Guest Post: Do All Roads Lead to Rome? Why Ukraine Resorts to Declarations Rather than Ratification of the Rome Statute

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Tom Buitelaar is a Researcher with the Global Governance Program at the Institute. With many thanks to Thomas Koerner, Rod Rastan, Dan Saxon and Eamon Aloyo for their helpful feedback on earlier drafts of this commentary. The views expressed here do not represent the views of the Hague Institute for Global Justice. ]

Ukraine is engulfed in a complex and bloody conflict that has cost nearly 8,000 lives and generated over 1.4 million internally displaced persons. The conflict has erupted in different areas of the country and in different forms, from civil unrest and revolution to alleged Russian aggression and illegal annexation of Crimea. The MH17 incident is of particular importance now due to the recent release of the Dutch Safety Board Report on the causes of the crash, which concluded that the plane was hit by a BUK-missile, ruling out other options. Moreover, the UNSC resolution 2166 stipulates that those directly or indirectly responsible for the downing of MH17 must be held accountable and brought to justice. But how can the International Community respond to these challenges and bring those responsible of international crimes and serious human rights violations to justice?

In this regard, on September 8, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration (.pdf) under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory since 20 February 2014. This provision can be used by non-state parties to the Rome Statute – Ukraine signed the Statute, but has not ratified it. This declaration was preceded by the declaration lodged (.pdf) on 17 April 2014, which triggered the Court’s jurisdiction over crimes committed during the events on Maidan square between November 2013 and February 2014, and prompted Prosecutor Ms. Fatou Bensouda to open a preliminary investigation.

With the second declaration, the Ukrainian government postpones the ratification of the Rome Statute, choosing to involve the ICC in a more ad-hoc manner. This approach can be explained by looking both at the legal and political obstacles to ratification.

The main legal obstacle for ratification arises from certain incompatibilities (.pdf) between the Rome Statute and the Ukrainian Constitution. In July 2001, the Ukrainian Constitutional Court (Case N.1-35/2001 [.pdf]) ruled that “some of the Rome Statute provisions were in conflict with the Constitution of Ukraine”. Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the national courts and that judicial functions cannot be delegated to other bodies or officials. Therefore, Ukraine would have to amend its constitution in order to ratify the Rome Statute – as required by Article 9 of the Ukrainian Constitution (.pdf). While for example some countries like Brazil ratified the Rome Statute first on 2002 and amended their constitution later in 2004 – as provided by Article 5(3) of the Brazilian Constitution (.pdf) – this option is not viable for Ukraine.

An interesting question is whether the declarations would also be incompatible with the Ukrainian Constitution. On the one hand, this issue would not affect the legal obligation of a state to a Treaty, pursuant to article 27 of the Vienna Convention on the Law of Treaties (.pdf) (which states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”), or the ICC’s competence per se. On the other hand, this might have legal or practical unintended consequences in the domestic legal order if the Court’s potential decisions, warrants of arrest or requests for judicial cooperation cannot be given effect, or if their lawfulness is challenged at the domestic level.

Besides the legal obstacles there are also several political challenges to ratification. First of all, rule of law reforms—such as those required by ratification of the Statute and the implementation of its cooperation requirements—have shown to be a serious challenge in post-Soviet states. Because of these difficulties, ratification of the Rome Statute was not necessarily seen as a political priority. Secondly, until 2014, there had been no imminent threat of serious civil or international military conflict. Most importantly, armed conflict with potential Russian ‘involvement’ was unthinkable due to the historical, cultural and economic ties between the two countries. Moreover, Ukraine’s government is being increasingly overwhelmed with numerous urgent challenges, particularly since the conflict erupted. These include securing financial resources to avoid economic collapse and fighting corruption as a prerequisite for obtaining international financial aid. Currently, the main reform priorities have been tax reform, anti-corruption, and decentralization (the latter as part of the Minsk Agreements package). Therefore, amendments to Article 124 of the Constitution are only foreseen for the second phase of reforms planned for next year.

In addition to these legal and political challenges there are some misconceptions regarding the repercussions of the ad hoc declarations in particular and ratification as a whole. For example, concerns over the new declaration being in breach of Article 5 of the Minsk II agreement which provides pardon and amnesty to those involved in the conflict in the Donbass region. However, under international law such amnesty has consistently been interpreted as excluding international crimes and gross human rights violations. Therefore, if Ukrainian courts are unable or unwilling to investigate and prosecute such crimes, the ICC’s complementarity principle can be activated, as it is a Court of last resort. Other human rights violations, outside the jurisdiction of the ICC, could ultimately be dealt with by the European Court of Human Rights – both Ukraine and Russia are members of the Council of Europe.

