Ukraine’s Path to Brussels Runs Through Rome

The European Commission’s recent report dated November 8, 2023, on the outlook for the start of negotiations with Ukraine on its accession to the European Union (EU), emphasized five times that Ukraine had not ratified the 1998 Rome Statute of the International Criminal Court. The report thereby brings to the fore the matter of ratification of this international treaty by Ukraine and makes us revisit the pros and cons of this step once again.

Ukraine signed the Rome Statute back on January 20, 2000, but its ratification was hindered for a long time by the Opinion of the Constitutional Court of Ukraine of 2001 that the Statute was inconsistent with the Constitution of Ukraine. Later on, Article 124 of the Constitution of Ukraine was amended, allowing Ukraine to recognize the jurisdiction of the International Criminal Court (ICC) on the principles of the Rome Statute. Although these amendments became effective back in 2019, steps are yet to be taken to ratify the Statute. Meanwhile, in 2014 and 2015, Ukraine made declarations about the ad hoc recognition of the ICC jurisdiction, authorizing the Court to prosecute and punish international crimes against participants of the Revolution of Dignity (the 2014 Declaration) and international crimes committed in the context of the Russian Federation’s aggression against Ukraine (the 2015 Declaration).

Let us consider the key arguments that are most often put forward in support of Ukraine’s ratification of the Rome Statute.

First, Ukraine must ratify the Rome Statute, since it has assumed an international legal obligation to do so. Obviously, the fact that the Rome Statute of the International Criminal Court was concluded by and between 124 states does not mean that other states are required to do the same. However, Ukraine made a commitment to the EU to ratify the Rome Statute when it signed the Association Agreement with it in 2014. Article 8 of this international treaty expressly obliges Ukraine to ratify and implement the Rome Statute.

Second, in light of the irreversibility of Ukraine’s European course proclaimed in the preamble to the Constitution of Ukraine, Article 8 of the EU Association Agreement seems to be evolving from an international legal obligation into a constitutional imperative. If the irreversibility of Ukraine’s European course is one of the fundamental constitutional ideas, and the EU-Ukraine Association Agreement is part of this course, it is only natural that the implementation of the Agreement’s provisions, including its Article 8, is mandatory for Ukraine not only in terms of international law but also in terms of the national Constitution.

Third, ratification by Ukraine would open up the possibility for Ukraine to influence the activities of the ICC “from within,” for example, by participating in the election of the Court’s officials or in the approval of its budget. Among other things, the ratification of the Rome Statute will open up the possibility for Ukraine to propose amendments to the Statute. For example, it is widely discussed now that the ICC’s jurisdiction should be expanded to cover the crime of aggression, as the Russian Federation’s aggression against Ukraine has revealed its obvious limitations: the ICC is empowered to consider cases of crimes of aggression only where a state party to the Rome Statute has committed an act of aggression against another state party. Would it not be logical if Ukraine, which suffers from one of the largest crimes of aggression in modern history, led the campaign to expand the ICC’s jurisdiction over this type of international crime?

Fourth, the huge number of international crimes recorded by Ukrainian law enforcement agencies indicates that the investigation of the situation in Ukraine launched by the ICC will last for decades rather than for years. In light of this, Ukraine should hardly build its relations with the Court on the basis of declarations of acceptance of jurisdiction, which only impose obligations on Ukraine but offer no opportunity to influence the ICC’s activities from the inside.

Fifth, more than 120,000 war-related criminal proceedings have been registered in Ukraine so far. Most of them are actual international crimes. Over a hundred cases have either been brought to court, or verdicts against the Russian military in these cases have been delivered already. At the same time, the Criminal Code of Ukraine defines elements of international crimes with significant differences compared to the Rome Statute, and serious problems exist in the protection of witnesses and the protection of the rights of victims of these crimes. For example, the elements of numerous war crimes are not clearly defined, while crimes against humanity are not mentioned in the Criminal Code at all. This results in the development of national investigation and prosecution practices that sometimes contradict international criminal law. These discrepancies will become even greater down the line. It is the immediate ratification of the Rome Statute that can correct the shortcomings of the domestic system and set the right direction for investigating thousands of international crimes.

Nevertheless, the above arguments in favour of ratifying the Rome Statute do not appear convincing to certain Ukrainian politicians and public figures. Let us see how they argue against the ratification of the Statute.

First, it is often argued that the ratification of the Rome Statute would allegedly result in numerous criminal prosecutions against the Ukrainian servicemen. This argument, however, is utterly unconvincing. Ukraine’s acceptance of the ICC’s jurisdiction based on the 2014 and 2015 Declarations has already given the Court an opportunity to prosecute and punish any international crimes committed within Ukraine or by Ukrainian citizens. Therefore, Ukraine’s ratification of the Rome Statute will in no way affect the ICC’s jurisdictional powers. Obviously, if the Court had grounds for criminal prosecutions against Ukrainian citizens and, even more so, if it were interested in massive show trials against Ukrainians, as opponents of the Rome Statute ratification say, it would have happened long ago. However, since the Office of the Prosecutor of the ICC began investigating the situation in Ukraine (March 2, 2022), not a single Ukrainian citizen has been charged, despite the fact that, for over a decade, Ukraine has been involved in an armed conflict that has been a full-scale war for almost two years. Furthermore, it is to be understood that the ICC simply lacks the human resources or financial capacity to conduct massive criminal prosecutions. Opponents of the ratification of the Rome Statute would often appeal to the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY), which for some time indeed prosecuted persons who were at the lower levels of the hierarchical chain of command, without having access to persons in the top tiers at that time. However, unlike the ICTY, the ICC was originally conceived as a court that would prosecute only those who were as close as possible to the top of the hierarchical chain of command, while the burden of prosecuting and punishing the vast majority of international criminals under the Rome Statute should be borne by states.

