Ukraine’s Perspective on the Long-Awaited Ratification of the Rome Statute and What Comes Next

[Dr Iryna Marchuk is an associate professor at the Faculty of Law at the University of Copenhagen (Denmark)

Dr Aloka Wanigasuriya is an assistant professor at the Department of Law at the University of Southern Denmark (Denmark)]

Introduction 

The international law community is abuzz with the news of ratification of the Rome Statute (RS) by the Ukrainian parliament on 21 August 2024, which was symbolically signed into law by President Zelensky on the Independence Day of Ukraine on 24 August 2024. After many years of delays and misinformation concerning the implications of the ratification for Ukraine, the latest development was welcomed by members of the expert community both in Ukraine and abroad. According to Iryna Mudra, a Deputy Head of the Presidential Office of Ukraine, the work on ratifying the RS was resumed in May 2024. She explained that the first step of the lobbying campaign was to convince the Ukrainian military that the prospective ratification would not pose any additional risks to members of the Ukrainian Armed Forces (UAF).

Rationale Behind the Ratification Bill

Over the years, Ukraine received much criticism for its failure to ratify the RS. Notwithstanding pressure from the international community and pro-ratification lobbying groups in Ukraine, all initiatives aimed at pushing for ratification failed. The situation became somewhat paradoxical, given that all constitutional impediments to the ratification, which were identified by the Constitutional Court of Ukraine (CCU) back in 2001, were effectively removed (see detailed discussion here and here pp. 745-6). Despite refusing to ratify the RS, Ukraine voluntarily subjected itself to the ICC’s jurisdiction by submitting two separate RS Article 12(3) declarations accepting the ad hoc jurisdiction of the Court: the first in relation to alleged crimes committed during the Maidan protests, and the second in relation to alleged crimes committed in Crimea and Donbas. 

At the time of writing, Ukraine has been at war with Russia for a decade, with the entire country feeling the effects following Russia’s full-scale invasion in February 2022. As time passed, the Ukrainian government ran out of justifications for why it had been delaying ratification and it became clear that ratification was only a matter of political will. The registration of the presidential bill on the ratification of the RS on 15 August 2024 at the Ukrainian parliament prompted enthusiastic reactions from all those who followed the process and lobbied for ratification. Iryna Mudra promoted the bill on social media, underscoring the significance of ratifying the RS for Ukraine’s pursuit of accountability for atrocity crimes. Here, she credited the ICC for issuing 6 arrest warrants against senior members of the Russian political and military leadership for alleged international crimes committed in Ukraine. She also highlighted a number of benefits that Ukraine would gain from ratification, including Ukraine’s direct participation in the work of the ICC and its access to the Trust Fund for Victims. In the same post and her subsequent comments, she tried to dissuade any fears that ratification would lead to the prosecution of members of the UAF. The misleading narrative about the ‘dangers’ of ratification linked to the prospective prosecution of members of the Ukrainian military has been widespread within Ukrainian society and political circles. It constituted one of the main impediments to ratification (see Wanigasuriya, Masol). For years, the expert community and Ukrainian NGOs had been highlighting that ratification will not affect the legal parameters of the ongoing investigation triggered by Ukraine’s acceptance of the ad hoc jurisdiction of the court, as the ICC Prosecutor – by virtue of his mandate – is obliged to examine the responsibility of all parties to the conflict, including members of the UAF. Ratification will not drastically change the focus of the ICC’s Office of the Prosecutor’s (OTP) investigation in the situation of Ukraine and compel it to scrutinize the conduct of the UAF. Had the ICC Prosecutor wished to prosecute members of the UAF and apply for arrest warrants, he would have already done so. 

What Is in the Ratification Bill?

Art. 124

A significant and controversial aspect of the bill is Ukraine’s decision to invoke Art. 124 of the RS. Ukraine decided to take advantage of Art. 124 RS (transitional provision), which would preclude the ICC from exercising its jurisdiction over war crimes committed over a period of 7 years following ratification with regard to Ukrainian nationals only. The move has attracted a torrent of criticism (e.g. ULAG, Amnesty), in terms of its impact on Ukraine’s reputation as a champion of international justice, which should instead have embraced the RS fully and unconditionally (Marchuk). In the domestic context, the invocation of Art. 124 declaration is perceived as a “forced compromise” by Ukrainian officials. The compromise ensured that the bill received the requisite support domestically in order for the bill to pass through the parliament. Its inclusion was seen as the only way to dissuade unfounded fears regarding the prospective prosecution by the ICC of members of the UAF. Ukrainian public officials emphasised that invoking Art. 124 was a sovereign right of Ukraine, as well as that Ukraine was entitled to pick nationality over territoriality in limiting the ICC’s war crimes jurisdiction based on a literal reading of the provision. The position is contrary to the argument put forward by Tom Dannenbaum and Kevin Jon Heller who both share the view that Ukraine’s Art. 124 declaration of non-acceptance of the ICC’s war crimes jurisdiction should be construed “as a non-severable jurisdictional package” covering both nationality and territoriality. In its process towards ratification, Ukraine appears to have sought clarification on Art. 124 RS by holding consultations with the ICC Registry. Given the confidential nature of such consultations, it is not publicly known what kind of advice Ukraine received. However, it is unlikely that the ICC Registry was able to offer any substantive advice on the scope of Art. 124 RS. It would indeed be somewhat anomalous for the Court’s jurisdiction to apply fully in relation to all sides as a result of Ukraine’s Art. 12 (3) declarations up until the date the RS enters into force for Ukraine following ratification, and then for a 7-year impunity gap to be created by Art. 124 declaration, only shielding Ukrainian nationals from the prospective ICC war crimes jurisdiction. Ukraine’s “pick-and-choose approach” goes against the very spirit and purpose of the Rome Statute, undermining the remarkable progress that Ukraine has made in its pursuit of accountability for atrocity crimes.

