The “other The Hague” – the ICC and the Ukraine-Russia conflict

Questions about violations and possible war crimes comitted during the conflict become more and more vocal, and we hear more and more about the option of the “other The Hague” court – the International Criminal Court (ICC), created in 1998, in operation since 2002 (not to be confused with the International Court of Justice (ICJ), which is tasked with inter-states disputes).

As neither Ukraine nor Russia is party to the founding international treaty of the ICC, the so-called Rome Statute (though both of them have signed it after its adoption in 2000), the Court’s operation needs a specific linking element, providing jurisdiction. According to the Statute, this may be the UN Security Council referring the situation to the Court, which logically requires the consent or at least the absence from the Russian Federation – but there is no doubt about the state rather using its veto. The same way it was done a few years ago, when there was the idea to create a special tribunal to examine possible responsibility for the tragedy of the MH17 flight. In general, I am not a big fan of this possibility, as You can see from more of my earlier publications, this has not proven to be an effective way during the past years.

However, it is not needed in the current situation, as Ukraine had already accepted the jurisdiction of the ICC during 2014-2015 by unilateral declarations according to the relevant provisions of the Statute. Based on these, the Office of the Prosecutor have already been conducting preliminary examinations, leading to Russia withdrawing from the ICC in 2016, meaning the withdrawal of the signarure from the treaty, instead of concluding the ratification procedure. This means that the Court has jurisdiction over any war crimes committed on the territory of Ukraine, regardless of the nationality of the perpetrator. Based on this, the Prosecutor has already stated, that he plans to initiate investigations, possibly leading to actual charges. Needless to say, I do not expect any cooperation from the Putin-led Russian government, but at least the legal base of the ICC’s operation is clear without any resolutions from the UN Security Council.

It is worthy to mention, that there was a bit of a twist in the question related to jurisdiction, which has come to me as a surprise at the beginning. In his statement, the Prosecutor has called upon the states party to the ICC to refer the situation of Ukraine to the Court according to Article 14 of the Statute – while based on Article 15, he could have initiated investigations and then press charges proprio motu (on his own right) based on Ukraine’s abovementioned earlier declarations. As a reaction, more states party have done it quickly, but I felt a bit confused – why was this needed?

Logically, by this the Prosecutor intends to circumvene the pre-trial procedure which is needed in the case of application of Article 15 – if the Prosecutor initiates investigations proprio motu, he needs a permission from the Court. Application of Article 14, referral by states party does not require this, in that case investigations can be initiated immediately. Probably the goal is to gain time, to put pressure on Russia as soon as possible. (Interestingly, one of the main arguments of the US against the ICC from the very beginning has been built around the question of limiting the powers of the Prosecutor in the case of his/her attempts of overstepping the rules. The solution to this problem was the pre-trial procedure, which now seems to be taken care of by the Prosecutor this way…)

I have serious doubts that states party may do this. Can a state party refer a situation to the Court based on Article 14, if taht state itself does not have jurisdiction over that situation? Based on the practice so far, states have only referred to the ICC situations over their own territory, which is compatible with the principle of complementarity and general provisions of international law, the do not have any legal base to do the same with territory of an other state. Even authors of professional literature have not mentioned this possibility ever before, not even in theory. I would not be surprised at all to see this question being raised later, if the Prosecutor decides to continue its work based on these Article 14 referrals.

We will be watching.