AS UKRANIAN CRISIS CONTINUES, ITS INTERIM GOVERNMENT LOOKS TO THE INTERNATIONAL CRIMINAL COURT TO PROSECUTE FORMER PRESIDENT

In one of the latest developments coming out of the ongoing crisis in Ukraine, where months-long protests that generated violent confrontations between demonstrators and the police led to the fall of the ruling Ukraine - CCgovernment, news outlets report that on February 25th the Parliament voted to “send” the deposed and now fugitive former president Viktor Yanukovych to face charges before the International Court of Justice (ICC) in the Hague. The Resolution, which received overwhelming parliamentary support, links Yanukovych with the violence that led to at least 82 deaths as of the previous week. It also named two other fugitive former officials, former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, as presumably responsible for crimes for which the ICC has jurisdiction. As reported by The Guardian,  that same day a spokesman for the ICC stated that the Tribunal had not yet received a formal request from the new Ukrainian government to investigate events in Kiev, adding that “[a] government can make a declaration accepting the court’s jurisdiction for past events,” and that an ICC prosecutor would then decide whether to proceed.

The above notwithstanding, a subsequent note in the legal blog Opinio Juris  raised some doubts regarding the legal effect of the February 25th Parliamentary Resolution which could complicate the possibility of an ICC investigation. This is due to the fact that although Ukraine has signed the Rome Statute that established the ICC, it has yet to ratify it. Moreover, Ukraine’s Constitutional Court has previously expressed that the Rome Statute itself is not in conformity with the country’s constitution, which includes an article stating that the administration of justice is of the exclusive competence of the Ukrainian courts and that judicial functions cannot be delegated to other bodies or officials. Accordingly, before the matter is duly referred to the ICC for its attention, the Parliament may first have to move to amend the Ukrainian Constitution and, possibly, also ratify the Rome Statute.

The ICC was created in 1998 and began operations on July 1, 2002. As of May 1, 2013 one hundred twenty-two (122) States have signed the Rome Statute. The ICC is the first permanent, treaty-based, international tribunal with competence to apply international criminal law. Currently, it possesses competence to adjudicate three defined international crimes: genocide, crimes against humanity, and war crimes. The Rome Statute defines these crimes broadly, as a reflection of the past and future development of these terms in accordance with international law. The ICC has authority to exercise jurisdiction over these crimes either when they are committed within the territory of one of the States that have ratified the Rome Statue, by nationals of one of those same States, or when a State that has not ratified the Rome Statute willingly accepts territorial or nationality jurisdiction. In addition, the ICC may also acquire jurisdiction via a referral submitted by the United Nations Security Council. The statement by the ICC spokesman regarding the situation in Ukraine appears to refer to the third option. As a final point, it is important to point out that the ICC’s jurisdiction is always complementary to that of States when they are unwilling or unable to prosecute, meaning that an investigation or prosecution cannot proceed in the ICC if it is already being investigated or prosecuted by a State which possesses jurisdiction, unless that national investigation or prosecution is determined not to be genuine.

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