Challenges and possibilities of ratification of the Rome Statute for Ukraine in the struggle for justice
President of Ukraine Volodymyr Zelenskyy submitted to the Verkhovna Rada a draft law on the ratification of the Rome Statute of the International Criminal Court (ICC). This step could become a turning point for Ukraine, which is opposed to the Russian Federation. The Rome Statute, ratified by 124 countries, remains a hotly debated topic for Ukraine, which has not only legal, but also political and social dimensions. It is important to understand what this step means for our country, and why there is a need for ratification right now.
What is the Rome Statute and why is it important for Ukraine
The Rome Statute was adopted on July 17, 1998 in Rome and entered into force on July 1, 2002. This international treaty established the International Criminal Court, whose jurisdiction extends to the most serious crimes such as genocide, war crimes, crimes against humanity and aggression. Of the 137 states that signed it, only 124 have ratified it. It is the ratification of the Rome Statute that gives the ICC the authority to act on the territory of one or another country. At the same time, a participating state, the UN Security Council or the prosecutor of the court on his own initiative can submit a request to the ICC with a request to start an investigation. The court has the right to hear the case only if the country in whose territory the crime was committed, or if the accused is a citizen, has ratified the Rome Statute.
For Ukraine, this issue is extremely important, as the ratification of the Rome Statute will make it possible to bring to justice those guilty of war crimes committed during the armed conflict with Russia. Without this document, Ukraine is limited in its ability to use international justice to protect its citizens and bring to justice the Russian military and mercenaries who have committed crimes on our territory.
Ukraine officially recognized the jurisdiction of the International Criminal Court based on two separate statements submitted by the Ministry of Foreign Affairs. The first statement, submitted on April 17, 2014, related to events related to the Maidan, and the second, dated September 8, 2015, covered war crimes and crimes against humanity committed on Ukrainian territory. However, the second statement did not mention the crime of genocide. However, on March 2, 2022, the chief prosecutor of the ICC, Karim Khan, expanded the interpretation of Ukraine’s consent, including the crime of genocide.
In addition, the International Criminal Court has already recognized the situation in Crimea as an international armed conflict between Ukraine and Russia. This legal recognition is critical, as it opens the possibility for Ukraine to hold Russia accountable for violations of international law, in particular for the actions of its high-ranking officials responsible for human rights violations in the occupied territory of Crimea. However, now the situation is much more complicated. In its report, the ICC recognized that the military conflict in Ukraine has the characteristics of both an international and non-international conflict. This creates a serious legal dissonance and makes it difficult to qualify events. For example, international law recognizes that there may be signs of both external aggression and internal conflict in Donbas, which partly shifts responsibility to Ukraine. This legal dissonance has serious implications for the ability to prosecute high-ranking Russian officials at the international level. If the conflict in Donbas is recognized as internal, it may complicate the legal process against Russia and reduce the chances of successfully prosecuting the perpetrators at the international level. Conversely, recognition of the conflict as international creates a solid legal basis for trials within the ICC.
Historical aspect
Modern history knows only a few cases when high-ranking officials of various countries were prosecuted for serious crimes that they personally committed or managed. The most famous of such examples are the Nuremberg and Tokyo trials, the International Tribunal for the former Yugoslavia and the International Tribunal for Rwanda. These tribunals had one feature: they were created specifically and for a limited period to consider specific crimes in which heads of state were accused.
Unlike them, the International Criminal Court was founded with the goal of becoming a permanent international judicial body capable of prosecuting the most serious crimes of any person, regardless of their status – from presidents to ordinary executors. The ICC’s activities were based on the principle enshrined in the Rome Statute: “The most serious crimes that are of concern to the entire international community should not go unpunished.” During the signing of the Rome Statute, UN Secretary General Kofi Annan emphasized that the creation of this Court gives hope to future generations and is a significant step forward in ensuring human rights and the rule of law.
However, already at the stage of the creation of the ISS, several “features” were laid that could not but affect its work. First, during the preparation of the Statute, it was decided to limit the list of crimes under the Court’s jurisdiction to only four categories: genocide, war crimes, crimes against humanity, and aggression. This became a problem because some of the most important crimes, such as aggression and terrorism, did not fall within the scope of the ICC. The content of the concept of “aggression” appeared in the Statute only in July 2018, and according to the norms of the Statute, the Court can investigate only those acts of aggression that occurred after that date. As for terrorism, the Statute does not contain such a concept at all, and therefore the Court does not have the authority to consider crimes related to terrorist activities.
In addition, the Charter itself contains a number of controversial provisions. For example, the destruction of a civilian object is not considered a war crime if it was unintentional. By this logic, the downing of flight MH17, which killed 298 people, cannot be considered a war crime if it was unintentional. In addition, according to the Charter, a person is exempt from responsibility for war crimes if he was not aware of the illegality of the orders of his leadership or that he was participating in an armed conflict between states. This provision is particularly problematic in the context of Russian propaganda, which insists that the conflict in eastern Ukraine is an internal civil conflict.