Second, opponents of the ratification of the Rome Statute would often supplement the previous assertion with statements that Ukraine’s cooperation with the ICC on the basis of the declarations of acceptance of jurisdiction can protect Ukrainian citizens from imaginary massive criminal prosecutions, since, should the ICC resort to such practice, Ukraine would simply withdraw these declarations and thereby deprive the ICC of jurisdiction over Ukrainian citizens. In fact, this assertion is a classic example of wishful thinking, as both the ICC and other international judicial institutions consistently assume that if states refuse to recognize the jurisdiction of international judicial institutions, it will entail legal consequences only for future investigations and trials rather than for ongoing ones. Therefore, Ukraine’s withdrawal of its acceptance of jurisdiction will not stop the investigation of the situation in Ukraine, which has already been initiated by the Office of the Prosecutor of the ICC. Furthermore, if someone believes that there is a real risk of unjustified massive criminal prosecutions of Ukrainian citizens by the ICC, then no matter how paradoxical it may seem, it is exactly the ratification of the Rome Statute that can offer legal protection against such arbitrariness. Article 124 of the Statute stipulates that a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to military crimes when a crime has allegedly been committed by its nationals or on its territory. Recognizing ad hoc the jurisdiction of the Rome Statute, as Ukraine did in 2014 and 2015, does not offer such an option for a state.

Third, opponents of the ratification of the Rome Statute usually point out that this international treaty has not been acceded to by the states that are permanent members of the UN Security Council — the United States, China, and, most importantly, the Russian Federation, which has been engaged in armed aggression against Ukraine for a decade now. However, the non-accession of these states to the Rome Statute does not mean that an “iron curtain” protects their citizens from criminal prosecution by the ICC. For example, on March 17, 2023, the Court issued arrest warrants for Vladimir Putin and Maria Lvova-Belova in the case of deportation and forced displacement of Ukrainian children. Besides, the ICC has been investigating the situation in Afghanistan for several years, which may affect U.S. citizens. And why should Ukraine be guided in the matter of ratifying the Rome Statute by the example of the United States or China when all member states of the EU, which Ukraine is seeking to join, are parties to this international treaty?! The Rome Statute is not a part of European Union law, but the member states of this international organization coordinate their policies on combating international crimes. For example, the European Network for investigation and prosecution of genocide, crimes against humanity and war crimes has been operating within the EU for many years. Participation of EU member states in the Rome Statute is part of the EU policy on preventing international crimes. The fact that the obligation to ratify the Rome Statute was included in the Association Agreement with Ukraine testifies to the great importance of the Rome Statute for the EU.

Fourth, another common argument made against the ratification of the Rome Statute is the alleged inefficiency of the ICC. Its proponents say that the Court, over the course of its existence, has convicted very few defendants who sometimes manage to evade arrest warrants for a long time (like former Sudanese President Omar al-Bashir), while acquittals often occur in the Court’s practice (like in the case against Jean-Pierre Bemba), etc. These allegations partially exaggerate actual problems, and partially are manipulations. The ICC is the first permanent international criminal tribunal in human history. Unlike the tribunals that operated after World War II or in the 1990s, it mainly exercises its jurisdiction over events (armed conflicts or other mass violence) that are ongoing at the time when the investigation is initiated rather than over events that occurred in the past. This objectively hinders the ICC’s access to alleged perpetrators of international crimes who can effectively hide behind positions of power or the “fog of war,” but this does not mean that the ICC’s existence is meaningless. Only a permanent international judicial institution has the potential, on the one hand, to be resistant to external political influence and ensure that justice is impartially administered and, on the other hand, to respond promptly to new instances of international crimes. The relatively small number of guilty verdicts handed down by the ICC should not be surprising, since, as noted above, this Court is designed to prosecute and punish those who occupy the highest positions in the chains of authority. Therefore, from the moment the Rome Statute was adopted, it was clear that the ICC would not operate as a “judicial assembly line.” Indeed, acquittals were handed down by all international criminal tribunals, not just the ICC (for example, Hans Fritzsche, Franz von Papen, and Hjalmar Schacht were acquitted at the Nuremberg trials). Rather than being an indication of the helplessness of these judicial institutions, it testifies to the fact that they sought or seek to deliver real, not sham or bogus, justice.

Coming back to the European Commission’s report mentioned earlier in this essay, it is no coincidence that there have been repeated reminders of Ukraine’s incomplete “homework” in the form of ratification of the Rome Statute. It is almost certain that without ratification of the Statute, Ukraine’s accession to the European Union will never happen. So, is there really any point in putting off this step any longer?!