The idea of international criminal justice in the context of the recent events in Ukraine has been highly popular in the domestic political discourse. The dramatic events, which started in November 2013, have brought the issue of Ukraine’s cooperation with the International Criminal Court (ICC) to the centre of public attention. At the same time, the ICC and its powers are widely misunderstood and misrepresented.
By Mykola
Gnatovsky
Senior Constitutional Expert, Democracy Reporting
International (DRI)
The idea
of international criminal justice in the context of the recent events in
Ukraine has been highly popular in the domestic political discourse. The
dramatic events, which started in November 2013, have brought the issue of
Ukraine’s cooperation with the International Criminal Court (ICC) to the centre
of public attention. At the same time, the ICC and its powers are widely
misunderstood and misrepresented.
The ICC
does not replace the national courts even when it comes to the most serious
crimes under international law falling under its jurisdiction. The main
responsibility for prosecuting persons responsible for genocide, crimes against
humanity, and war crimes remains with the States.
While the
Constitutional Court of Ukraine back in 2001 found the Statute of the
International Criminal Court incompatible with the country’s Constitution, the
EU-Ukraine Association agreement contains a provision obliging Ukraine
to ensure that it ratifies the Rome Statute and cooperates with the ICC.
The 2001 Opinion of the Constitutional Court requires relevant amendments to
the Constitution before the Rome Statute could actually be ratified. While the
two declarations made by Ukraine, accepting the ICC’s jurisdiction on an ad
hoc basis are positive, a number of serious legal issues can only be
solved if the Rome Statute is ratified by the Verkhovna Rada. The
required amendments have been drafted by the Constitutional Commission of
Ukraine and positively assessed by the Venice Commission. It is however
worrying that the draft recently submitted by the President to the Parliament
proposes a three-year delay for the entry into force of the relevant provision.
In order to
generate public support and to counter misinformation about this reform, its
proponents need to engage in wide public consultations.
What’s the
ICC: expectations vs reality
On 20
January 2000, Ukraine signed the Statute of the International Criminal Court
(hereinafter referred to as the Rome Statute), thereby initiating the process
of acceding to this international legal instrument establishing (for the first
time in history) a permanent organ of international criminal justice for the
most serious crimes under general international law. Today, incorrectly
referred to by many politicians and journalists as «The Hague Tribunal», the
ICC has been presented to the public as a panacea capable of virtually anything from
holding responsible foreign politicians for their actions against Ukraine to
prosecuting corrupt politicians and public servants in the situation of a
complete lack of trust in domestic courts of all levels and specializations.
Many politicians seemed to ignore the fact that its subject-matter
jurisdiction is limited to these four crimes against general international law:
- genocide,
- crimes against humanity,
- war crimes,
- and, potentially, the crime of
aggression.
Politicians
made no mention of other key issues, such as the Court’s temporal and
territorial jurisdiction or admissibility of cases. Furthermore, if in 2001 the
Constitutional Court might have somewhat misunderstood the principle of
complementarity, in the recent political discourse its existence seemed to have
been completely overlooked.
The ICC
does not replace the national courts even when it comes to the most serious
crimes under international law falling under its jurisdiction. The main
responsibility for prosecuting persons responsible for genocide, crimes against
humanity, and war crimes remains with the States. For obvious reasons,
States are much better placed for conducting criminal prosecutions concerning
crimes committed in their territory. The ICC, on the contrary, will always have
to rely on the cooperation of the states concerned.
Furthermore,
the ICC will only act in situations when the States that according to
international law are supposed to exercise their criminal jurisdiction over the
crimes in question (normally this would be the State in the territory of which
such crimes were committed) are either unwilling or unable to exercise such
jurisdiction. In other words, the public expectation that the ICC can step in
and do the work of the relevant national authorities of Ukraine is unrealistic.
The very high cost of international legal proceedings and the slow manner in
which they are conducted leave them in practice limited to the most heinous and
large-scale violations of international law.
Nevertheless,
the accession of a State to the Rome Statute is an important indicator of its
determination to put an end to impunity for the most heinous crimes against
international law and human rights. In this respect, the attitude of the
European Union to the Rome Statute is important to be noted. The EU promotes
the prevention of crimes of international concern and the ending of impunity
for perpetrators of such crimes. It has consistently given strong support –
political, financial and technical – to the effective functioning of the ICC
and other international criminal tribunals. This has been done through the EU
Common Position and an EU Action Plan3
on the ICC. It is also noteworthy that all EU member states have ratified
the Rome Statute. Member States of the European Union are also the main
contributors to the ICC budget.
