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Constitutional amendments for the judiciary pass – kicking the Rome Statute can years down the road

June 2, 2016

Many years ago, an entry appeared here regarding the lack of ratification of the Rome Statute by Ukraine, despite having been a signatory to this international instrument since January 2000.

The reason for failure to ratify since the 2000 signing was outlined as follows – “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 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 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 – After all, when you are never likely to fall foul of this statute as a nation or national leader, supporting an international court that prosecutes those who do, is not a particularly difficult position to adopt.

Thus Ukraine remains a supporter of the ICC and continues to state it will – eventually – ratify the Rome Statute.”

That was then (February 2013) – and this is now, with a very different Ukraine finding itself in very different circumstances.

It is a nation now engaged in a (confined) military war with Russia (as well as fighting on political, diplomatic, cultural, informational and economic fronts).

ICC

Thus since that entry was written, there are certainly events (particularly in the earliest months of the conflict) that may now fall foul of any ICC involvement since hostilities began in 2014 – by both sides and by parties both de jure and de facto under governmental control at the time – not withstanding any holistic opinion.

Since that 2013 entry, Ukraine and the EU have also ratified the Association Agreement/DCFTA.  Article 8 of that ratified instrument obliges Ukraine to ratify the Rome Statute.

On 2nd June 2016, the Verkhovna Rada found 335 votes, a constitutional parliamentary majority, thus passing amendments to the Constitution of Ukraine regarding the judiciary and judicial machinery.  A step in the right direction for reform, despite several can-kicking dates for certain actions to occur.  In short the amendments to the Constitution will not go fully “live” until 2019 to allow for various stages of “transition”.  Further some statutory legislation was passed regarding implementation and timetables therefore.

Within the text that saw 335 parliamentarians finally point the judiciary in the right direction (generally and constitutionally speaking) was mention of the Rome Statute.  In short, the amendments postpone ratification of the Rome Statute, as required in the already ratified AA/DCFTA, for (another) 3 years.

Naturally a cynic will infer that such a delay is deliberately orchestrated with the singular intent that the conflict in eastern Ukraine has cooled – or perhaps even frozen – during this 3 year period.

(A reader would be perhaps wise to dismiss, if they have not already done so, the policy necrophilia related rhetoric of “full implementation of Minsk”, for “full implementation” is not going to happen – albeit part implementation there may eventually be.  A reader would also be wise to consider that Minsk is not a legally binding agreement upon anybody.  It has been ratified by nobody and thus nowhere has it been deposited as a legal instrument.  It is a framework document of no legal standing, and nothing more – albeit the only “plan” around to theoretically reach a conclusion to current events.)

It is extremely unlikely that any events prior to ratification will be/can be retrospectively subjected to ICC competence despite eventual ratification – particularly with unofficially official obstruction into certain events 3 years from now when the Rome Statute ratification can then rise up the legislative agenda once more and perhaps become a reality.

Those 3 years may also provide time for the loss, contamination, or deliberate destruction of evidence against those Kyiv may prefer not to have prosecuted – notwithstanding any Minsk framework application of mentioned amnesties should matters progress that far (which seems unlikely when all-for-all prisoner swaps and ceasefires cannot even be fulfilled).

There should be no illusions that the current Kremlin (and perhaps that which comes thereafter) will remain at war with Ukraine for many, many years to come.  Even if a lasting ceasefire comes to pass, all other non-military fronts will remain very active and hostile – and a lasting ceasefire seems far from manifesting any time soon.

It is difficult to find any plausible reasoning to delay for another 3 years any ratification of the Rome Statute other than to insure Ukraine remains outside the purview of this institution whilst hostilities continue.  The Rome Statute “can” has just been legislatively kicked into the political grass by a significantly large Verkhovna Rada parliamentary vote.

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