During a live call-in question and answer session on Russian state television on April 17, Russian President Vladimir Putin told viewers that disgraced former Ukrainian President Viktor Yanukovych told him that he“did not dare to sign a decree on the use of force against [his] citizens.”
Putin said Yanukovych “fulfilled his duty in the way he considered possible and appropriate” during the bloody crackdowns on protesters
on Kyiv’s Independence Square in January and February that left more than 100
activists, journalists, and police officers dead.
Many in the post-revolutionary Ukrainian
government, however, disagree with Putin and Yanukovych.
On the same day as Putin’s live Q&A,
the Ukrainian government issued a declaration accepting the International
Criminal Court’s jurisdiction in prosecuting individuals responsible for crimes
committed during the EuroMaidan Revolution.
The Ukrainian government’s declaration asked the ICC for ratione temporis jurisdiction, meaning that the court will have jurisdiction in Ukraine for a specific period of time, in this case, from November 21 to February 22.
On April 25, Fatou Bensouda, the prosecutor of the ICC,
announced that she had opened a preliminary examination of Ukraine’s appeal.
They are the first steps in what may be
a lengthy investigation and trial, a process that could last anywhere from a
few months to more than a year.
Ukraine must first amend its
constitution to allow the international court to prosecute those complicit in the
violence against EuroMaidan protesters, activists, and journalists: according
to Chapter 8, Article 124 of the Ukrainian constitution, the Constitutional
Court of Ukraine is the highest judicial body in the country. Accordingly, the
Constitutional Court ruled in 2001 that the Rome Statute of 1998, which
establishes the ICC’s functions, structure, and jurisdiction, could not be
applied in Ukraine.
Although the government named
Yanukovych, former General Prosecutor Viktor Pshonka, and former Interior
Minister Vitaliy Zakharchenko in its appeal to the ICC, the Court will not open
an investigation of specific individuals.
The ICC is working closely with the
Public Commission on the Investigation and Prevention of Human Rights
Violations in Ukraine, as well as Ukraine’s General Prosecutor’s office.
Myroslava Antonovich, a professor and international law expert at the National University of Kyiv-Mohyla Academy, who works on the Public Commission, says there is a indisputable evidence that Yanukovych and other former officials ordered police to fire on protesters on Kyiv’s Independence Square, and to abduct and torture activists and journalists.
“I have no doubt that they will be found
guilty,” says Antonovich.
In February, the Public Commission began documenting the crimes committed by Yanukovych’s regime during the EuroMaidan Revolution. It has already archived more than 2,300 questionnaires of victims of the state violence.
The Public Commission believes these questionnaires, as well as leaked documents and video captured during the EuroMaidan Revolution, provide irrefutable evidence that Yanukovych’s administration committed multiple crimes against humanity.
“Thus far, we have only identified elements of crimes against humanity,” says Antonovich, though members of the commission believe Russia’s invasion and subsequent occupation of Crimea might be considered a “crime of aggression,” which is also punishable by the ICC.
According to the Rome Statute, “the invasion or attack by the armed forces of a
State of the territory of another State, or any military occupation, however
temporary, resulting from such invasion or attack, or any annexation by the use
of force of the territory of another State or part thereof” is a crime of
aggression.
Despite the perponderance of evidence, bringing Yanukovych to trial will
be difficult. If charged, Yanukovych would be only the second head of state to
be indicted by the ICC.
In 2009, Omar al-Bashir, the President
of Sudan, was indicted on four counts of crimes against humanity and two counts
of war crimes and the following year, he was indicted on three counts of
genocide. Although the ICC has issued a warrant for al-Bashir’s arrest, he has
traveled outside Sudan several times since being indicted and has not been
arrested.
Yanukovych and his associates will
likely be able to continue to take shelter in Russia. Antonovich says that “while
Putin is president,” they will “never” be extradited.
Yet the ICC may be Ukraine’s only
option. The only other international recourse would be to call for an ad hoc
tribunal made up of judges from around the world to be established, like those
formed following the Bosnian and Rwandan genocides.
However, the United Nations Security
Council would have to pass a resolution forming such a tribunal. Because Russia
has veto power as a permanent member of the Security Council, the formation of
an ad hoc tribunal to investigate Yanukovych and his administration is highly unlikely.
Kyiv Post staff writer Isaac Webb can be
reached at [email protected] and on Twitter at @IsaacDWebb.
