The ICC concludes its preliminary examination in Crimea and Donbas: What’s next for the situation in Ukraine?

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Last week was eventful for the ICC despite the disruption of its work caused by the current pandemic. While everyone tuned in to the live hearings with the expanded list of candidates for the coveted position of the new ICC Prosecutor, the outgoing Prosecutor, Fatou Bensouda, was busy tidying up her work desk for the incoming Prosecutor by taking decisions on the fate of some key situations pending determination at the preliminary examination stage. First, she issued a statement on the conclusion of the preliminary examination of the situation in UK/Iraq, refusing to move ahead with an investigation due to the lack of evidence showing that the UK was unwilling to genuinely investigate alleged war crimes committed by its soldiers in Iraq. The OTP’s questionable complementarity assessment was discussed elsewhere. From a broader perspective, the ICC Prosecutor’s decision not to investigate may be seen by some as an attempt to steer clear of situations potentially implicating criminal responsibility of nationals of powerful states, especially in light of the lessons learnt when dealing with the situation in Afghanistan and the acrimonious relationship with the Trump administration that ensued. For a moment there, the prospects for the situation in Ukraine seemed bleak. It was not unreasonable to speculate that Ukraine’s situation may follow similar suit as the UK/Iraq situation, if the ICC Prosecutor wished to avoid being at loggerheads with Russia. However, those fears were unfounded, as two days later, the ICC Prosecutor issued a statement in which it was announced that the “statutory criteria for opening investigations into the situation in Ukraine have been met”, and the OTP will request authorisation from a Pre-Trial Chamber (PTC) to open investigations into the situation in Ukraine.

Ukraine and Russia’s legal standing at the ICC

Given that Ukraine is a non-State Party to the Rome Statute (RS), the preliminary examination was triggered by Ukraine’s declarations on the acceptance of the ad hoc jurisdiction of the Court on two separate occasions: the first declaration lodged in April 2014 in relation to the ‘Maidan crimes’, on which the ICC Prosecutor earlier decided not to act (Marchuk); and the second, submitted in September 2015 pertaining to the alleged crimes in Crimea and eastern Ukraine from 20 February 2014 onwards (Marchuk). Russia has not ratified the RS and symbolically withdrew its signature from the Statute following the publication of the ICC Prosecutor’s damning report in 2016, which recognised that Crimea was occupied by Russia within the meaning of international humanitarian law (IHL), and that Russia was militarily involved in the conflict in eastern Ukraine (paras 158, 169-170). From a legal perspective, Russia’s withdrawal of its signature has no legal consequences, as it has never completed the ratification process. However, this does not mean that Russian nationals can shield themselves from criminal responsibility, since the ICC can exercise its jurisdiction over Russian nationals who have committed crimes on Ukrainian territory (see here). Russia’s withdrawal effectively put an end to its cooperation with the ICC, not only in relation to the situation in Ukraine but also the situation in Georgia. Although the ICC Prosecutor mentioned in her statement that her office assessed domestic proceedings in Russia relevant to the situation in Ukraine, it is highly unlikely that such information was communicated by the Russian government through official channels.

The ICC Prosecutor’s decision and domestic reactions

Given the overwhelming number of communications submitted to the ICC regarding alleged war crimes and crimes against humanity both in relation to Crimea and Donbas, the ICC Prosecutor did not have any difficulties in concluding that a reasonable basis exists to believe that a broad range of crimes falling within its jurisdiction have been committed in Ukraine. Here, the Office of the Prosecutor (OTP) specifically singled out (1) crimes committed during hostilities, (2) crimes committed during detentions, and (3) crimes committed in Crimea, all of which meet the required gravity threshold. As for the documentation of the conflict related crimes in Ukraine, much credit should be given to the highly coordinated work carried out by the Ukrainian prosecutorial authorities (e.g. the Crimean Prosecutor’s Office in Exile, the General Prosecutor’s Office) and NGOs in collecting, systematising and documenting evidence about the crimes, which formed part of the official communications to the ICC. The complementarity assessment by the OTP proved to be more difficult, as Ukrainian authorities have initiated a number of domestic criminal proceedings both in relation to Crimea and Donbas (214 criminal proceedings arising out of the armed conflict have been registered under Article 438 of Ukrainian Criminal Code since 2014, 10 cases have been directed to national courts and 2 verdicts have been rendered). The ICC Prosecutor has assessed national investigative and prosecutorial efforts through the prism of ‘domestic inaction’ with regard to both Ukraine and Russia in relation to persons and conduct of potential interest to the ICC; as well as ‘inability’ stemming from Ukraine’s absence of control over parts of its territory, thus rendering the Ukrainian authorities genuinely unable to obtain any accused and the necessary evidence.

The ICC Prosecutor’s decision received a jubilant reception in Ukraine, with many Ukrainian officials (here and here) perceiving it as a step towards closing the impunity gap. However, some media outlets have incorrectly presented the ICC’s situation in Ukraine as a “Ukrainian lawsuit against Russia”, and the ICC Prosecutor’s decision as endorsing the investigation of “Russian armed aggression against Ukraine”. Russia has not officially responded and is unlikely to do so. In the meantime, Moscow and Kyiv have been embroiled in a heated exchange regarding Russia’s imposition of sanctions on 849 Ukrainian nationals, which was made public (by coincidence or otherwise) on the same date the ICC Prosecutor announced the conclusion of the preliminary examination.

Will the PTC authorise an investigation?