It is
therefore not surprising that the EU has been promoting the accession to the
Rome Statute by the countries who have entered with it into an Association
Agreement. To this end, the Agreement contains a separate provision, Article 8,
which stipulates that “[t]he Parties shall cooperate in promoting peace and
international justice by ratifying and implementing the Rome Statute of the
International Criminal Court (ICC) of 1998 and its related instruments”.
The Rome
Statute in the Constitutional Court of Ukraine: the 2001 opinion
The
adoption of the Rome Statute marked a major development in international law,
but also raised many questions regarding the compatibility of domestic
constitutional law with the provisions of this treaty. It is therefore not
surprising that a significant number of States have asked their constitutional
courts, supreme courts or councils of state for their opinions on the sensitive
and complicated issues posed by the Rome Statute. In particular, the issue of
compatibility of the national constitution and the Rome Statute was ruled upon
by the respective bodies in more than a dozen countries, including France,Belgium, Spain,
and Ukraine.
The outcome of such proceedings differed from country to country, but there
were a number of recurrent issues highlighted in most decisions, such as
irrelevance of official capacity of perpetrators (Article 27 of the Rome
Statute) versus immunities accorded to certain officials by the constitutions,
obligation of nationals to surrender (Article 89 of the Rome Statute) versus
the constitutional prohibition to extradite own citizens, the ICC prosecutor’s
powers of investigation in the territory of a State Party (Articles 54 and 99
of the Rome Statute) versus the constitutional provisions on exclusivity of the
powers of domestic prosecutors and investigators stemming from the principle of
sovereign equality of the States and so forth.
The
Constitutional Court of Ukraine has ruled on the issue in its Opinion of 11
July 2001. Following the structure of the President’s application, it examined
a number of alleged inconsistencies of the Rome Statute with the 1996
Constitution of Ukraine, including the provisions concerning the principle of
complementarity, the irrelevance of official capacity, the transfer of
Ukrainian citizens to the Court and the enforcement of sentences in third
States. Interestingly, the 2001 Opinion on the Rome Statute remains to date the
sole decision of the Constitutional Court adopted under Article 151(1) of the
Constitution.
The
Constitutional Court concluded that all contested provisions of the Rome
Statute were in conformity with the Constitution, except for paragraph 10 of
the Preamble and Article 1, which states that the jurisdiction of
the ICC “shall be complementary to national criminal jurisdictions”. Article
124 of the Constitution states that “the administration of justice is the
exclusive competence of the courts” and that “judicial functions cannot be
delegated to other bodies or officials”. The Constitutional Court noted that
the jurisdiction of the ICC under the Rome Statute was complementary to
national judicial systems. However, under Article 4(2) of the Rome Statute, the
ICC could “exercise its functions and powers on the territory of any State
Party”, and under Article 17 the ICC could find a case to be admissible if the
State was “unwilling or unable genuinely to carry out the investigation or
prosecution”. The Court concluded that jurisdiction supplementary to the
national system was not contemplated by the Constitution. Under Article 9(2) of
the Constitution the conclusion of international treaties not in conformity
with the constitution can take place only after the constitutional amendment.
Therefore, the Constitutional Court ruled that the constitution must be
amended before the Statute could be ratified.
The Court’s
conclusion that the principle of complementarity runs contrary to the
Constitution was controversial. The travaux preparatoires of the Rome
Statute leave little doubt that the main idea behind the principle of
complementarity was not to infringe upon the State’s sovereignty but, on the
contrary, to ensure that it is the State which has the primary competence and
responsibility to try persons accused of crimes against international law,
provided that the State is in a position to do it (i.e. ‘able’ in the language
of the Rome Statute) and is doing it bona fide (i.e. ‘willing’, as it is put in
the Rome Statute) [1]. However, Ukraine’s Constitutional
Court was not the only one reaching this conclusion. A similar logic was
followed by the constitutional courts of Armenia, Chile, and Cote d’Ivoire
while an opposite approach was taken by the respective constitutional bodies of
France, Guatemala, Albania, and Moldova.
The
post-Maidan developments
In the
aftermath of the events on Maidan in November 2013 – February 2014 the
Verkhovna Rada adopted a declaration recognizing the jurisdiction of the ICC
pursuant to Article 12(3) of the Rome Statute, which envisages that
a State which is not a Party to the Statute may, by declaration lodged with the
ICC Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question. In April 2014 this declaration reached the ICC, whose
Prosecutor opened a preliminary
examination of the facts stated in the declaration, in particular
concerning a possible commission of crimes against humanity.
In the
meantime, high officials of Ukraine confirmed the pledges made on the stage at
Maidan, saying that
it would not take long to ratify the Rome Statute. Instead of proposing
amendments to the Constitution the Minister of Justice mentioned on 14 April
2014 that the Government was
going to request the Constitutional Court to provide another opinion
on the Rome Statute. However, these plans did not materialize. Then the deputy
spokesman of Ukraine’s Council of National Security and Defence, who at the
beginning of February 2015 expressed
the view that the ratification of the Rome Statute is not “the correct
approach to the Russian aggression” and that “due to the annexation of Crimea
and Russia’s aggression in the Donbas region would only make sense if Russia
does the same simultaneously.
