germany. Such claims were made by the fascist aggressors in respect of Austria, Czechoslovakia and a number of other European countries, including France. In that connection, all kinds of expansionist theories were advanced concerning the inferiority of the people of certain countries, and were used as justification for seizing those countries.

    — Mr. Yakov A. Malik, the 386th meeting of the UN Security Council, S/PV.386, 17 December 1948, pages 12-1
    “[T]he theory that the Charter forbids acts of aggression only against States is utterly without foundation. Indeed, neither Chapter VI nor Chapter VII, in defining threats to the peace or acts of aggression, shows the slightest interest in the juridical status of the victim. The word “State” does not occur in either of those chapters. There is no provision whatever that the attacked party must be universally recognized as a State before an armed attack upon it can be determined as an act of aggression.  … Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used “in any other manner inconsistent with the purpose of the United Nations”. — Mr. Abba Eban, the minutes of the 340th meeting of the UN Security Council, S/PV.340, 27 July 1948, page 12 (pdf)
    Judge Schwebel served as the United States representative on the UN Special Committee on the Question of Defining Aggression. In an essay written before the General Assembly adopted the resolution, he cited the example of Israel’s disputed statehood in 1948 and said there was nothing to prevent members, and everything to compel them, to interpret “States” as embracing entities whose statehood is disputed. He said it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. I think the same principle should apply to the reach of entities that invoke Article 12(3) on their own behalf. He said that was amply demonstrated by the events of the postwar years. The two largest armed conflicts of the time had involved violation of internationally agreed lines of demarcation – and there had been no lack of charges of aggression in those conflicts. Other actual and potential conflicts had involved entities not recognized as States by all concerned, sometimes, by any concerned. He said to exclude this kind of conflict is to ignore both history and current events. Schwebel said that such cases could be easily resolved by referring to the explanatory note in the General Assembly’s definition of aggression which says that the term “State” is used without prejudice to questions of legitimacy, recognition, or to whether a State is a member of the United Nations. See “Justice in international law”, Cambridge University Press, 1994, ISBN 0521462843, page 573-574

  10. I think we have to separate the immunity issue from the delegation of jurisdiction issue. There is a difference between the ICC being able to prosecute a head of state if it got its hands on him and Ukraine being able to delegate its jurisdiction to the Court, whether by signing the Rome Statute or submitting an ad hoc declaration. I read the Court’s opinion to be saying that the latter is impermissible while the former is unobjectionable, which makes sense to me.

    Also, to be clear, I am not claiming, and have never claimed, that a Ukrainian national would be able to raise some kind of defence to an ICC prosecution based on the Constitutional Court’s judgment. My point is that the OTP should take the internal conflict into account when deciding whether to open an investigation, because any investigation could be seriously complicated by domestic litigation within Ukraine — where I assume a suspect facing transfer to the ICC could argue against transfer on the ground that Ukraine’s ad hoc declaration violates the Constitution.

  11. Response…I think we have to separate the immunity issue from the delegation of jurisdiction issue.
    I appreciate your patience. I agree with all of your concerns and don’t view them as mere technicalities. In any event, where the courts can still exercise their jurisdiction and the responsible officials are still willing and able to genuinely carry out the investigation or prosecution of crimes, the ICC has no role to play.
    I would ordinarily agree with your reading of the opinion too, but in this particular case, I just couldn’t follow the logic the Court employed, since the continued applicability of treaties was contemplated by Article 9 of the Constitution – and one of the existing treaties that the constituent assembly was implicitly discussing when it adopted that clause, is the Convention on the non-applicability of statutory limitations, like the ones we are discussing here, to war crimes and crimes against humanity. I agree that an amendment would be needed to delegate judicial functions regarding other portions of the penal code or civil cases. But I don’t see where a constitutional amendment is necessary in the special case of statutory limitations regarding war crimes and crimes against humanity. So long as a simple majority of the Rada has accepted the continued applicability of that convention to those particular categories of crimes, Article 9 of the Constitution says that is the law of the land: “International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.

    The conclusion of international treaties that contravene the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution of Ukraine.”
    I’m just a layman. The whole opinion seems to be susceptible to arguments from a political organ that the Constitution has vested with the necessary legal discretion. The Constitutional Court acknowledged that ICC crimes are the subject of existing treaties that are binding on the Ukraine. But it did not take the next logical step and examine the non-applicability of statutory limitations to ICC crimes in accordance with the terms of those treaties. Article 9 of the constitution itself allowed the Rada, a political organ, the discretion to retain the treaties in force and thus make them part of the national law of the Ukraine, without the need to amend the constitution.

  12. Response…This is a most useful exchange on some of the most vexing issues of our time and which will make the quest for international justice the richer: it doesn’t matter who wins or looses for now.

  13. Response… it doesn’t matter who wins or looses for now.
    If you are looking for good legal analysis, I’d stick with Kevin’s first impressions of the reception the self-referral will get from the Prosecutor.  I’m just pointing out a curious constitutional situation in connection to Article 9 of the constitution and the status of the convention on non-applicability of statutory limitations. I haven’t heard anyone in Ukraine making such an argument. 
    The news reports say the Rada, or Ukrainian parliament, asked the ICC to investigate crimes allegedly committed by former President Viktor Yanukovich in an attempt to put down protests.
    So that argument may come up, but it hasn’t so far.

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