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Ukraine and The Rome Statute (Again)

February 24, 2015

Over the years, several entries have appeared here relating to Ukraine and The Rome Statuteprimarily dealing with the issues of why Ukraine has still to ratify this international instrument 15 years (and a few days) after signing up to it.

Indeed relevant ruminations from this blog have been published by the CICC website historically.

“On 20th January 2000, Ukraine signed the Rome Statute and on 27th January 2007 it acceded to an agreement on the privileges and immunities of the ICC – however it has never ratified its signing of the Rome Statute in 2000 – prevented in doing so by a Ukrainian Constitutional Court ruling on 12th July 2001, that stated amendments to the Ukrainian Constitution would be required in order to do so.

The constitutional “issue” being the provision stating that “an International Criminal Court is complementary to national criminal jurisdictions” (paragraph 10 of the Preamble and Article 1 of the Rome Statute) as eloquently made very clear by Viktor Kryzhanivskyi on 2006, the then Ukrainian Charge D’Affaires to the UN.

That being the only issue within the Rome Statute preventing Ukrainian ratification (despite mention of the loosely worded “crimes of aggression” court competence – a competence which is likely to be in part responsible for US, Chinese and Russian non-ratification. 

Those few words in the Rome Statute preamble have, and currently still are, preventing Ukraine ratifying a statute it otherwise agrees with and supports.”

The RADA, in February 2014, requested ICC involvement in investigation of crimes of aggression committed against the protesters of EuroMaidan by the Yanukovych regime – an invitation for the ICC to head “out of Africa“, where it appears inextricably anchored.

Since then, of course, the situation has become far more bloody and littered with atrocities along the way that may very well fall within the ICC remit.

On 24th September 2014, Ukraine ratified the EU AA/DCFTA – which has ramifications for its recognition of the ICC.  Article 8 of the Association Agreement is short and to the point:

“ARTICLE 8
International Criminal Court
The 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.”

No elastic wording or ambiguity to be found in that text, less perhaps a time parameter in which compliance must occur.  Ukraine has thus obliged itself through the now ratified Association Agreement to ratify The Rome Statute.  Wiggle room, other than the question of timeliness, there is not.

As yet however, despite the abysmal situation in eastern Ukraine, the evidence mounting daily, both from official entities and across social media of events that may well fall within the ICC remit, amending the text to the Constitution to allow the ratifying the Rome Statute, is not topping the RADA agenda.  It’s not even close to the top, despite in doing so it provides Ukraine with an easy win amongst the international community.

It is perhaps no surprise, that almost 15 years to the day since signing up to The Rome Statute, and in the current circumstances in which Ukraine finds itself having already requested ICC investigations, Kirsten Meersschaert Duchens, friend of this blog and European Regional Coordinator for the Coalition for the International Criminal Court has mounted a(nother) campaign to push the amending of the Ukrainian Constitution and subsequent ratification of The Rome Statute, which Ukraine is now obliged to do, up the RADA agenda.

Letters to President Poroshenko, those within the Cabinet of Ministers, RADA, petitions etc., now circulating the political class, civil society, and social media, in an effort to force the issue.  Undoubtedly Kirsten will ultimately be successful – but as always, despite its obligations, it is not a question of Ukraine eventually fulfilling its (recent) obligations, but a question of timeliness as to when those obligations will be fulfilled.

CICC CGJ Feb-March 2015 Letter to Ukraine_FINAL

CICC CGJ Feb-March 2015 Letter to Ukraine_UA

CICC Ukraine CGJ_Feb2015_Press release_FINAL

CICC_Ukraine_CGJ_Feb2015_Press_release_RU

CICC_Ukraine_CGJ_Feb2015_Press_release_UA

Whilst there is currently a constitution changing majority in the RADA – and for how long that will last remains to be seen – pressure over such easy wins and achievable compliance with ratified obligations are rightly being applied now.

It is, after all, and for the sake of accuracy, 15 years, 1 months and 4 days since Ukraine signed The Rome Statute, 1 year (tomorrow) since Ukraine requested ICC investigations into EuroMaidan, and exactly 5 months to the day on since the Association Agreement was ratified, thereby obliging Ukraine to ratify The Rome Statute.

It is surely far beyond time to deal with the 10 words that have prevented ratification – and get it done.

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