Civil society has welcomed Ukraine’s expansion of its acceptance of ICC jurisdiction as a clear signal of its commitment to accountability for grave crimes. The move means the ICC prosecutor can investigate war crimes and crimes against humanity allegedly committed in the east of the country since February 2014.
On 8 September, the ICC announced it had received a declaration under article 12(3) of the Rome Statute by Ukraine accepting the Court’s jurisdiction with respect to alleged crimes committed in its territory since 20 February 2014.
The ICC prosecutor now has jurisdiction to investigate and, if necessary, prosecute individuals for any alleged war crimes, crimes against humanity or genocide committed on Ukrainian territory, or by Ukrainian nationals anywhere, from that date onwards.
Although Ukraine is not a member of the ICC, article 12(3) allows states that are not party to the Rome Statute to accept the jurisdiction of the Court.
The ICC Office of the Prosecutor (OTP) is currently conducting a preliminary examination into events in Ukraine between 21 November 2013 and 22 February 2014 following Ukraine’s first article 12(3) declaration accepting ICC jurisdiction in April 2014.
Numerous war crimes and crimes against humanity are alleged to have been committed in eastern Ukraine since February 2014, including violence against civilians and the shooting down of Malaysia Airlines flight MH17 that killed all 298 on board.
“Ukraine’s decision to expand its acceptance of ICC jurisdiction is a clear signal of its commitment to accountability for grave crimes and an important step towards ending impunity,” said Kirsten Meersschaert, the Coalition’s regional coordinator for Europe. “The Office of the Prosecutor has said that it opens a preliminary examination as a ‘matter of policy’ following the receipt of Article 12(3) declarations, so we expect the preliminary examination to be expanded to cover acts committed from 20 February 2014,” Meersschaert continued. “While this latest declaration is a welcome development, it must now be followed by concrete steps towards ratification of the Rome Statute to ensure Ukraine becomes a fully-fledged ICC member state.”
“Ukraine has taken a crucial step towards ending violence and armed conflict in the east of the country. Victims now have an opportunity to access justice for heinous crimes they have suffered,” said Roman Romanov, human rights and justice program director International Renaissance Foundation, Ukraine. “This move sends an important message to both Ukrainian society and to the international community that Ukraine rejects impunity for grave crimes. The next step is for national investigations to be stepped up and for Ukraine’s full cooperation with the ICC. Peace comes not when the guns are silent, but when justice is done.”
ICC preliminary examinations are conducted to determine whether to open a full investigation into a given situation, taking into consideration the Court’s jurisdiction, whether national authorities are investigating and prosecuting any alleged grave crimes, and if an ICC investigation would be in the interests of justice. If, after all of these analyses, the OTP concludes that there is a reasonable basis to proceed with an investigation, it must request authorization from ICC judges to open a full investigation.
Ukraine signed the Rome Statute on 20 January 2000, but due to a 2001 constitutional court ruling declaring the treaty incompatible with Ukraine’s constitution, the government has not ratified the Statute. Civil society has been calling on Ukraine to ratify the Statute for many years.
According to the ICC, the declaration obliges Ukraine to cooperate fully with the ICC in the context of its investigation into the alleged crimes, in conformity with Part IX of the Rome Statute.
Two other article 12(3) declarations have been made. The first by Côte d’Ivoire, before it eventually ratified the Rome Statute; the second by Palestine earlier this year.
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