In contrast
to this negative approach, the Verkhovna Rada adopted the second
declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction
of the ICC for crimes committed on Ukraine’s territory since 20 February 2014. As
the initial text of the declaration as adopted by the Parliament could be
understood as the desire to extend the ICC’s jurisdiction only to anti-Ukrainian
forces, the final text of the declaration as submitted to the ICC by Ukraine’s
Minister for Foreign Affairs on 8 September 2015, makes
a clear reference to all crimes and all persons who have committed
them regardless of their affiliation or nationality. According to the press-release of the ICC,
“following the second declaration, and bearing its legal effect in mind as well
as the interconnected nature of the events in Ukraine, the Prosecutor has,
accordingly, determined to extend the temporal scope of the existing
preliminary examination to include any alleged crimes committed on the
territory of Ukraine from 20 February 2014 onwards”.
An awkward
situation that can be resolved through ratification of the Rome Statute
The second
declaration made under Article 12(3) of the Rome Statute has created an awkward
situation for a number of reasons:
- De facto Ukraine became an ‘associate party’ to the Rome Statute, as the ICC has obtained jurisdiction over the major crimes against international law committed in its territory, while Ukraine has not gained any formal status with the Court and cannot enjoy the rights, both organizational and procedural, afforded by the Rome Statute to the States that ratified it.
- Being now fully bound by the provisions of the Rome Statute obliging the State Parties to cooperate with the Court may include surrender of persons to this international institution, but without ratification Ukraine has no domestic legal basis for such a surrender.
- If a Ukrainian court looks into the issue of surrender of a person to the ICC, a defence counsel of such a person could question whether it was permissible for Ukraine to accept the jurisdiction of the ICC, once its Statute had been declared incompatible with the Ukrainian Constitution.
- The Criminal Code of Ukraine is
not aligned to the Rome Statute (e.g. crimes against humanity are
currently absent from the Criminal Code, and types of war crimes should be
significantly specified).
Therefore, the
only way forward for Ukraine appears to be amending its Constitution to open
the path to the ratification of the Rome Statute, to benefit fully from the
acceptance of the ICC’s jurisdiction, and to fulfill its obligations under
Article 8 of the EU-Ukraine Association agreement. This is the way that has
been chosen by a number of countries which encountered similar constitutional
issues, such as France, Ireland, Portugal, Luxembourg and others. It is
positive that the issue of bringing the Constitution into accord with the Rome
Statute was addressed by the Constitutional Commission of Ukraine. As a result,
a provision explicitly allowing for the ratification of the Rome Statute has
been included into the draft amendments to Chapter VIII of the Constitution dealing
with the administration of justice, tabled by the President on 25 November
2015. The provision is to be included as paragraph six of Article 124, reading
as follows:
“Ukraine
can recognise the jurisdiction on the International Criminal Court under the
conditions that are stipulated in the Rome Statute of the International
Criminal Court.”
Such a
provision, modeled after the French and/or the Irish constitutional amendments [2], has been strongly welcomed by the Venice
Commission in its October
2015 Opinion.
However,
the transitional provisions of the draft law on amendments to the Constitution
at the same time stipulate that the above-mentioned clause allowing for the
ratification of the Rome Statute shall only enter into force three years after
the adoption of those amendments. If accepted by the Parliament, this draft
provision, which was neither discussed by the Constitutional Commission nor
reviewed by the Venice Commission, would mark a clear Ukraine’s departure from
own commitments of both political and legal nature (in particular, envisaged by
the EU-Ukraine Association Agreement). The draft’s authors offer no explanation
to the proposed delay in the explanatory report. Indeed, it is a hard task
since Ukraine has already recognized the ICC’s jurisdiction and has committed
to the full cooperation with the Court. While not affecting any international
obligations already assumed by Ukraine, this provision would simply delay the
possibility of Ukraine acquiring full rights vis-à-vis the ICC as a State Party
to its Statute.
In the
light of the above it is all the more important that the promoters of this
change engage in wide public consultation and information, to generate
sufficient public support for this reform and to avoid disinformation aimed at
derailing such a change.
About the Author:
Mykola Gnatovsky, Associate
Professor of the Kyiv Institute of International Relations (KIMO)
Twitter ID: @Gnatovsky
Read more on the ICC and criminal justice in Ukrainian conflict in the full version of DRI report here
Publication Details:
This article was originally published at VoxUkraine
under Creative Commons 3.0 License
