Ukraine and the International Criminal Court: implications of the ad hoc jurisdiction acceptance and beyond.

• Author: Marchuk, Iryna

ABSTRACT

The Article examines an array of important legal issues that arise out of the acceptance of the jurisdiction of the International Criminal Court by Ukraine, a non-State Party to the Rome Statute, within the framework of Article 12(3) with respect to the alleged crimes against humanity committed during the 2014 Maydan protests (Declaration I) and the alleged war crimes committed in eastern Ukraine and Crimea (Declaration II). It provides an in-depth analysis of constitutional law issues linked to the acceptance of the jurisdiction by Ukraine and discusses its possible implications on the proceedings before the ICC. The Article criticizes the ICC Prosecutor's overly stringent approach with regard to the interpretation of crimes against humanity in the context of the Maydan protests and her decision not to proceed with the first declaration. The Article further argues that ignoring the situation in Ukraine is detrimental to the interests of justice.

Table of Contents I. INTRODUCTION II. ROME STATUTE CONTRARY TO THE CONSTITUTION OF UKRAINE? III. TOWARDS RATIFICATION OF THE ROME STATUTE THROUGH AMENDING THE CONSTITUTION OF UKRAINE IV. DECLARATION ACCEPTING THE JURISDICTION OF THE ICC FOR ALLEGED CRIMES AGAINST HUMANITY DURING THE MAYDAN PROTESTS (DECLARATION I) A. Problems Linked to Ukraine's Declaration I 1. Is the Declaration Duly Signed? 2. Naming of Suspects 3. Temporal Jurisdiction B. The ICC Prosecutor's Decision Not to Act on Declaration I as a Missed Opportunity 1. Have the Crimes within the Jurisdiction of the ICC Been Committed? 2. Jurisdiction and Admissibility under Article 17 of the Statute? 3. Gravity and Interests of Justice V. DECLARATION ACCEPTING THE JURISDICTION OF THE ICC FOR THE ALLEGED CRIMES IN EASTERN UKRAINE AND CRIMEA (DECLARATION II) A. International or Non-International Armed Conflict in Eastern Ukraine? B. War Crimes in Eastern Ukraine C. Annexation of Crimea and Its Significance for Declaration II D. Missed Opportunities in Declaration II VI. CONCLUDING WORDS I. INTRODUCTION

This Article is a timely contribution to the debate on the relationship between the International Criminal Court (ICC) and Ukraine, a non-State Party to the Rome Statute. The debate has gained considerable momentum in light of Ukraine's acceptance of the ad hoc jurisdiction of the ICC under Article 12(3) of the Rome Statute for the alleged crimes against humanity committed during the 2014 Maydan protests and subsequent acceptance of jurisdiction for the alleged crimes associated with the escalation of the conflict in eastern Ukraine and the annexation of Crimea by the Russian Federation. The Article situates the debate on the ad hoc jurisdiction acceptance in the broader context by addressing the clash between Ukrainian constitutional law and international law. This tension is exemplified by the failed ratification attempts of the Rome Statute (1) following the ruling of the Constitutional Court of Ukraine that found the Rome Statute contrary to the Constitution of Ukraine. (2) It raises a number of important legal questions on the interplay between constitutional law and international law, in particular whether the acceptance of the jurisdiction of the ICC by the Ukrainian government was in conformity with constitutional procedure and whether such acceptance overrules the earlier decision of the Constitutional Court of Ukraine, which required the amendment of the Constitution of Ukraine in order to accommodate the jurisdiction of the ICC.

The Article also discusses a number of legal challenges associated with the first declaration lodged by the Ukrainian interim government and critically reflects on the recent decision of the ICC Prosecutor not to seek the Pre-Trial Chamber's authorization to proceed with the investigation. The Article argues that by taking an overly narrow approach to the interpretation of the contextual elements of crimes against humanity, the Prosecutor made an unfortunate decision that stripped the judges of the opportunity to decide whether the crimes, which were committed during the demonstrations in Ukraine, meet the threshold of crimes against humanity. The Article argues that the Prosecutor of the ICC has missed a golden opportunity by deciding not to act on the first declaration, as this could have been a landmark case capable of enhancing the fragile legitimacy of the ICC that is largely plagued by African bias claims with respect to its choice of situations.