Also, some norms of the Statute contradict the general principles of criminal law. For example, according to the general rule that applies in Ukraine, the state of intoxication does not exempt from responsibility, on the contrary, it increases it. However, according to the Statute, the state of intoxication, which prevents a person from realizing the illegality of his actions, may be the basis for exemption from responsibility. This is a serious concern, since forensic medicine includes intoxication not only with alcohol, but also with toxic or narcotic substances.
The main disadvantage is that the ICC is not part of the UN, and its decisions are not binding on all states. The ICC works as a treaty court, whose decisions are enforced by states that have not ratified the Statute on a voluntary basis. This means that the ICC, like international commercial arbitration courts, relies on national law enforcement agencies to enforce its decisions, as it does not have its own enforcement structures.
During the jubilee meeting of the countries participating in the Rome Statute, the representative of Great Britain, Andrew Murdoch, emphasized the problems of the Court, saying that in the 20 years of the Court’s work, only three verdicts were issued, while the costs of its activities amounted to 1.5 billion euros. This speaks to the low efficiency of the Court: in all the years of its existence, only three people were sentenced according to the gravity of their crimes, and only one of them was a high-ranking official.
One of the clear examples is the case of the President of Kenya, Uhuru Kenyatta, which was considered by the ICC for more than six years. He was accused of involvement in the deaths of more than two and a half thousand people, but during the investigation, which continued, he was even re-elected as president in 2013. In 2014, all charges were dismissed due to the weakness of the ICC prosecutors’ position.
Another example is the case of the President of Sudan, Omar al-Bashir, who was persecuted for more than ten years for crimes in the province of Darfur, where more than 300,000 people died. Despite this, al-Bashir continued to move freely around the world even while in power. Two of the countries al-Bashir visited, South Africa and Jordan, are parties to the Rome Statute, but the ICC has been unable to secure his arrest, citing the fact that Sudan has not ratified the Statute and is therefore not bound by its requirements. As a result, the Republic of South Africa, Burundi and The Gambia withdrew from the Rome Statute, saying they no longer trusted the ICC, which had failed to arrest a criminal on the territory of a state party.
These examples testify to the still low level of trust in the ISS. Countries do not refer to it because the Rome Statute limits the sovereignty of states, and the ICC operates according to the principle of complementarity, that is, it can be involved only when national law enforcement and judicial authorities declare their inability or unwillingness to conduct their own investigation.
Why Ukraine has not yet ratified the Rome Statute
Ratification of the Rome Statute in Ukraine was repeatedly postponed due to a number of political, legal and social reasons. A few years ago, the issue of ratification of this document caused sharp disputes among Ukrainian politicians, military and lawyers. In particular, the Ministry of Defense, the General Staff and the President’s Office feared that the ratification of the statute could lead to the prosecution of Ukrainian military personnel for war crimes on a par with Russian military personnel. This fear was based on the belief that the ICC could be used as an instrument of political pressure on Ukraine, especially in the context of the long-term conflict in the east of the country.
Earlier, representatives of the authorities stated that the ratification of the Rome Statute was not in time before the end of the war. In particular, the deputy head of the President’s Office, Andriy Smirnov, commented to Radio Liberty that this step should be postponed until victory. Minister of Justice Denys Malyuska also agreed with this, stressing that for a long time there was a false information campaign surrounding the Rome Statute, which claimed that its ratification could threaten Ukrainian military and volunteers with arrests abroad. He called this information unreliable and false.
One of the main arguments against ratification was that Ukraine should first end the war and only then decide on international legal obligations. Politicians also expressed concern that ratification of the Rome Statute could lead to a loss of sovereignty and control over the country’s internal affairs. These fears were supported by a number of politicians who believed that ratification of the charter could harm Ukraine’s national interests and make the Ukrainian military vulnerable to persecution by international organizations.
However, this position began to change under the influence of several factors. One of the main factors that influenced the change in the position of the Ukrainian leadership was the realization that servicemen who actually committed war crimes already fall under the jurisdiction of the ICC based on two declarations submitted by Ukraine in 2014 and 2015. This means that even without the ratification of the Rome Statute, these military personnel will not be able to escape responsibility if their actions violate international humanitarian law. Thus, the arguments against ratification began to lose their relevance, and the Ukrainian political community gradually came to understand that the ratification of this document is inevitable.
Another important factor was the understanding that the ratification of the Rome Statute will allow Ukraine to actively influence the activities of the ICC, to nominate candidates for the positions of judges and prosecutors, as well as to participate in the formation of the policy of this court. This will give Ukraine the opportunity to have a strong say in international cases related to war crimes and other serious violations of international law.
