Will justice be served?

Initiation of an investigation

After the Russian invasion of Ukraine, Lithuania was the first country, followed by tens of others, to request the International Criminal Court to open the investigation of Russian actions in Ukraine and classify them as war crimes, genocide, and crimes against humanity. Karim Khan, the prosecutor of the International Criminal Court, informed in March that the ICC has opened the investigation of the aforementioned accusations. A few days later, after a meeting with the US secretary of state Anthony Blinken, the Polish Minister of Foreign Affairs said that Poland will create a center for documenting the war crimes in Ukraine and that Poland counts on US cooperation in this regard. 

The legal basis of the ICC jurisdiction

The ability of the prosecutor to exercise its authority in the matter of war crimes and crimes against humanity comes from the Art. 12 and 13 of The Rome Statute of the International Criminal Court. According to Art. 13, there are three circumstances in which the ICC can execute its jurisdiction. One of them regards a situation when the allegations are made by a state party to the statute. Although Ukraine is a signatory of the Rome Statute, neither Ukraine nor Russia is a party to the statute, which means that they are not legally bound by it. Nevertheless, since the prosecutor announced the preliminary investigation, as of March 2, 39 states parties referred to the court, which would seem sufficient to grant the jurisdiction. 

Who, and what for, is to be held accountable?

A list of people who could be held accountable in this case is long. It includes, among others, Vladimir Putin and Ramzan Kadyrov. As per The Rome Statute, the responsibility lays on the persons that ordered, instigated, or contributed to the committing of international crimes. A war crime is one of the four international crimes, it violates the Geneva and Hague Conventions, i.e., rules and norms which regulate the protection of civilians and victims of war, the proportionality of the means of combat, and the use and extent of the military force.

The ICC procedure

• Activation of ICC jurisdiction 
• Pre-trial stage
• Legal case, including a court hearing 
• Court ruling

Evaluation of the effectiveness of the ICC

As of January 2022, the Prosecutor’s Office had presented 30 cases before the Court. So far, the ICC issued ten convictions and four acquittals. Such low effectiveness of the court stems from the difficulty of proving crimes like, for example, genocide, which must prove the premeditation of the aggressor. Another issue is the personal presence of the defendants in the courtroom. The accused are very rarely caught and brought before the judge. The effectiveness of the ICC largely depends on the cooperation between the states parties of The Rome Statute. 

The European Foundation of Human Rights strongly condemns the Russian military invasion of Ukraine. Belarus’ involvement in aggression against independent Ukraine also deserves condemnation. We continuously call for both countries to follow international law. We hope that the ICC resolution and international sanctions will lead to an end to unlawful military action in Ukraine.

Prepared by Marta Maciejewska within the framework of a traineeship programme of the EFHR

Translated by Maciej Nowocień within the framework of a traineeship programme of the EFHR

Sources:

1. https://www.prawo.pl/prawo/rosyjskie-zbrodnie-w-ukrainie-prokurator-mtk-zbiera-informacje,514086.html
2. https://www.gazetaprawna.pl/wiadomosci/kraj/artykuly/8377229,prokuratorzy-z-mtk-przyjechali-do-polski-duda-swiadkowie-zbrodni-w-ukrainie-sa-w-naszym-kraju.html
3. https://www.aljazeera.com/news/2022/3/7/is-putin-likely-to-face-the-icc-over-russias-actions-in-ukraine
4. https://www.lawfareblog.com/icc-investigates-situation-ukraine-jurisdiction-and-potential-implications
5. https://www.icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine
6. https://ijrcenter.org/international-criminal-law/international-criminal-court/#:~:text=Venezuela-,Status%20of%20Cases%20and%20Investigations,pending%20investigation%20is%20summarized%20below.