Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC

On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.

It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:

dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.

As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Yet, although the Ministry’s statement did not mention this, the true reason for Russia’s decisive move must have been the publication, on 14 November 2016, of the ICC Prosecutor’s annual Report on Preliminary Examination Activities. The Prosecutor suggested, in particular, in paragraph 158 of the Report:

[T]hat the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required. For purposes of the Rome Statute an armed conflict may be international in nature if one or more States partially or totally occupies the territory of another State, whether or not the occupation meets with armed resistance.

The Prosecutor also suggested in paragraphs 168 – 170 of the Report that:

Based on the information available it seems that by 30 April 2014 the level of intensity of hostilities between Ukrainian government forces and antigovernment armed elements in eastern Ukraine reached a level that would trigger the application of the law of armed conflict […]

Additional information, such as the reported shelling by both States of military positions of the other, and the detention of Russian military personnel by Ukraine, and vice-versa, points to direct military engagement between Russian armed forces and Ukrainian government forces that would suggest the existence of an international armed conflict in the context of armed hostilities in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict.

For the purpose of determining whether the otherwise non-international armed conflict could be actually international in character, the Office is also examining allegations that the Russian Federation has exercised overall control over armed groups in eastern Ukraine. The existence of a single international armed conflict in eastern Ukraine would entail the application of articles of the Rome Statute relevant to armed conflict of an international character for the relevant period. In conducting its analysis, the Office must assess whether the information available indicates that Russian authorities have provided support to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates they exercised genuine control over them. The Office is currently undertaking a detailed factual and legal analysis of the information available of relevance to this issue.

In turn, paragraphs 171 – 183 listed alleged crimes – essentially, crimes against humanity and war crimes – some of which could have been committed, or at least contributed to, by nationals of the Russian Federation (in particular, in Crimea but also, probably, in Eastern Ukraine). By virtue of Article 12(2)(a) of the Rome Statute, the ICC would have jurisdiction with respect to such crimes, since Ukraine granted the ICC jurisdiction with respect to crimes committed on its territory since 21 November 2013.

Hence, it is very likely that the purpose of bylaw № 361-rp is to shield Russian nationals from potential prosecutions at the ICC in the future and that this attempt is based on the assumption that the withdrawal of Russia’s signature under the Rome Statute should prevent the ICC Prosecutor from indicting Russian nationals for alleged crimes committed in Crimea and Eastern Ukraine. It appears that the official Russian position echoes that of the United States in 2002, when the US withdrew its own signature from the ICC Statute. In the words of a senior US diplomat, the legal consequences of that move were as follows:

It frees us from some of the obligations that are incurred by signature. When you sign you have an obligation not to take actions that would defeat the object or purpose of the treaty […]

Indeed, this statement by Mr Pierre-Richard Prosper is crucial, because it points to an important legal obligation that both the United States and the Russian Federation were under, before they withdrew their respective signatures from the ICC Statute. It is true that after a State withdraws its signature, it is henceforth free from any obligation under the treaty. However, it is submitted, it would be incorrect to suppose (as some commentators do) that the withdrawal of Russia’s signature should also retrospectively cancel the State’s interim obligation not to defeat the object and purpose of the Rome Statute, which existed from the time the Statute was signed on its behalf on 13 September 2000 until the issuance of bylaw № 361-rp on 16 November 2016. This obligation is autonomous, and its existence is not affected by the bylaw.

As Olivier Dörr points out, “the interim obligation set out [in] Art 18 is […] an autonomous obligation under general international law” (O. Dörr, K. Schmalenbach (eds.) Vienna Convention of the Law of Treaties: a Commentary, at p. 220), and hence it is not a moral or political but a legal obligation. A State becomes bound by this interim obligation, in the sense of Article 13 of the Draft Articles on Responsibility of States, at the moment it signs a treaty, and the obligation only ceases –with a prospective, not retrospective effect – at the moment the State withdraws its signature in accordance with Article 18(a) of the Vienna Convention on the Law of Treaties. Dörr explains this as follows (ibid., p. 227):

The interim obligation under lit a ends as soon as the State makes its intention clear not to become party to the treaty. Thus, the State itself is able, by aborting the process of concluding the treaty, to create a situation where the interim obligation can no longer be violated because it is no longer binding for that State.