In addition, there have been some concerns over the so called ‘white book’ – with evidence of crimes allegedly committed by the Maidan protesters. Russia did something similar with Georgia after the 2008 conflict, where 3,817 communications were sent to the Office of the Prosecutor by the Russian Federation. These concerns also include potential ICC investigation and prosecution of crimes allegedly committed (.pdf) by pro-Kiev troops and volunteer battalions. Even if this happened, the ICC as a Court of last resort, would only intervene if Ukrainian Courts were unable or unwilling to prosecute those responsible for such alleged crimes.

Another issue that may cause confusion is the fact that the new Ukrainian declaration (.pdf) annexed the Verkhovna Rada Resolution of 4^th February 2015 which its aimed only at crimes by “Russian” and “terrorist” forces. However, the declaration itself is neutrally formulated—accepting the jurisdiction of the Court over crimes committed by all perpetrators—and it should be interpreted accordingly. As experienced in the Ugandan situation (.pdf), a referral allows the ICC to investigate and prosecute all-encompassing parties to the conflict. Furthermore, Rule 44 of the Rules and Procedure of Evidence of the Court stipulates that a declaration has the consequence of accepting jurisdiction with respect to the crimes of relevance to the situation, therefore a State cannot make a declaration for one side only. Similarly to the Palestinian declaration and later accession to the Rome Statute, the ICC sword cuts both ways. However, if the Ukrainian justice system is able and willing to investigate and prosecute such crimes, the ICC would not have to intervene.

Finally, there are some misconceptions regarding the crime of aggression relating to the situation of Crimea. The ICC has no jurisdiction over this crime yet – only after 30 Member States ratify the 2010 Kampala Amendments to the Rome Statute (.pdf) , scheduled for 2017. So far only 24 states have ratified them and the Court’s jurisdiction is limited to those states parties.

Despite these obstacles to and misconceptions about ratification, it is likely that the Ukrainian government decided to lodge another Article 12(3) declaration because of two particular issues. First, even if Ukraine decides to ratify the Rome Statute, this would not be enough to enable the Court’s jurisdiction over crimes currently being committed, as the Court can only adjudicate crimes which occur 60 days after the ratification date (art. 126 of the Statute). In order to address current crimes, a referral would need to be accompanied by a declaration to cover past events (as foreseen in art. 11(2) of the Statute), as was done by Uganda for example. Therefore, declaration under article 12(3), even without ratifying the Rome Statute, would in any event be the quickest and most suitable option to address the crimes that have been committed in Ukraine thus far. A combined reading of the two declarations means that the ICC now has jurisdiction from 21 November 2013 onwards. In this regard, on 29 October the ICC Prosecutor extended the time frame of the preliminary examination of the situation in Ukraine opened on 25 April 2014. Moreover, since there is no end-date in the new declaration, crimes committed after the lodging of the declaration might still fall under the Court’s jurisdiction. It is important to note for example that the Ivory Coast’s (.pdf) declaration back in 2003 did the same thing but the Office of the Prosecutor opened an investigation only for events in 2010. This open-ended declaration is in a way a quasi-ratification of the Rome Statute, although it does not imply the same rights (Art. 53 of the Statute regarding the initiation of an investigation by the Office of the Prosecutor) and obligations (e.g. Art. 88 of the Statute regarding availability of procedures under national law) stricto sensu. For example, article 88 does not necessarily apply to the general legal framework of the country but must enter into effect at least for specific cooperation to a degree sufficient for the ICC organs to be able carry out their work.

Secondly, it is likely that the Ukrainian government sees the Article 12(3) declaration as their only remaining option to address the crimes that have been committed in the conflict, and perhaps even hope for a potential deterrence effect of the Court. The UN Security Council’s inertia, due mainly to the Russian veto powers, makes any UN intervention unlikely. This is exemplified by the recently vetoed UN Security Council resolution aiming at setting up an international tribunal to prosecute the individuals responsible for downing MH17 (see previous guest-post here on this issue). Other regional organisations, such as the OSCE, the EU, the Council of Europe or even NATO, have limited mandates or insufficient tools to tackle the challenges posed by the Ukrainian crisis. While in the long-term, ratification of the Rome Statute would be a positive development, the legal obstacles, the current difficult political realities, and the involvement of great powers in the region make it unlikely to happen any time soon. In the meantime, this new declaration seems to be the only way to hold accountable those responsible for the most serious crimes.