The National Interest: If Ukraine wants the ICC’s help, it must play by the ICC's rules
Kiev can’t have its cake and eat it too.
Since Russia’s seizure of Crimea and its aggression in eastern Ukraine, many in Kiev have taken to the idea of enlisting the help of the International Criminal Court in The Hague to punish those responsible and discourage further belligerence. Political leaders in Ukraine, including President Petro Poroshenko, like to publicly invoke the ephemeral “The Hague” as a judicial instance of last resort when describing the future of President Putin, senior Russian officials, militants in parts of the Donbas region and those responsible for the killings during the Euromaidan protests.
At the same time, the widespread use of such vague term as “the Hague” or “the Hague tribunal” in reference to the International Criminal Court indicates that many Ukrainians—including senior officials—do not understand what the ICC stands for and how it works.
But great expectations that the ICC can help Ukraine address past and present injustices, at a time when most Ukrainians do not trust the judiciary, the prosecutor’s office or the police are—at least, currently—in vain. That is because Ukraine has proven reluctant to submit itself to the Rome Statute, the ICC’s basic document. And yet, without ratifying the Rome Statute, Ukraine cannot indefinitely request help from the ICC to investigate and prosecute alleged international crimes, and will not enjoy all the privileges of a member state. Although ratification would resolve Ukraine’s paradoxical relationship to the ICC and be an important step forward, this will not be a panacea for the issue of persecution of war crimes and similar offenses.
To begin with, the ICC is not a substitute for the Ukrainian authorities. There is a widespread misperception in Ukraine that the ICC will do all the work of the Ukrainian national authorities for them. The court does not usurp the role of national courts in prosecuting international crimes, such as the crime of aggression, genocide, crimes against humanity and war crimes. Only if a state is unable or unwilling to take legal action can the ICC step in and prosecute wrongdoings punishable by international law.
Secondly, the ICC cannot address public demand for justice in full, as it usually focuses only on high-ranking perpetrators of crimes against international law. It does not have the resources to deal with the much larger number of rank-and-file offenders. Likewise, the ICC only considers the guilt of individual offenders and is not a venue for establishing state responsibility for crimes. Also, contrary to the yearning of the Ukrainian public for swift justice, trials conducted by the ICC are costly and time-consuming. Finally, the court does not yet address the crime of aggression. Even if Putin stood trial, he could not be prosecuted for the Russian aggression against Ukraine.
Most importantly, Ukraine is not yet a party to the ICC’s Rome Statute, a treaty that specifies the court’s functions, jurisdiction and structure. It means that it does not enjoy all the rights of a member state, such as sending its judges and other representatives to the court, participating in the Assembly of States Parties, or asking help of the court at any time. At the same time, Ukraine recognized the jurisdiction of the ICC ad hoc, without becoming a full member. By doing so, Ukraine has put itself into an awkward position: the ICC has full jurisdiction over any international crimes committed in Ukraine after November 21, 2013—the beginning of the Euromaidan. Yet, not having ratified the Rome Statute, Ukraine does not enjoy all the privileges of a member state. Nor will the current delay in ratifying the statute, as some seem to assume, protect Ukrainian army personnel, since the ICC already has the ability to bring charges against Ukrainian servicemen under the terms of Ukraine’s partial recognition of its authority. Kiev’s delay of the ratification of the Rome Statute therefore does little more than generate an international misperception that Ukraine has something to hide.
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