Inaction as a path to impunity

Ten years later, the Revolution of Dignity events are firmly rooted in Ukrainian public opinion as a turning point in the history of independent Ukraine. During this time, they even became part of the school history course. However, there is still no classification of crimes against the Revolution of Dignity participants: Were they crimes against humanity? The International Criminal Court (ICC) or Ukrainian courts could provide clarity, but as of today, there is none.

The worst thing is that this state of affairs is not because the trial is being delayed due to the escape of the accused or because of the vast amount of evidence the court must examine. The reasons are far from legal issues. The prerequisites for a trial to determine the responsibility of specific individuals for acts of violence or persecution against participants in the Revolution of Dignity as crimes against humanity have not even been developed at the international or national level.

The Hague and Kyiv are equally responsible for this situation, which evokes no emotion but deep disappointment. Furthermore, such a situation is very far from the ideals of international criminal justice and the idea of ​​​​preventing impunity for international crime.

It will soon be ten years since Ukraine first accepted the jurisdiction of the International Criminal Court (ICC) using Article 12(3) of the 1998 ICC Rome Statute (RS), which allows states to accept the jurisdiction of this international judicial institution ad hoc (on a case-by-case basis) without ratifying the Rome Statute. Although in Ukraine, the first case of recognition of the ICC jurisdiction is usually associated with the statement of the Verkhovna Rada of Ukraine (VRU) dated February 25, 2014, the court itself consistently believes that its authority over events in Ukraine follows from the note of the Ministry of Foreign Affairs of Ukraine dated April 17, 2014, which was based on the statement of the Verkhovna Rada.

Be that as it may, the motives for these steps of the Ukrainian authorities were obvious. Ukraine’s recognition of the ICC jurisdiction was a reaction to numerous cases of violence and persecution suffered by participants in the Revolution of Dignity from November 2013 to February 2014. In its statement dated 25 February 2014, the Verkhovna Rada explicitly referred to them as crimes against humanity, which are defined under Article 7(1) of the 1998 ICC Rome Statute (RS) as murder, torture, persecution, and other inhumane acts committed on a widespread or systematic basis and directed against any civilian population.

On April 25, 2014, the ICC Office of the Prosecutor (ICC OP) began a preliminary study of the situation in Ukraine between November 21, 2013, and February 22, 2014. As part of this process, the ICC OP had to determine whether there were sufficient grounds to believe that crimes within the jurisdiction of the ICC, particularly crimes against humanity, had occurred and whether these crimes were worthy of the court’s attention.

Unfortunately, the preliminary study of the situation in Ukraine was initially in a “frozen” state. The main reason for this appears to have been the conservative position of the ICC Prosecutor’s Office. The 2015 scoping report noted, on the one hand, “acts of violence likely committed by Ukrainian authorities between November 30, 2013, and February 20, 2014, may constitute an attack directed against a civilian population,” according to Article 7(2)(a) [RS] and, on the other hand, states that “there is limited information to support the conclusion that the likely attacks carried out in the context of the Maidan protests were widespread or systematic.”

In subsequent reports in 2016, 2017, 2018, 2019, and 2020, the ICC Prosecutor’s Office has persistently repeated this position. In simple terms, the ICC OP was clear that acts of violence and persecution against participants in the Revolution of Dignity occurred and were not isolated in nature. However, the Office considered the number of such acts insufficient to view them as widespread or systematic, as suggested by the definition of crimes against humanity in Article 7(1) RS.

Of course, large-scale and systematic nature as signs of crimes against humanity leave law enforcement officers a wide field for assessing (discretion) the relevant events; however, on the other hand, international law does not stipulate that crimes against humanity can only be discussed in cases where the number of violent acts (persecutions) amounts to tens or hundreds of thousands. Therefore, the restrained position of the ICC Prosecutor’s Office was predetermined by considerations that were not legal but bureaucratic.

Behind the restrained legal assessments lies the fear that recognition of acts of violence (persecution) against participants in the Revolution of Dignity as crimes against humanity will force the ICC Office to give similar legal qualifications to situations of comparable scale in other countries, and this may ultimately turn out to be disproportionate to the personnel and financial capabilities of the Office.

The full investigation into the situation in Ukraine, which the ICC Office of the Prosecutor launched in March 2022 after the Russian invasion of Ukraine reached its fullest extent, and it formally covers the period between November 21, 2013, and February 22, 2014. Still, it is highly doubtful that the Office will choose ten-year-old cases over cases recorded almost daily since February 24, 2022, especially because of the Office’s continued skeptical position regarding the legal qualification of the 2013-2014 events as crimes against humanity.

The lack of ICC attention to the 2013-2014 events could be compensated for by an effective national investigation since the principle of complementarity, which underlies the work of the ICC, ultimately places the main burden of prosecuting and punishing international crimes on states, not on the ICC. However, in Ukraine, there was essentially no effective investigation into the events of 2013-2014. The legal qualification of violent acts and persecution concerning participants of the Revolution of Dignity as crimes against humanity is hampered by the fact that Ukrainian criminal law did not know this type of crime as of 2013-2014 and does not know it today.

The Law “On Amendments to Certain Legislative Acts of Ukraine on the Implementation of International Criminal and Humanitarian Law”, adopted in 2021, eliminates this gap. Still, it has not been signed by the President of Ukraine for almost three years and, therefore, has not been entered into force. Of course, we can say that the entry into force of this law will not change anything in cases about events that happened earlier because the criminal law does not have a retroactive effect in time. However, there are many examples of foreign states, for instance, Latvia or Estonia, applying new criminal laws that established responsibility for international crimes at the national level to past events. At the same time, this practice received approval from the European Court of Human Rights because, in similar situations, national laws only confirm that the relevant acts have already been recognized as crimes by international law.

In any case, it is challenging to call successful the attempt of the Ukrainian criminal justice authorities to prosecute acts of violence and abuse committed against participants in the Revolution of Dignity not as crimes against humanity but as “ordinary” crimes (for example, as “ordinary” premeditated murder or abuse of power by official authority ).

Many cases were closed due to the expiration of statutes of limitations, although, according to international law, crimes against humanity have no statute of limitations. In those instances where the case did end in a guilty verdict, for example, the case of the murders on Maidan Independence on February 20, 2014, the courts, in the absence of a legislative provision on crimes against humanity, considered individual episodes of violence or persecution “in isolation” from the general outline of the events of November 2013-February 2014, which ultimately legally denies rather than confirms that such episodes were contextually related.