Officials in Kyiv have vowed to continue pursuing cases against Russia in the International Criminal Court despite Moscow’s decision to end its cooperation with the Hague-based tribunal.
Few in the Ukrainian capital were surprised by Russian President Vladimir Putin’s decision on Nov. 16 to withdraw his country’s signature from the Rome Statute – the founding document that created the court – a day after its chief prosecutor Fatou Bensouda branded Russia the main aggressor and an occupier in the Kremlin’s ongoing war against its southern neighbor.
Observers viewed Putin’s decision as a knee-jerk reaction to mounting criticism of his actions in Ukraine, as well as a growing fear in Moscow that Russia’s bloody military intervention in Syria may open the door to the Kremlin being accused of war crimes.
“This is a purely symbolic gesture (by Moscow)… and it says a lot about Russia’s attitude towards international justice and institutions,” Tanya Lokshina, the Russia director of the non-governmental organization Human Rights Watch, said in a report published in the London-based Guardian newspaper on Nov. 16.
“On a practical level, it will not make much difference, but it is a statement of Russia’s direction. It shows that Russia no longer has any intention of ratifying the treaty in the future or of cooperating with the court,” Lokshina told the Guardian.
Ukraine filed its current ICC cases against Russia knowing that Moscow had signed but never ratified the Rome Statute.
Putin quickly lost his appetite for the agreement during the 1999-2001 Second Chechen War, when Russia’s genocidal campaign to crush Chechnya’s fledgling independence movement opened the door to accusations that Moscow’s armed forces had committed war crimes.
“At the time when Russia signed the Rome Statute in 2000, it wanted to be a part of the modern world,” Vladimir Frolov, a scholar of international relations, told the New York Times. “Now, it doesn’t.”
Ukraine’s cases
Ukraine, like Russia, has not ratified the Rome Statute. As a signatory, the Ukrainian government has fully accepted the ICC’s mandate, as well as its jurisdiction, to investigate alleged crimes against humanity.
Ukraine originally filed a motion with the ICC to investigate human rights abuses committed by the government of ousted pro-Russian President Viktor Yanukovych during the November 2013 to February 2014 Euromaidan Revolution.
As the level of fighting in the Donbas intensified over in the autumn and winter of 2014-15, the Ukrainian government filed a second motion in September 2015 requesting that the ICC continue with its investigations into alleged cases of crimes against humanity in the Donbas and Crimea for an open-ended period of time.
The Ukrainian government’s decision to indefinitely extend the ICC’s mandate in the country was based on accounts from civic activists, NGOs and journalists who witnessed forced disappearances, illegal arrests and the execution of Ukrainian POWs since major combat operations began nearly three years ago.
Western reporters working in the Donbas during the early stages of the conflict reported multiple cases of random nighttime arrests of pro-Ukrainian civilians by forces commanded by Moscow’s main military agent in eastern Ukraine at the time, former FSB colonel Igor Girkin.
In a March 2015 phone conversation with Kyiv Post journalist Oleg Sukhov, the late Russian-born separatist warlord Arseny Pavlov admitted that he committed a gross violation of international law by personally executing more than a dozen Ukrainian prisoners of war.
Pavlov was killed – apparently assassinated – by a bomb in the elevator of his home in Donetsk on Oct. 16, 2016.
Moral victory
Even with ICC prosecutor Bensouda’s assessment that, “the Russian Federation has deployed members of its armed forces with the purpose of gaining control over parts of Ukraine without the consent of the government of Ukraine,” questions still remain as to what Kyiv can actually expect from the court now that Russia has refused to recognize its authority.
Moscow, which has repeatedly tried to portray itself as an impartial bystander in what the Kremlin describes as a civil war, quickly denounced the tribunal to the international media for “failing to live up to the hopes of the global community” and called the ICC’s investigative work “one-sided and inefficient.”
Russia is hoping that international support for Ukraine will wane as the European Union continues to grapple with the fallout of the United Kingdom’s Brexit vote and a more Kremlin-friendly U.S. presidential administration led by Donald Trump takes office.
Trump’s closest advisors, including the incoming National Security Advisor General Michael Flynn, have towed the Kremlin’s line since protestors first appeared in Kyiv’s Maidan Square.
Putin has likely concluded that Ukraine’s outstanding human rights cases would never survive the ICC’s notoriously bureaucratic fact-checking process without robust support from either Washington or Brussels.
Further complicating matters is the fact the United States withdrew its own signature from the Rome Statute in 2002. The outgoing administration of President Barack Obama has cooperated with the court on a limited basis, but that informal support could come to an end once Trump and his team, who are known for their disdain of international treaties, occupies the White House in January.
Moscow is also keenly aware that the ICC has never tried, let alone convicted, any high-ranking officials from a major nuclear-armed power like Russia, and is unlikely ever to do so without strong support from the U.S. government.
“Given that the ICC is a relatively young institution, and the norms surrounding it are not firmly entrenched, the loss of American leadership on accountability for mass atrocities could be profoundly damaging,” said Kate Cronin-Furman, a human rights lawyer and political scientist at the Harvard Kennedy School, in an interview with the New York Times shortly after Moscow’s decision to withdraw from the agreement.
Seeking justice
The court is currently mired in a series of cases involving several African nations and only recently initiated a preliminary investigation into war crimes committed by Russia during Moscow’s invasion of Georgia in August 2008.
None of the ICC’s shortcomings has stopped Kyiv from pursuing its goal of bringing the perpetrators of the war in the Donbas and the occupation of Crimea to justice.
“The MH17 catastrophe is being treated as a military crime and as a crime against humanity,” Ukrainian Prosecutor General Yury Lutsenko announced to the media during a visit to the Hague on Nov. 22.
“Ukraine will insist that the ICC’s criminal court continue to look into the case.”
Mykola Gnatovsky, an associate professor of international law at Kyiv’s Taras Shevchenko National University, told the Kyiv Post that the court is still the best place in which Ukraine can seek justice.
“Even with all its deficiencies and lack of support from a number of major powers, the ICC remains the sole permanent body of international criminal justice that is capable of delivering guilty verdicts where it is required,” Gnatovsky said.
“The Court is more relevant now than ever, now that its focus has become truly global and not just concentrated on Africa, as it has been,” he said. “Horrible crimes have been and are being committed in many parts of the world, including in Ukraine, and the demand for true international criminal justice is growing,” Gnatovsky added.
Ukraine will look likely move ahead by citing the 1969 Vienna Convention on the Law of Treaties – of which Russia is a signatory – that requires a state refrain from any act that would defeat the purpose of an existing treaty.
The Rome Statute is meant as a bulwark against the impunity of a government or individual when committing the most serious crimes against international law.
Ukraine will argue that the founding principles of the two aforementioned treaties are enough to convict the culprits of the dozens of war crimes committed on its soil since the start of the conflict.
