On 1 January Ukraine finally ratified the Rome Statute and formally became the 125th state party to the International Criminal Court (ICC).
Iryna Mudra, Ukraine’s Deputy Minister of Justice, tells Global Insight that the ratification marks a watershed moment for Ukraine. ‘Ratification gives Ukraine full access to the International Criminal Court,’ she says. ‘We hope that Ukraine’s membership will allow us to contribute to the efficiency of the ICC and, in turn, improve our chances of bringing the perpetrators of international crimes to justice.’
Although Ukraine originally signed the Court’s founding treaty on 20 January 2000, ratification was suspended in 2004 in the wake of domestic political opposition and concerns that it was incompatible with Ukraine’s Constitution.
This was partially resolved in 2016 when Ukraine amended its own Constitution to recognise the jurisdiction of the ICC. However, prevailing misconceptions about how the Court functioned and what ratification could mean for Ukrainian soldiers hampered the pursuit of political consensus on the matter. ‘Many people thought that ordinary Ukrainian soldiers would be tried in The Hague if Ukraine ratified the Rome Statute,’ says Mikhail Savva, a member of the Expert Council at the Center for Civil Liberties in Kyiv.
The Center is one of many human rights organisations that have campaigned for ratification, including by helping to prepare a draft law for its implementation. This was finally adopted by Ukraine’s parliament in August and signed into law by President Volodymyr Zelensky three days later, paving the way for the country to become a full member of the Court. ‘The ICC welcomes Ukraine as a new State Party, joining the community of states committed to accountability for the most serious crimes of concern to the international community,’ said an ICC spokesperson.
Article 124 of the Rome Statute remains controversial because it fuels concerns about the selective application of international criminal law
Jonathan Hafetz
Membership Officer, IBA Human Rights Law Committee
As part of the ratification, Ukraine decided to invoke Article 124 of the Rome Statute, which would deny the ICC jurisdiction over war crimes committed by Ukrainian nationals for seven years. This carve-out was probably to appease concerns raised by Ukrainian military and security officials about their potential exposure to the ICC, says Jonathan Hafetz, Membership Officer of the IBA Human Rights Law Committee, but it’s also provoked considerable international debate. ‘This provision of the Rome Statute remains controversial because it fuels concerns about the selective application of international criminal law, with states willing to apply the law to nationals of other countries while shielding their own nationals from prosecution,’ says Hafetz, who’s a professor at Seton Hall Law School in New Jersey.
Kirsty Sutherland, Co-Chair of the IBA War Crimes Committee, says the decision to invoke Article 124 could be problematic. ‘It’s a political compromise they perhaps felt they had to make, but the optics are negative for a state that at least ought to be striving to enhance its own military discipline and forced adherence to the laws of war – something which I know they are trying to do,’ she says.
Sutherland, who’s a barrister specialising in international criminal and military law at 9BR Chambers in London, explains that Article 124 can’t be applied retroactively and given the nature of the ICC as a court of last resort and its focus on high-level perpetrators, it remains to be seen whether it’ll be applicable to situations in future.
Mudra says the government had no option but to include the provision. ‘We have assessed that Russia, given their significant disinformation capabilities, was highly likely to use our ratification to discredit the political and military leadership, sow distrust and demoralise our soldiers – this was a significant security risk,’ she says. ‘This is why we had no other choice but to use the Article 124 option, provided by the Statute, to mitigate this risk. This was crucial to convince the top military and political leadership [in Ukraine]. Simply put, without such declaration, we wouldn’t have been able to ratify the Rome Statute.’
Article 124 has proved controversial for many states. In 2015, following a vote during the 14th session of the Assembly of States Parties, an amendment was adopted that would delete the provision altogether from the Rome Statute.
This development is largely moot, however. According to the rules and procedures governing the Rome Statute, Article 124 will remain in force for all countries until one year after ‘seven-eighths’ of the state parties have ratified this amendment. To date, only 24 state parties have actually ratified it – a far cry from the 110 required as ICC membership currently stands.
In jurisdictional terms, Ukraine’s ratification of the Rome Statute changes little as the country has recognised the ICC’s jurisdiction over crimes committed on its territory since November 2013. This has already enabled the Court to investigate alleged war crimes perpetrated in Ukraine, including relating to Russia’s annexation of Crimea in 2014 and the full-scale invasion in 2022.
As a mandatory condition for Ukraine joining the EU, some observers say ratification pushes the country further away from Russia’s ideological and territorial grip. However, as Russian President Vladimir Putin’s state visit to Mongolia in September demonstrates, the ICC still faces considerable challenges in detaining senior Russian officials and bringing them to justice.
In October, the ICC’s Pre-Trial Chamber II found that Mongolia had failed to comply with the Court’s request to cooperate with the arrest and surrender Putin. It referred the matter to the Assembly of States Parties. An ICC spokesperson confirmed that Mongolia has requested to appeal this ruling and the judicial process before the ICC judges is ongoing.
As a state party, Ukraine will now have a greater say in how the Court is managed, including voting on adopting amendments to the Rome Statute, on the use of the ICC’s budget and the election of judges, prosecutors and deputies.
Savva hopes the country will now also be empowered to push for more investigations. He highlights that the ICC has initiated numerous cases related to the war in Ukraine, in regards for example to systematic attacks on civilian infrastructure and allegations of responsibility for the abduction of Ukrainian children. However, thus far the Court hasn’t addressed ‘landmark crimes such as the unlawful imprisonment of Ukrainian civilians, the torture of Ukrainians, and the falsification of criminal cases by Russian investigators, prosecutors and judges,’ he adds.