Questions remain regarding the relationship between Ukraine’s open-ended Art. 12(3) ad hoc acceptance of the ICC’s jurisdiction and its Art. 124 declaration (for more, see Dannenbaum, Heller, Zimmermann). The Art. 124 declaration will not have a retroactive effect and will only apply prospectively after Ukraine ratifies the RS. The ratification bill confirms the validity of Ukraine’s acceptance of the ICC’s ad hoc jurisdiction (para. 2). Ukraine appears to accept that the two jurisdictional regimes will run in parallel: Art 12 (3) ad hoc jurisdiction with respect to alleged crimes committed between November 2013 until RS’s entry into force; and thereafter, the ICC’s jurisdiction for Ukraine as a state party, which would exclude alleged war crimes committed by Ukrainian nationals in line with Ukraine’s Art. 124 declaration. However, there is no guarantee that the ICC judges, who have the final say on the matter, will concur with Ukraine’s position regarding the relationship between Art. 12 (3) and Art. 124 RS, as well as the scope of the Art. 124 declaration (for more, see Heller, Dannenbaum and Andreas Zimmermann). 

Kampala Aggression Amendments

Another important aspect of the bill is that Ukraine both ratifies Kampala amendments with respect to the crime of aggression and accepts the ad hoc jurisdiction of the ICC retroactively with respect to the crime of aggression as of 17 July 2018. The ad hoc jurisdiction acceptance is a symbolic gesture, given that the ICC will not be able to try senior Russian leaders in light of Russia’s non-ratification of the RS and Kampala amendments (paras 1 (2) & 2).  

Cooperation

The bill details the process of cooperation between the ICC and Ukrainian authorities. All ICC requests for cooperation should be communicated either through diplomatic channels or sent directly to the Office of the Prosecutor General of Ukraine (with respect to investigation and prosecution) or the Ministry of Justice of Ukraine (with respect to enforcement of sentences and other ICC decisions) (para. 1). The bill also includes a surprising provision that all ICC requests, including any accompanying information, must be communicated in Ukrainian (Ibid). This adds an unnecessary layer of bureaucracy, as Ukrainian officials working in the Office of the Prosecutor General of Ukraine and Ministry of Justice of Ukraine are proficient in English, which allows them to understand the content of legal documents and respond in English. 

Implementing Legislation 

Notwithstanding the ratification of the Rome Statute, it is important to keep in mind that the bill will enter into force together with the implementing legislation (para. 3), which intends to bring the Ukrainian Criminal Code and the Ukrainian Criminal Procedural Code in conformity with the RS. It is somewhat surprising that the ratification bill’s entry into force depends on the subsequent adoption of the implementing legislation. In practical terms, it means that Ukraine is unlikely to deposit its instrument of ratification with the UN Secretary General before the implementing act has been signed into law. Although it is anticipated that Ukraine will move fast with pushing the implementing legislation through parliament, it is hard to estimate whether the process will take weeks, months or longer. All prior legislative initiatives (Bill 2689, Bill 7290) aimed at overhauling Ukrainian legislation and bringing them into conformity with international law never came to fruition. It is hoped that this time will be different, and that Ukrainian MPs will prioritise the adoption of the implementing legislation. To speed up the process, as understood from the comments made by Ukrainian public officials, such legislation intends to introduce absolute minimum changes to the UCC. Regrettably, the broadly formulated Art. 438 of the UCC (violations of the laws and customs of war) will remain unchanged, while its heading will be changed to ‘war crimes’. Additionally, a separate provision on crimes against humanity will be introduced, the definition of the crime of aggression will be aligned with the ICC definition, and the concept of command responsibility will be included. 

What’s Next?

A partial invocation of Art. 124 in the ratification process is a unique occurrence and something we have not yet witnessed in the ICC. Several possibilities exist as to how the Court may respond to Ukraine wishing to avail itself of this provision in order to shield Ukrainian nationals from war crimes prosecutions for a period of 7 years following ratification. It is unlikely that Ukraine will not be able to deposit its instrument of ratification based on its partial invocation of Art. 124, limiting the ICC’s war crimes jurisdiction with respect to Ukrainian nationals. As in the situation of Palestine, which was plagued by jurisdictional uncertainties, the ICC Prosecutor might follow a similar approach in seeking a jurisdictional ruling on the scope of Art. 124 in accordance with Art. 19(3) RS. As a result, two outcomes may be possible:

1. PTC accepts Ukraine’s reading of Art. 124: One outcome, and the one the Ukrainian government might be hoping for, would be for the PTC to determine that Ukraine can in fact utilize Art. 124 in order to shield its nationals from the ICC war crimes jurisdiction for a period of 7 years from the date of ratification.
2. PTC rejects Ukraine’s reading of Art. 124, confirming that the declaration comes as one jurisdictional package: Another outcome might be that the PTC determines that an impunity gap such as the one that would be created by Ukraine’s Art. 124 declaration is impermissible. 

Should the ICC disagree with Ukraine’s selective invocation of Art. 124, Ukraine will have no other choice but to withdraw its Art. 124 declaration, thereby fully embracing the Court’s jurisdiction. One might hypothetically also imagine a highly unlikely scenario that a judicial ruling that disagrees with Ukraine’s Art. 124 declaration would prompt Ukraine to withdraw from the RS. As it stands, the best-case scenario for Ukraine is to get rid of its dubious Art. 124 declaration, which serves no purpose than to taunt its public image as a champion of international justice. All eyes are on Ukraine in the coming months to see whether it can deliver on the promise of adopting the implementing legislation, the fate of which will determine how fast the ratification bill comes into force.