International Criminal Justice in Ukraine

This is an updated version of the commentary which originally appeared on 14 January 2015.

The Minsk II-accord, which was struck last week by negotiators from Germany, France, Russia and both sides of the Ukrainian conflict, offered a glimmer of hope for a reduction of violence. However, even though in some areas a ceasefire has been implemented, intense fighting continues in other parts of Ukraine, especially around the contested town of Debaltseve. It shows that a significant number in both camps still has little faith that a negotiated compromise will put an end to the violence, which has already killed over 5,300 people.

This lack of commitment is clearly complicating attempts to find a workable ceasefire in the short term. But in the longer term, the continuation of hostilities is also darkening prospects for a transition to a sustainable peace. Such a transition will have to come to a reckoning with Ukraine’s intensely violent recent past. Both government troops and rebel fighters have been accused of committing war crimes. If guilt is to be individualized, impunity counteracted, and incentives for revenge killings taken away, holding accountable those most responsible for the alleged war crimes should be an integral element of any attempt to find a sustainable peace in Ukraine.

It would be best to pursue these efforts in Ukraine itself. However, the immense polarization between pro-European and pro-Russian elements in Ukrainian society might make it harder for the Ukrainian authorities to organize independent and fair trials. As an impartial outsider, the International Criminal Court (ICC) can overcome some of these issues, and assist the Ukrainian people in a quest for justice. However, as argued below, the ICC faces unpromising circumstances in Ukraine, limiting the potential for a successful pursuit of international criminal justice.

Apart from Belarus, Ukraine is the only European state that is not a state party to the Rome Statute for the International Criminal Court. Yet, on April 17, 2014, the Ukrainian government acted on Article 12 (3) of the Rome Statute to refer to the ICC jurisdiction over all grave crimes committed between 21 November 2013 and 22 February 2014, which saw protesters from the Euromaidan movement ousted President Viktor Yanukovych from power. Clearly, Ukraine intended to exclusively target former regime officials for the killing of over a hundred protesters. The referral text even explicitly called on the ICC to prosecute Yanukovych. Nevertheless, the ICC has officially accepted the referral and, as a matter of policy, opened a preliminary examination.

There is a separate case to be made for a full ratification of the Rome Statute by the Ukrainian government. Doing so would aid Ukraine’s self-stated desire to join the Club of Europe, showing that it is serious about the protection of human rights. ICC involvement might galvanize international support for transitional justice efforts. Under ‘positive complementarity’, the ICC could furthermore assist Ukraine in attempts to pursue fair domestic trials.

As it is now, however, the referral poses an obvious threat to the perceived impartiality of the ICC. The temporal limit to its jurisdiction will probably lead to prosecutions of only one side in the conflict, reinforcing allegations that the ICC only prosecutes individuals who are politically isolated or who oppose cooperating governments. Furthermore, there is the issue of gravity, an obscure legal construct which guides decisions on a case’s admissibility on the basis of how grave the alleged crimes are. Although there are no clear rules to determine whether this criterion has been met – it is not based on numbers alone – there is some legal precedent (specifically in a dissenting opinion in the Kenya case) to indicate that the situation in Ukraine will not meet the gravity requirement.

To address some of the partiality concerns and facilitate the fulfilling of the ‘gravity’ requirements, the ICC’s involvement in Ukraine can be extended to cover the conflict in its entirety. This could be done by a temporal extension of the referral either by the Ukrainian government or by a UN Security Council resolution, which, however, is unlikely because of the Russian veto there.

This brings us to one of the more complex issues the ICC would have to face: the (direct or indirect) Russian involvement in the conflict. It is unclear what stance Russia would take on an ICC investigation. On the one hand, it is possible that Russia would be hesitant as it might subject the pro-Russian rebels to international legal scrutiny and expose potential Russian assistance to them. The Russian veto of a Security Council resolution referring of Syria to the ICC is not a promising precedent. On the other hand, some commentators have argued that there are grounds for optimism. In the Georgia situation, where the ICC conducted a preliminary investigation after a short Russo-Georgian war in 2008, the Russian government did not openly oppose the ICC’s involvement, claiming that it did not break any laws and therefore did not fear legal scrutiny. Russia might take a similar stance in Ukraine. In the end, as for many other countries, the Russian willingness to cooperate with the ICC will mostly be determined by how it serves the country’s self-perceived national interests. It is therefore hard to predict whether Russia will walk the ‘Georgian’ or the ‘Syrian path’.

The ICC may also face its own dilemmas in dealing with the Ukrainian crisis, linked to the Court’s underlying weaknesses. Russian non-cooperation, coupled with expected resistance by pro-Russian separatists, wouldunderscore a key problem the ICC is already facing: its powerlessness in the face of insufficient state cooperation. There is little chance that the ICC would be able to secure the arrest of suspects who flee to Russia if the country does not cooperate. In addition, in order to maintain a reputation of impartiality, the ICC would have to seriously consider prosecuting Ukrainian government officials for war crimes. It is worrying, then, that previous experiences have shown that governments are reluctant to cooperate in prosecuting their own officials, sometimes even threatening to end cooperation with the ICC. The Court might thus face an impossible dilemma: either risk being perceived as partial or risk a loss of state cooperation.

The limited opportunities for a successful pursuit of international criminal justice, might prompt Ukraine to consider alternative mechanisms for post-conflict reconciliation. The Minsk II-accord included amnesties for all those involved in the fighting. Although amnesties can sometimes contribute to a peaceful transition, granting blanket amnesties to all involved would seriously undermine the prospects of justice for the victims of the conflict,not least for the 298 people who died in last July’s downing of the civilian airliner MH17. In the end, it is up to the Ukrainian people (not just its government) to decide how to obtain a just and successful transition to peace. In the meantime, the ICC can show a willingness to play a constructive role in assisting the Ukrainian people in achieving this goal by signaling more clearly its intentions with the preliminary investigation. An active stance might also serve the Court’s own interests: ICC involvement could offset some of the current accusations that the Court is biased towards Africa, which has decreased the ICC’s perceived legitimacy, especially in Africangovernment circles. Regardless of the mechanisms chosen, however, in order to facilitate justice for survivors it is imperative that human rights monitors or government officials make concerted and sustained attempts to collect evidence of alleged crimes. In this way, crucial evidence will not be lost and the possibility of (international) criminal justice processes remains alive.

* I wish to thank Dr. Eamon Aloyo, Mark Bailey, and Dr. Aaron Matta for their helpful comments on earlier drafts of this commentary.

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