“In 2021, 55 servicemen were killed in eastern Ukraine.”
“The occupiers mortared Schchastia village and wounded the mayor.”
“Russian hybrid troops fired on Avdiivka and damaged buildings.”
These are just a few headlines in Ukrainian media in the eighth year of the war.
Justice must be more powerful than enemy armies and illegal armed groups. That is why this week I met in The Hague with the newly appointed Prosecutor of the International Criminal Court Karim A.A. Khan.
At the entrance to the International Criminal Court, next to the ICC flag, our delegation was greeted by a blue and yellow Ukrainian flag. In my opinion, this symbolism is not a protocol formality, but evidence of the willingness of the ICC Office of the Prosecutor to cooperate closely.
I can’t disclose the details of the dialogue with Karim A.A. Khan, as confidentiality was a condition of negotiations, but I can fully share the impression of the meeting. The conversation was very truthful, specific, and professional. (It is important that we made sure that the ICC Prosecutor is a person who will go to court only when he has enough strength to win it.)
He took the oath of the ICC Prosecutor as recently as June 2021. Karim A.A. Khan is the Queen’s Counsel, a former prosecutor with 25 years of professional experience in international criminal law and human rights, including in international criminal tribunals.
We discussed cooperation between our institutions on the way to justice, which is expected by millions of our compatriots who had suffered from the war and Russian aggression, hundreds of thousands of Ukrainians who had lost their homes and property, tens of thousands of relatives of killed Ukrainian soldiers, thousands of people tortured and ill-treated in the occupied territories.
It is the duty of the Ukrainian state and each of us to live up to their expectations. We do our best to hold war criminals accountable and no one to go unpunished.
We have been actively cooperating with the ICC since 2015 in order to get the top officials and military officials of the aggressor country into the hands of international justice. During this time, the Ukrainian prosecution service sent 24 information reports to the Office of the Prosecutor of the International Criminal Court about the commission of war crimes and crimes against humanity by representatives of the Russian Federation in Crimea and eastern Ukraine. We sent 12 of them in 2020-2021. Among them there are materials about the treacherous murder of our soldiers in Ilovaisk, humiliating “parades of prisoners of war,” destruction of cultural values in Crimea and civilian infrastructure in Donbas, persecution of journalists on the occupied peninsula.
At the end of 2020, the former Prosecutor of the ICC Fatou Bensouda announced the conclusion of the preliminary examination in the situation in Ukraine. The next step that our state expects is the address of the Prosecutor of the ICC to the ICC Pre-Trial Chamber with a request for authorization of a full investigation into the events in the temporarily occupied Crimea and Donbas.
This additional stage of approval before the start of the investigation is necessary owing to the fact that Ukraine has not as yet ratified the Rome Statute of the International Criminal Court. This is despite the fact that our state was one of the first countries to sign it in 2000, and in 2014-2015 we recognized the jurisdiction of the ICC over crimes committed on the Maidan and in the temporarily occupied Donbas and Crimea.
At the time of signing the Rome Statute, Ukraine declared its intention to join it, however then failed to ratify it owing to the decision of the Constitutional Court of Ukraine, according to which certain provisions of the Statute of the ICC were found to be inconsistent with the Constitution of Ukraine.
Given this, at the beginning of the armed conflict, the ratification of the Rome Statute of the ICC required three stages: amendments to the Basic Law, direct ratification of the Rome Statute and amendments, notably, to the criminal and criminal procedure law of Ukraine.
The Verkhovna Rada adopted the Law of Ukraine that amended Article 124 of the Constitution of Ukraine, which provided for the recognition of the jurisdiction of the International Criminal Court, in 2016. These norms came into force three years later, on June 30, 2019.
The Prosecutor General’s Office is actively involved in the work of the Ministry of Justice of Ukraine on a package of draft laws on the ratification of the Rome Statute of the ICC and amendments to the Criminal Procedure Code of Ukraine with a view to such ratification.
The need for ratification is a matter of full-fledged participation of the state in the work of the court as well as a clear expression of belonging to the world community, which fights impunity for international crimes, i.e. gross violations of international humanitarian law and gross human rights violations. The Rome Statute is a crucial condition for the work of the International Criminal Court. When we go to the ICC for justice, we just have to provide it with the opportunity to work on the prosecution for war crimes and crimes against humanity.
Hence, the ratification of the Rome Statute and the settlement of issues of cooperation with the International Criminal Court in the legislation of Ukraine will provide a real opportunity and legal basis for the ICC to fulfill its tasks with regard to the situation in Ukraine.
The Prosecutor General’s Office has consistently advocated the need for Ukraine to ratify the Rome Statute of the International Criminal Court in order to become a full-fledged ICC member state. Yet again, I stated this at a meeting of the National Security and Defence Council on October 15, and with this belief I returned from The Hague.
At present, Ukraine has only obligations and does not have any rights and advantages as a full-fledged State party to the Rome Statute. Ratification opens additional opportunities for our country:
- the right to vote at meetings of the Assembly of States Parties to the Rome Statute and participate in discussions of the Court’s activities;
- the opportunity to vote for important amendments to the Rome Statute in order to prevent and combat international crimes;
- nomination of its candidates for the positions of a judge, Prosecutor and other elected positions in the ICC;
- nomination of its candidates for the positions of judges in the ICC;
- participation in the selection of the Prosecutor and judges of the ICC.
Once again, I would like to debunk the “horror stories” that the International Criminal Court is a threat to Ukrainian servicemen because it will prosecute them as well. The International Criminal Court is a complementary court to national courts. It does not intervene if a state independently conducts an effective investigation, and this is confirmed by the experience of other countries. The International Criminal Court undertakes only the most egregious – mass and most serious, violations of the laws and customs of war, which are provided for, in particular, by the Geneva Conventions.
Since 2014, more than 600 cases of crimes committed by servicemen against civilians in the zone of armed conflict have been investigated in Ukraine. Almost 400 indictments have already been forwarded to court, and courts have pronounced the conviction in more than 200 cases. Some of these cases have been considered by the Office of the Prosecutor of the International Criminal Court and have been declared preliminarily inadmissible, as Ukraine itself has been able to ensure and is ensuring criminal prosecution in them. These are well-known cases concerning soldiers of a number of battalions. In particular, in the “Tornado” case, 12 persons were sentenced for violent crimes against civilians in 2014-2015, including sexual violence.
The International Criminal Court operates on the principle of complementarity, that is, it may only be involved when national law enforcement bodies and the justice system of a country are unable or unwilling to identify and prosecute individuals for committed actions.
Ukraine makes every effort, where it has a possibility, to establish justice, but in order to seek justice for international crimes committed by the top political and military leadership of the Russian Federation and the leaders of the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic,” we need the International Criminal Court. Those who are hiding from Ukrainian justice will not go unpunished. The International Criminal Court is also called the court of last resort, and we need a winning result in it.
In recent years, we have gathered a lot of evidence, which is enough to ensure that none of the war criminals go unpunished. Therefore, my mission and the mission of the employees of the Ukrainian prosecution service is to do everything possible to make everyone involved responsible for the committed actions. This is extremely important not only for the restoration of justice but also for peace in Ukraine and in Europe.
Our state also fights for justice in the International Court of Justice and the European Court of Human Rights. The Prosecutor General’s Office continues to support our colleagues from the Ministry of Foreign Affairs and the Ministry of Justice in this regard in interstate cases of Ukraine against the Russian Federation.
