Out of Africa – ICC requested in Ukraine

In an interesting development, today the RADA passed a resolution asking the International Criminal Court to try Viktor Yanukovych (and associates) in The Hague.

I have written about the ICC and The Rome Statute before – in fact I have been featured on the CICC website in the past.

Less than a week ago Kirsten Meersschaert Duchens, the Regional Coordinator for Europe of the CICC and myself were engaged in discussion over any role for the ICC in relation to the occurrences within Ukraine – in summary then agreeing that the ICC indeed had a role and perhaps an obligation to at the very least collect evidence even if matters remained outside their jurisdiction.

Today changes the dynamic of our discussion quite obviously – but – there are Constitutional issues as I have previously written.

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 here 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 under which it is likely Vitkor Yanukovych (and associates) will fall foul.

Thus, it may very well be that the RADA vote, despite Ukraine being a signatory to the Rome Statute, is in fact unconstitutional.  To circumvent this possible “legality” for Viktor Yanukovych, perhaps another route should be taken to allow ICC jurisdiction that would have less wiggle room for defence lawyers?

There is a possible solution in that the UN can direct the ICC to investigate this issue and perhaps a RADA appeal to the UN would be wise to run in tandem with the direct request to the ICC itself.

Naturally the UN route is not without problems either – for such a direction must come from the UNSC, upon which Russia sits with veto in hand.

Perhaps OSCE investigations and the European Courts would be an easier route for independent, unbiased judicial due process?

The RADA wisely removing the perceived corruption of Ukrainian courts from the domestic public perception is understandable – but it must be belt and braces secure in the legal mechanisms to do so.

In short, can or should any Ukrainian government offer up Ukrainian citizens – no matter their alleged crimes or how obnoxious they be – to the jurisdiction of a court that its own Constitutional Court prevented the ratified recognition of?  Messy?

Whatever the case, the ICC will be very keen to get “out of Africa” given the opportunity!


  1. Mark Kersten says:

    Many thanks for the very interesting, useful and informative post.

    However, I don’t believe that Ukraine’s Parliament has sought to ratify the Rome Statute but simply grant it jurisdiction into recent events. There may be issues to having Yanukovych sent to The Hague. But I don’t think the constitutionality of the Rome Statute (as a whole) should play into the current request for the ICC to play intervene.

    If it’s of interest, I wrote a piece last week on the ICC and Ukraine which echoed support for the ICC collecting evidence: http://justiceinconflict.org/2014/02/20/should-the-ukraine-be-on-the-iccs-radar/

    • I have no issues over the request for the ICC whatsoever – it will be far better for a court that is not domestic to try these people to avoid the perception of corrupt courts doing the will of a new administration.

      The issue is the constitutionality – or not – of subjecting citizens of Ukraine to the jurisdiction and due process of the ICC via an unratified treaty and any escape route that may provide a very good (and undoubtedly expensive) defence team.

      It would be a disaster for any trial to collapse due to starting from a flawed legal position and also undermine the entire reasoning for having an external court process deal with the issue if it is in any way perceived as illegitimate by some of the Ukrainian constituency.

      A case of starting on a solid and legally justified foundation to begin with.

      As you rightly state, the RADA has not sought to ratify the Rome Statue as that requires constitutional changes – not something an interim government should undertake as simply by being interim it raises issues of legitimacy.over such serious issues.

      Today having sacked a good number of Constitutional Court judges, the route for another review via that body is temporarily removed too.

      The point is to remove all possible wriggle room (when the accused are caught) through “technicalities” of the due process itself.

  2. From a number of perspectives there is absolutely nothing for Yanukovych to fear
    from the aggression provisions. The ICC does not (yet) have material jurisdiction over aggression, the ICC actually does not have ANY jurisdiction over ANY crime in Ukraine whatsoever, and – even if the ICC has jurisdiction over aggression committed by Yanukovych – hell freezes over before the recent acts can be qualified as aggression. That paragraph makes no sense at all. In addition, constituional issues aside, if a newly installed Head of Government accepts the jurisdiction of the ICC by way of a declaration, this act is effective from an international law point of view (international law does not really concern itself with constitutional divisions of power, see my comment on Opinio Juris http://opiniojuris.org/2014/02/26/modest-suggestion-ukrainian-parliament/#comments).


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