Does Ukraine Need a New Tribunal or a Stronger ICC?
Legal experts note that the task ahead is on a monumental scale, with the Hague-based body already in a sensitive position.
Justice ministers are meeting at a high-level London summit aimed at increasing financial and technical support for the work of the International Criminal Court (ICC) in Ukraine, days after its pre-trial chamber issued an arrest warrant for Russian President Vladimir Putin.
On March 17, Putin and Russian presidential commissioner for children's rights, Maria Lvova-Belova, were accused of the war crime of illegally deporting hundreds of Ukrainian minors.
Yurii Belousov, head of the war crimes department of the Ukrainian prosecutor general’s office, told IWPR that this was a landmark moment in the search for international justice for Ukraine, adding, “In my opinion, we still do not even realize the consequences of this decision. They will only fully manifest themselves later, and this is only the first step.”
Nonetheless, experts note that what awaits the court in Ukraine is a task on a whole new, monumental scale, with the ICC already in a sensitive position.
“Even before the war against Ukraine, the effectiveness of the ICC model was increasingly under question,” Oleksandr Vodiannikov, a lawyer who advises Ukraine’s Commission on Legal Reform, told IWPR. “Since it began operating in July 2002, it has only completed an investigation and issued a decision on four people… If the investigation does not culminate in an indictment against the top leaders of the aggressor country, or if such an indictment is made, but the defendants cannot be detained, the legitimacy of the ICC and, in general, its future may suffer irreparable damage.”
Belousov acknowledged that while the likelihood of Putin and Lvova-Belovatrial being detained and put on trial was slim, the move had extremely serious political implications.
“Now the political leaders of other countries will think 100 times whether to continue direct contacts with these people [and] interaction between states at the economic and political levels,” he said. “They will understand that they are collaborating with a political criminal. After all, everyone understands that the ICC would never put a person on the wanted list if it did not have enough hard evidence for this.”
The court’s effectiveness will depend on the synergy with Ukraine’s national investigative bodies and supporting states as well as the necessary increase of the resource base at the disposal of the chief prosecutor. This is currently insufficient to meet the geographical, subject and object scales of the war crimes committed in Ukraine.
Since May 2022, Ukraine has tried and sentenced some Russian soldiers in its national courts for crimes committed during the invasion. The ICC’s warrants come a year after its chief prosecutor Karim Khan opened the first investigation, on March 2, 2022, at the request of 43 nations that are state parties to the court.
The ICC’s jurisdiction remains a crucial challenge. Calls have increased to create a special tribunal for Russia’s aggression against Ukraine specifically to fill the vacuum in international criminal justice and complement the ICC as it currently cannot investigate the crime of aggression when it comes to Ukraine.
Kyiv has consistently made the case to establish such an ad-hoc mechanism: as it is not a signatory of the Rome Statute, the treaty that laid the foundation of the court, Ukraine is not subject to its jurisdiction, either if the crime of aggression is committed by its nationals or on its territory. Russia has not ratified it either. However, since 2015 Ukraine has twice exercised its rights to accept the court’s jurisdiction over alleged crimes occurring on its territory in accordance with Article 12(3) of the Statute.
“The crime of aggression in the Rome Statute has a limited jurisdiction,” Nadiya Volkova, director of the Ukrainian Legal Advisory Group, told IWPR. “I understand that [the conference] is linked to conversations regarding the creation of a tribunal on aggression, because the ICC’s prosecutor spoke out against it.”
In December, Khan criticised plans to establish the tribunal, stating that what was needed were not new institutions but support for existing ones like the ICC.
Vodiannikov maintained that a possible solution could be either to amend the court’s statute, expanding its jurisdiction to make the crime of aggression universal, or create an ad-hoc tribunal modeled on the Nuremberg and Tokyo tribunals.
“Both options are sensitive for the ICC,” he continued. “The first option may encounter resistance from some member states, which will slow down the process [of amending the statue], stretching it for years. This will negatively affect the perception of the court’s legitimacy. The second will highlight the deficiencies of the ICC’s jurisdiction model, prompting questions about its very existence.”
The lawyer believed that participants of the London conference were aware of the dilemma, “but these delicate issues are likely to remain behind the scenes”.
This is the latest of a series of high-level discussions centreing on the justice mechanisms needed to ensure accountability, and Volkova maintained that decisions would also require Kyiv to act.
“If the conference results in ICC’s member states supporting [further] the court in the future, to strengthen and develop it, then it will be important for Ukraine to ratify the Rome Statute and become a full member of the ICC. This should be a principled position for Ukraine,” the lawyer told IWPR, adding that otherwise whatever statement in support of the ICC was made “will not sound sincere, since we have not yet ratified the statute. It is obvious that there is no will for this at the political level”.
There are also procedural issues: Ukraine will have no rights other than sharing case materials, providing access to crime scenes and communicating with authorities. It will have no say in any decision, including the appointment of the judges, the selection of those who will hear its cases or the court’s budget.
The London conference is of great importance for Ukraine as analysts expect that Khan's resource base will be significantly increased, both in financial and human terms, including the provision of experienced personnel seconded by member states to support his work.
The British and Dutch governments, which organised the conference, have supported the ICC’s efforts with regards to Ukraine, providing financial contributions and specialised personnel, including investigators, prosecutors and forensic teams.
The expectation is also of enhanced support programmes for national investigative bodies and courts for effective investigation and prosecution of war crimes and crimes against humanity committed during the aggression against Ukraine, as well as for the protection of victims and witnesses.
Belousov noted that the arrest warrants for Putin and Lvova-Belova had been the result of intense cooperation between multiple agencies including the office of Ukraine’s prosecutor general, police and security services.
From a legal point of view, he continued, a wanted list gave grounds for the search and seizure of assets held by Putin and Lvova-Belova in countries that had ratified the Rome Statute. He said that the ICC move would also impact on those in Putin’s inner circle, making clear that they could face charges too.
“Serious doubts will arise in the country, and this will help ensure that more and more people from Putin’s entourage will be ready to cooperate with international and Ukrainian law enforcement agencies,” Belousov concluded.