The Prosecutor is yet to request the PTC to authorise the initiation of an investigation into the situation in Ukraine. Previously, the ICC Prosecutor submitted similar proprio motu requests for initiating an investigation with regard to the situations concerning Kenya, Cote d’Ivoire, Georgia, Burundi, Afghanistan and Bangladesh/Myanmar, all of which were eventually authorised by the PTC to proceed to investigation stage. While the usual practice in such situations had been for the PTC to agree with the Prosecutor’s assessment of the statutory criteria leading to the opening of an investigation, this practice was challenged for the first time when the Prosecutor requested the initiation of an investigation into the situation in Afghanistan. Here, the PTC declined to initiate an investigation after carrying out its own de novo assessment of the ‘interests of justice’ criterion.  However, the Appeals Chamber reversed the PTC’s ruling, having found that the PTC erred in its interpretation of article 15(4) of the RS when it reviewed the Prosecutor’s assessment of the interests of justice criterion. Instead, the PTC was only bound to assess “whether there is a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction” (para. 46).

It is unlikely that the PTC will deviate from the ICC Prosecutor’s assessment regarding the existence of the necessary jurisdictional criteria and the gravity threshold in the situation of Ukraine. It remains to be seen whether the PTC will concur with the OTP’s complementarity assessment, especially with regard to the assessment of ‘domestic inaction’ in relation to Ukrainian domestic investigative and prosecutorial attempts. That said, the prospects of the situation in Ukraine proceeding to the investigation stage are high and there is nothing indicating that the PTC will have any solid reasons for disagreeing with the OTP’s assessment.

Focus of a potential investigation

Despite the misconceptions shared by some Ukrainians about a potential ICC investigation only targeting Russian nationals (also reflected in Ukraine’s declaration on the acceptance of the ad hoc jurisdiction), the ICC Prosecutor’s mandate requires her to investigate alleged crimes committed by all parties to the conflict, including both Russian and Ukrainian nationals. Over the last years, the ICC Prosecutor’s annual reports consistently accounted for the commission of alleged crimes by different sides to the conflict: (1) members of Russian military (e.g. Illovaisk, para. 87) and representatives of the occupying authorities in Crimea (paras 75-82); (2) members of pro-Russian separatist (or anti-government) forces, i.e. self-proclaimed “Donetsk and Luhansk People’s Republics” (para. 278); and (3) Ukrainian government forces (ibid). In terms of the gravity of alleged crimes, the OTP indicated that members of pro-Russian separatist forces have generally committed alleged crimes “of a more severe nature and on a significantly larger scale than members of Ukrainian government forces” (ibid).

During its admissibility assessment, the OTP took into consideration a number of criminal proceedings against both members of Ukrainian government forces and members of pro-Russian separatist entities that had been initiated by the Ukrainian authorities (para. 284). Generally, only high-level perpetrators who have committed the most serious international crimes will face prosecution at the ICC (ideally leaving the prosecution of low-level perpetrators to the national legal systems). At present, it is unclear how far down the chain of command or political leadership the ICC Prosecutor is willing to travel when pursuing potential cases in the Ukrainian context. As an illustration, the furthest the Ukrainian national authorities got when initiating domestic proceedings in terms of the chain of command in Donbas were informal leaders of the DPR, namely Igor Girkin (also one of the accused in the MH17 trial before The Hague District Court) and Igor Bezler (alleged to have been assassinated by Russian special forces). As for the most senior Russian representative of its administration in Crimea, the most high-profile war crimes suspect to date has been a current MP of the Russian State Duma, Natalia Poklonskaya, who acted as the so-called Crimean Prosecutor after the occupation of Crimea and who supported politically motivated charges against members of the Crimean Tatar representative body ‘Medzhlis’ (which resulted in the organisation being banned under the pretext of it being a “terrorist” organisation and the imprisonment of its senior leaders). In 2016, Ukraine’s Chief Military Prosecutor’s Office went so far as to bring charges against Russian Defence Minister Sergei Shoigu and other senior Russian officials, including its high-ranking military generals. However, the fate of these criminal proceedings is unclear as the Office was recently disbanded.

One of the obstacles in ratifying the RS is the commonly shared fear by Ukrainian lawmakers that this would lead to the prosecution of alleged crimes committed by members of the Ukrainian armed forces who are considered to be national heroes. Ukraine’s acceptance of the ICC’s ad hoc jurisdiction already entitles the Prosecutor to investigate alleged crimes committed by all sides to the conflict. Therefore, Ukraine’s postponement of ratification is simply illogical and short-sighted. Given the OTP’s indication that more severe crimes on a significantly larger scale appear to have been committed by the other parties to the conflict, it is doubtful that proceedings against members of the Ukrainian armed forces will be on the ICC’s priority list.

The ICC’s lack of resources

Should an investigation be initiated, what may stand in its way however is the ICC’s dire lack of resources. The OTP has been under enormous financial strain due to an ever-increasing number of situations under its preliminary examination and investigation, with no budget increase to account for the workload, coupled with the operational challenges caused by the COVID-19 pandemic. The Prosecutor’s statement puts it bluntly that the OTP will “need to take several strategic and operational decisions on the prioritisation of the Office’s workload”. It remains unclear what this would entail for the investigation of the situation in Ukraine in the future (provided it is authorised by the PTC) and other situations (e.g. Nigeria). The statement could be read as a measure of last resort by the outgoing Prosecutor to bolster support for the allocation of additional funding by the ASP for the needs of the OTP. As a non-ratifying state, Ukraine should read this as an active call to speed up the ratification of the Rome Statute, which would place it in a position of a financially contributing State Party to the overall budget of the Court. Why would the ICC prioritise and commit to investigating a situation of a non-state party when there is a line-up of situations concerning ICC States Parties? Ukraine should question itself on the seriousness of its commitment to international criminal justice. Thus far, absent the ratification of the RS, its attempts have been half-hearted.

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