The Article also addresses a number of legal intricacies linked to the second declaration that, in an unexpected twist, was recently lodged by the Ukrainian government and extended the jurisdiction of the ICC for an indefinite period of time with respect to the crimes associated with the conflict in eastern Ukraine and the annexation of Crimea. Although the prospects of the ICC Prosecutor acting on the second declaration are bleak at the moment, the Article argues that missing this opportunity to act would be detrimental to the interests of justice and damaging to the public image of the Court, which would be perceived by the victims and international community as incapable of dealing with ongoing conflicts.

2. ROME STATUTE CONTRARY TO THE CONSTITUTION OF UKRAINE?

   Ukraine is a signatory to the Rome Statute, although it has yet to ratify the Statute. (3) The ratification procedure was stalled by the ruling of the Constitutional Court of Ukraine, which declared the Rome Statute's principle of complementarity to be contrary to the Constitution of Ukraine. (4) Despite the fact that fifteen years have elapsed since the Constitutional Court's ruling on its nonconformity with the Ukrainian constitution, Ukraine has made miniscule progress in ratifying the Rome Statute. However, hopes remain high in light of the latest legislative initiative taken by members of Verkhovna Rada of Ukraine (Ukrainian parliament) in January 2015 to amend the Constitution of Ukraine. (5) Back in 2001, the proceedings before the Constitutional Court of Ukraine, which is tasked with deciding on conformity of international treaties with the Constitution of Ukraine, (6) were initiated by the then President of Ukraine, Leonid Kuchma, who lodged an application on nonconformity of the Rome Statute with a number of constitutional provisions. (7) Interestingly, the President's submission was at odds with the official position of Ukraine's Ministry of Foreign Affairs, which took an opposing stance and publicly declared that it had not identified any impediments to ratification of the Rome Statute. (8) The President's submission to the Court focused on a number of key constitutional provisions that he argued were contrary to the Rome Statute's provisions on immunities (Art. 27), the principle of complementarity (Art. 1, 17, and 20), surrender of nationals (Art. 89), and enforcement of prison sentences (Art. 103 and 124). (9) In addition, he contended that the Rome Statute was contrary to the constitutional provisions:

   1. on the role of Ukraine's prosecution office,

   2. on the exercise of power by Ukrainian people directly or through elected agents, and

   3. on the legislative competence vested in the Ukrainian Parliament. (10)

      One of the central issues in the President's submission was the incompatibility of a constitutional provision on immunities with the Rome Statute's provision on irrelevance of official immunities. (11) The Constitution of Ukraine grants immunities to certain categories of officials, namely the President of Ukraine, members of parliament, and judges during their time in office. (12) However, in exceptional circumstances, such as serious criminal allegations, immunities may be waived through a parliamentary procedure of impeachment. (13) The judges of the Constitutional Court held that Ukraine respected its obligations under international law that it was not afforded immunities for international crimes. (14) Although not referring to any developed jurisprudence on the subject, the Court took a progressive stance on the matter of immunities for international crimes. (15) The ruling affirmed that the constitutional provision on immunities was applicable only in the national context and, therefore, could not bar the ICC from exercising its jurisdiction. (16) A less progressive take on immunities was advanced by a French counterpart, the Conseil constitutionnel, in its judgment on January 22, 1999, which came to a different conclusion by claiming that the president of France effectively enjoyed immunities during his or her term in office, except for the crime of high treason. (17) This divergence of opinions advanced by constitutional courts in two different countries shows that the clash between constitutional law and international law cannot always be easily resolved. By undertaking a very narrow interpretation of constitutional provisions on immunities in a national context, states may act in breach of their already existing international obligations enumerated in the international treaties that they have ratified (e.g., UN Genocide Convention), which explicitly prohibit immunities for international crimes. (18) It has been noted in the academic literature that "a strict interpretation of constitutional provisions ... could bring a state into conflict with international obligations which it has already undertaken beyond the context of the ICC." (19)

      The President's submission questioned the conformity of the constitutional ban on extradition of Ukrainian nationals to another state with the Rome Statute's provision on surrender of suspects into the custody of the ICC. (20) The court distinguished between "extradition" of nationals to another state and "surrender" of nationals to an international court. (21) Whereas extradition of a state's own national to another state is generally resisted due to the fear of the state's concern with losing its grip on the handling of its own domestic affairs, the surrender of a national to an...