JURIST Guest Columnist Stoyan Panov of the University of Birmingham Law School argues that there is a possible pathway for ICC involvement in the Ukraine-Russia conflict …

In light of the violence pertaining to the Maidan protests in Ukraine, one may ask if the former President of Ukraine Viktor Yanukovich and other high officials in his administration may end up in the dock of the ICC and be tried for crimes against humanity. There are indications that the Ukrainian Parliament has taken steps to submit the situation to the attention of the ICC for the alleged criminal acts covering the period of October 30, 2013 to February 22, 2014. Some allegations include mass murder, torture and enforced disappearances. The current brief covers the elements of jurisdiction, admissibility and applicable law as regards potential situation in Ukraine.

Jurisdiction

Does the ICC have jurisdiction over the situation in Ukraine? Ukraine has signed the Rome Statute [PDF] in January 2000 but has not ratified the statute. As such, Ukraine cannot be considered a state party to the ICC. In this circumstance, according to Article 12 (3) of the Rome Statute, an acceptance of jurisdiction on part of Ukraine is necessary. Ukraine will be required to lodge a declaration with the ICC to accept the exercise of jurisdiction of the Court with respect to the crimes in question. Additionally, according to Rule 44(2) of the ICC Rules of Procedure and Evidence [PDF], such declaration implies acceptance of jurisdiction for all potential crimes listed in Article 5 of the Rome Statute. Such referrals following the acceptance of jurisdiction have happened before as in the situation in Ivory Coast. Once the state declaration is accepted and the Pre-Trial Chamber concludes that the ICC can exercise jurisdiction over the alleged crimes, the procedure under Article 15 of the Rome Statute pertaining to the role of the Prosecutor is triggered.

In accordance with Article 15(3) the Prosecutor would conclude whether there is a reasonable basis to proceed with the investigation and, if so, she would submit a request for an authorization for an investigation. It means that when the Prosecutor decides whether there is a reasonable basis to proceed, Article 53(1)(a), (b), and (c) shall be leading as to whether the information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction has been committed, whether the case would be admissible under Article 17 of the Rome Statute, and whether the gravity of the crime and interests of the victims is serious enough. The Pre-Trial Chamber basically ascertains the jurisdictions ratione materiae, ratione temporis according to Article 11, and ratione loci or ratione personae according to Article 12(2) of the Rome Statute.

Second, Article 13(b) allows for the UN Security Council acting under Chapter VII of the UN Charter to refer a situation to the ICC Prosecutor. Such development is highly unlikely as Russia would most likely veto such referral on the situation in Ukraine pertaining to alleged criminal acts involving the former President Yanukovich for primarily political reasons. Moreover, it should be noted that it is reported that the former President is currently located in Russia. As Russia has just signed the Rome Statute in 2000 but has not ratified it yet, the eventual transfer to the ICC of any suspects on its territory involved in an eventual Ukraine situation remains highly unlikely.

The case would be inadmissible if the case for the alleged crimes under Article 5 of the Rome Statute is being investigated or prosecuted by Ukraine or any other state with jurisdiction over it unless the state is unwilling or unable genuinely to carry out investigations or prosecution according to Article 17(1) of the Rome Statute. Hence, if the ICC is satisfied that no such proceedings exist at domestic level, the investigation of the situation in Ukraine may be authorized if it meets the element of gravity set in Article 17(1)(d) of the Rome Statute. It is interesting to note that the Ukrainian authorities are not precluded from investigating the alleged perpetrators for other crimes such as economic crimes or abuse of power crimes.

Crimes

The jurisdiction of the ICC is limited to the most serious crimes of concern to the international community. In the particular circumstances and specifically but not limited to the events for the period of February 18-21, the ICC may exercise jurisdiction over crimes against humanity pursuant to Article 5(1)(b) as the confrontations between the protesters and the state authorities did not reach the threshold of an armed conflict. The charges would most likely fall under crimes against humanity for murder, while other counts relating to acts of torture, enforced disappearance of persons, imprisonment or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health may also be applicable.