However, the main question remains whether Ukraine is ready to take on all the legal and political consequences associated with the ratification of the Rome Statute. Opponents of the move continue to argue that ratification could lead to a loss of control over domestic affairs and make Ukrainian officials vulnerable to prosecution by international organizations.
Currently, although the ICC already has certain powers to consider such cases, full ratification will speed up legal processes and allow Ukraine to become an active participant in international justice. It will also strengthen Ukraine’s position in the international community, as Russia tries to avoid responsibility for its actions. In addition, it is important that as many countries as possible ratify the Rome Statute, as this strengthens the ICC’s ability to act effectively against states that violate international law. Ukraine should be interested in this process, as it gives it the only real chance to achieve justice for its citizens and hold high-ranking Russian officials accountable for the aggression.
Contemporary controversial issues and the future of the International Space Station in Ukraine
The ratification of the Rome Statute in Ukraine is not only a legal, but also a political issue that has profound consequences. One of the biggest challenges is how the ICC will interact with the Ukrainian judicial system and how its jurisdiction will be exercised in the context of a protracted conflict. Some experts fear that the International Criminal Court may become an instrument of political pressure, especially when it comes to investigations against Ukrainian officials. At the same time, supporters of ratification note that this step will strengthen Ukraine’s position in the international arena and ensure justice for the victims of the war.
Ukraine is now in a situation where its role in the activities of the International Criminal Court is limited. Although non-ratification of the Rome Statute does not create significant obstacles for the jurisdiction of the ICC, ratification would open up additional opportunities for Ukraine. For example, a country could actively participate in determining the organizational processes of the ICC, including the possibility of nominating candidates for key positions such as prosecutor or judge. It is important to have your own representatives in the secretariat, which plays a significant role in the preparation of draft decisions, because it depends on which cases and in what manner they will be considered.
The Constitution of Ukraine mentions the Rome Statute, noting that the country can recognize the jurisdiction of the International Criminal Court under the conditions defined by this document. Moreover, the ratification of the Rome Statute is an obligation of Ukraine in accordance with Articles 8 and 24 of the Association Agreement with the EU, signed and ratified in 2014. This means that Ukraine is not only legally obliged to ratify this statute, but must do so in order to meet its international obligations and become a full member of the European community.
The authorities in Ukraine now believe that the state should have ratified the founding document of the International Criminal Court a long time ago, because this would allow it to become a full member of international criminal justice. This would not only ensure the possibility of prosecution for international crimes, but would also allow Ukraine to actively implement universal jurisdiction, which is an important step in the fight against impunity.
By not ratifying the Rome Statute, Ukraine is wasting time and losing the opportunity to advance its agenda within the ICC. This is particularly important in the context of international crime investigations, where the ICC has unique powers to issue arrest warrants for high-ranking officials, including top Russian officials, politicians and propagandists. The Rome Statute provides that even the highest officials are not protected by immunity from liability before the court, which makes this mechanism especially important for Ukraine in the conditions of aggression from Russia.
Also, according to the initiators of the ratification of the Rome Statute, this will open up other important opportunities for Ukraine – cooperation with international experts who have extensive experience in the field of international justice; participation in the elections of the prosecutor of the International Criminal Court; possibility to propose candidates for judges; impact on the distribution of the ISS budget; and even introducing proposals to the agenda of the Assembly of participating states. All this will help Ukraine to build its national hybrid mechanism of justice, which will combine international experience and national realities, making our country a full-fledged and active participant in international criminal justice.
According to the Rome Statute, the International Criminal Court already has the authority to consider cases related to crimes against humanity and war crimes committed on the territory of Ukraine. Therefore, from a legal point of view, the presence or absence of ratification of the statute does not change the basic jurisdiction of the court. However, the ratification of the Rome Statute has significant additional aspects – international, political, legal and criminal. All these aspects strengthen Ukraine’s ability to protect its national interests, in particular, through active participation in the work of the ISS. This includes the possibility of holding the Russian military-political leadership accountable for the most serious international crimes, such as genocide.
Therefore, despite numerous shortcomings in the work of the International Criminal Court, including limited jurisdiction, a small number of verdicts and difficulties with the implementation of its decisions, the ratification of the Rome Statute still remains an important step for Ukraine. After all, it will not only open access to international justice, but also allow Ukraine to become an active participant in the global process of fighting impunity. This will provide an opportunity to influence the decisions of the Court, to nominate their representatives, to ensure their national interests within the framework of the international legal field.
In addition, even with all the difficulties, the ICC remains the only international body that can bring the highest officials to justice for the most serious crimes. For Ukraine, this means having an additional tool in the fight against aggression, which will increase international pressure on Russia and ensure justice for the victims of the conflict. The ratification of the Rome Statute also signals Ukraine’s readiness to adhere to the principles of the rule of law and human rights, which will strengthen its position in the international arena and contribute to further integration into the European community.
