Why Has Ukraine Not Ratified the Rome Statute?
Myths and misunderstanding have prevented Kyiv from joining the ICC.
The Rome Statute is the agreement on the basis of which the International Criminal Court (ICC) was founded and operates. Ukraine is not a party to the Rome Statute, although it uses a special procedure for recognizing the court’s jurisdiction for non-member states that want the ICC to investigate international crimes committed on their territory.
With the ICC seen as key to international justice efforts in Ukraine, Gaiane Nuridzhanian, an associate professor in Kyiv-Mohyla Academy with experience of working at the ICC, explained to IWPR why it remains important for Kyiv to ratify the Rome Statute.
IWPR: Why has Ukraine not ratified yet the Rome Statute?
Gaiane Nuridzhanian: Initially, the obstacle was the conclusion of the Constitutional Court of Ukraine from 2001 that the provisions of the Rome Statute don’t correspond to the constitution of Ukraine. It was about the fact that the ICC "supplements the national bodies of criminal justice" which was inconsistent with the constitution which doesn’t provide for the possibility of "supplementing the judicial system of Ukraine". However, this obstacle was removed in 2019 by changing Article 124 of the constitution of Ukraine.
Instead, myths arose around the Rome Statute and the ICC in the highest political circles of Ukraine, all because of a misunderstanding of how the ICC and the Rome Statute work. You can often hear the following: if Ukraine ratifies the Rome Statute, it will give an opportunity for its provisions to be abused in order to persecute the Ukrainian military.
However, the more discussions and debates in society regarding ratification, the clearer it becomes that this is a misunderstanding of how the ICC works.
Doesn’t the ICC already have jurisdiction, based on Ukraine's recognition in a special order?
In 2015, parliament adopted a resolution recognizing the ICC's jurisdiction over crimes against humanity and war crimes committed by "senior officials of the Russian Federation and leaders of the terrorist organisations DPR and LPR [the so-called Donetsk and Luhans Peoples’ Republics]."
Perhaps this is where the idea emerged that Ukraine has the right to specifically outline which crimes and who the ICC can investigate, when the state recognises its jurisdiction. But this is a misunderstanding.
The prosecutor of the ICC determines how to qualify the actions within these geographical and temporal frameworks, whose actions they are and what actions to investigate, regardless of whether the suspect belongs to one side of the conflict or another. This is natural. After all, the prosecutor is, in a certain sense, an independent body. The government cannot control his actions.
Perhaps because of this, a false impression was formed. Having recognised the jurisdiction, Ukraine has, in fact, given the ICC the opportunity to investigate all crimes within its jurisdiction that are committed on its territory, and ratification won’t change that.
Does the fact that Ukraine has not yet ratified the Rome Statute hinder efforts to bring war criminals to justice?
This doesn’t interfere with the work of the ICC and doesn’t limit it. The court is equally empowered to investigate war crimes and other crimes committed on the territory of Ukraine. And Ukraine is obliged to cooperate with the court. When the state submits a special declaration, it also undertakes to cooperate with the court.
In addition, many member states of the Rome Statute support the work of the ICC, either financially or by providing investigators for the ICC team, to ensure the effective investigation of crimes committed in Ukraine - and this despite the fact that Ukraine hasn’t ratified the Rome Statute.
How would joining the court strengthen Ukraine's ability to protect national interests?
If Ukraine ratifies the Rome Statute, it will support the system of international criminal justice. The more countries join, the stronger this system is.
If we don’t ratify the Rome Statute, then we will be contradicting ourselves. After all, on the one hand, Ukraine demands support from other states and says that international law and mechanisms should work and bring people to justice for international crimes.
On the other hand, Ukraine doesn’t want to support and implement this system. So, Ukraine mostly loses its moral capital.
In addition, currently Ukraine has an obligation to cooperate with the ICC, but has no influence on its work. We cannot elect judges, initiate changes in the Rome Statute or court regulations.
Ratification can also be an impetus to improve Ukrainian legislation. It’s important to note that the RS does not oblige states to implement its norms into national legislation, but many states do it. After all, this makes the legislation more modern and harmonises it with international standards.
The lack of norms in the national legislation of Ukraine, which would contain specific and clear definitions of war crimes or crimes against humanity, prevents effective investigation of war crimes in national courts. Ratification could be another catalyst for the completion of this process of improvement and modernization of Ukrainian legislation.
Isn’t Ukraine obliged to ratify the Rome Statute in accordance with the Association Agreement, particularly relevant in connection with Ukraine's application for EU membership?
Yes, this is an important condition for joining the EU. Article 8 of the Association Agreement between the EU and Ukraine states that we are obliged to ratify and implement the RS in order to promote peace and justice.
For the EU, the ICC is a very important mechanism of the international criminal justice system. All 27 EU member states are parties to the Rome Statute. And all states that have the status of candidates have also ratified the Rome Statute. Except for Turkey, where the accession process is frozen.
Is there a risk that the ratification of the Rome Statute could damage or stop the constant and stable supply of arms to Ukraine?
Ukraine mainly receives weapons from European countries and the US. European states are member states of the Rome Statute. They support this system. And if Ukraine ratifies the Rome Statute, I don’t imagine that this could negatively affect the transfer of weapons.
At the same time, the US has been quite critical of the ICC for a long time, especially during the Trump presidency. This was, in particular, due to the fact that the ICC opened an investigation into the situation in Afghanistan, which was related to the actions of the US military. If Trump was the president and Ukraine ratified the RS, it could potentially affect relations with the US.
With the arrival of the Biden presidency, the US changed its approach to the ICC. They don’t directly support it, because they have restrictions in national legislation. But they don’t hinder its work. It seems to me that the ratification of the Rome Statute by Ukraine will not affect the supply of weapons.
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