Crimes against humanity are based on the following elements: 1) an attack directed against any civilian population; 2) a state or organizational policy; 3) an attack of a widespread or systematic nature; 4) a nexus between the individual act and the attack; 5) knowledge of the attack. “Attack directed against a civilian population” is understood to mean a course of conduct involving the multiple commission of acts referred to in Article 7(1) of the statute against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack. The Berkut or other law-enforcement forces under the orders or guidance of the former administration and/or the President may be implicated as having participated or using lethal force which resulted in the deaths of more than 80 persons who were not randomly selected but were targeted for their participation in the protests. Hence, the victims could not be claimed to be just incidental victims.

In terms of the nature of the attack as widespread or systematic, “widespread” usually refers to a large scale of the attack, which should be massive, frequent and carried out collectively by state forces against multiplicity of victims. It should be duly noted that the attacks against the demonstrators in Kiev may qualify as widespread as a widespread attack also incorporates the cumulative effect of a series of inhumane acts or the single effect of an inhumane act of very serious or extraordinary magnitude (see Ivory Coast decision, ICC 02/11, para 53). Additionally, allegations of torture and enforced disappearance of journalists and political activists of the opposition may fall under series of inhumane acts or even, because of their gravity, under the chapeau of a single act of extraordinary magnitude.

Another pertinent issue is whether the policy to commit such an attack requires that the state or organization actively promotes and encourages such an attack or, in exceptional circumstances, is implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The nexus between the individual acts and the widespread attacks may be derived from the geographic and temporal scope of the attack and the crimes, the use of excessive and lethal force on part of the state organs against civilians/demonstrators and deployment of special forces and snipers. The mental element is that the accused knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.

In terms of the alleged crimes, murder as a crime against humanity means the act of the killing or causing death of one or more persons committed as part of a widespread or systematic attack directed against any civilian population. Instances of murder occurred in Kiev on or about February 18-21 2014. Torture requires that the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons and such person was in the custody or under the control of the official perpetrator or its forces. Such instances were alleged to have taken place against political activists who were critical of the former government and president. The crime of enforced disappearance requires that the perpetrator must have arrested, detained or abducted one or more individuals or refused to acknowledge their arrest, detention or abduction, or to give information on their whereabouts and fate. The arrest, detention or abduction must have been carried out by, or with the authorization, support of acquiescence of the state officials.

Based on the evidence, official positions and effective control of the suspects, the most likely applicable liabilities would concern ordering, soliciting or inducing the commission of the crime(s) (Article 25(3)(b) of the Rome Statute), aiding and abetting the commission or the attempted commission of the crimes (Article 25(3)(c) of the Rome Statute) or contributing to the commission or attempted commission of such crimes by participation in a criminal group with a common purpose (Article 25(3)(d) of the Rome Statute). Additionally, the issue of immunities would not be applicable as pursuant to Article 27 of the Rome Statute, the statute applies equally to all persons without any distinction based on official capacity, including former and acting heads of states or government.

In conclusion, a legal pathway to The Hague exists for the most responsible for the violence which gripped Ukraine and especially Kiev in February 2014. The decision to refer the situation might involve complex political calculations and the ICC possesses the ultimate authority whether to accept the situation. Finally, the likelihood of any practical development remains low as regards the situation as long as the potential suspects are on the territory of Russia.

Stoyan Panov is a Visiting Lecturer in Law and Ph.D. candidate in Law at the Birmingham Law School of the University of Birmingham in Birmingham, UK. He holds an LLM degree in Public International Law from Leiden University and an MA from Georgetown University.

Suggested Citation: Stoyan Panov, From Kyiv to The Hague: A Potential Involvement of the ICC in the Ukraine Situation?, JURIST – Forum, Mar. 10, 2014, http://jurist.org/forum/2014/03/stoyan-panov-ukraine-icc.php.