Since States’ interim obligation under Article 18(a) of the Vienna Convention not to defeat the object and purpose of treaties they sign is legal in nature, it must of necessity be implied that States bear responsibility – in the sense of applicable international law – for breaches of the interim obligation. For the purpose of the case study under review, it is submitted that, during the period between 13 September 2000 and 16 November 2016, Russia was legally obliged not to carry out any acts conducive to the commission of “the most serious crimes of international concern, as referred to in [the Rome] Statute” (cf. Article 1 of the Statute). Notably, the Rome Statute does not contain any specific provisions setting out its object and purpose yet, any reasonable interpretation of the Statute should suggest that its object and purpose include not creating conditions for, and not otherwise facilitating or encouraging, the commission of such crimes. However, it may be concluded from the ICC Prosecutor’s report of 16 November 2016 that Russia potentially violated its obligation under Article 18 of the Vienna Convention on the Law of Treaties, in that it occupied Crimea and Sevastopol, at the latest on 26 February 2014, and started an international armed conflict against Ukraine, at the latest on 14 July 2014. Since none of the alleged crimes listed in paragraphs 171 – 183 of the ICC Prosecutor’s report could have been committed, were it not for Russia’s active role in making possible the contextual circumstances for their perpetration, the invocation of its responsibility appears very apposite.

Since the obligation under Article 18(a) of the Vienna Convention is one under general international law, responsibility for its breach should also arise under, and be governed by, general international law – that is, the law of States’ responsibility for internationally wrongful acts. Since the interim obligation not to defeat the object and purpose of the Rome Statute was in force for Russia, in the sense of Article 13 of the Draft Articles, during the period between 13 September 2000 and 16 November 2016, Russia’s responsibility for breaches of this obligation, which occurred during the same period, may be invoked in accordance with the Draft Articles. Dörr notes that the interim obligation “can only be invoked by States that have themselves signed or ratified the treaty in question” (p. 231). Ukraine did not yet formally ratify the Rome Statute but it lodged two declarations under Article 12(3) of the Rome Statute, and these declarations, it is submitted, may be taken as grounds not just for giving the ICC formal jurisdiction with respect to alleged crimes, in accordance with the Rome Statute, but also as ones for invoking Russia’s responsibility under Article 18(a) of the Vienna Convention.

Given the harsh tone of the MFA statement of 16 November 2016 quoted above, it is certain that Russia would deny the existence of any obligation under the Rome Statute on its part, if the ICC Prosecutor decided to proceed to the investigation stage. In particular, Russia would not be willing to transfer to the ICC any of its nationals for which a warrants of arrest are issued, or to otherwise cooperate with the Court. Yet, in the circumstances, Russia’s transfer of its indicted nationals to the ICC would not be a form of cooperation with the Court, which is an obligation of States Parties under the Rome Statute. Under general international law, it would be a form of satisfaction for the alleged breach of Russia’s interim obligation under Article 18(a) of the Vienna Convention on the Law of Treaties, in the sense of Article 37 of the Draft Articles on State Responsibility:

1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality […]

 The International Law Commission’s Commentary to Article 37(2) reads that:

[t]he forms of satisfaction listed in the article are no more than examples. The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance […] Many possibilities exist, including due inquiry into the causes of an accident resulting in harm or injury, […] a trust fund to manage compensation payments in the interests of the beneficiaries, disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act […].

Now that Russia’s active role in the occupation of Crimea and the armed conflict in Eastern Ukraine has been invoked not only unilaterally by Ukraine but also by the Parliamentary Assembly of the Council of Europe, and the Third Committee of the UN General Assembly, international expectations (and pressure) for Russia’s satisfaction – including in the form of transferring individuals wanted by the ICC to The Hague – would be high.