On Circulation of Ukraine in Hague court
Today the Verkhovna Rada adopted a very ambiguous resolution on the recognition of Ukraine jurisdiction of the International Criminal Court (ICC) in relation to the commission of crimes against humanity and war crimes of the Russian Federation, senior officials, which led to very serious consequences, and the mass murder of Ukrainian citizens.
On the one hand, we can only welcome that step in this direction has been made. Ratification of the Rome Statute of the International Criminal Court is an important element in implementing the Agreement on the association of Ukraine with the EU. Recognition of its jurisdiction to ratification is the clear step forward.
On the other hand, the text of the decision leaves many questions unanswered.
Resolution uses the concept of crimes committed by Russian senior officials, which led to very serious consequences, and the mass murder of Ukrainian citizens. In fact, it is designed to limit the possibility of investigating the crimes committed by these people only.
However, this gives rise to many problems.
The first Roman Statute of the ICC does not allow States to make any reservations upon ratification (Article 120 of the Statute).
Accordingly, there can be no reservations and the temporary recognition of the ICC’s jurisdiction.
The state is only entitled to determine the time that is covered by such jurisdiction. And then the ICC is conducting an investigation on their own and independently decides who lay charges.
In this situation, the International Criminal Court will face a problem, which has not had in my practice.
In this situation there are two possibilities.
1. Either the ICC to seek further clarification of such declaration to the Foreign Ministry of Ukraine, which will mean the failure of such a declaration (to the formulation in which it took the Verkhovna Rada).
Whereas this decision will not have any legal consequences, and the ICC will not begin any procedures.
2. Alternatively, the ICC will not pay attention to such restrictions in respect of persons who have committed crimes, and will return in full.
And in this case it will apply to all possible crimes, regardless of whether they were committed by “senior officials of the Russian Federation”, or any other person, for example, representatives of the Ukraine.
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Let me remind you, in the Maidan Parliament also adopted such a resolution , which recognized the ICC jurisdiction over crimes committed during the Maidan, committed only to senior officials of Ukraine, and even specifically referred to them in the presentation.
Then the ICC has ignored this restriction and opened a preliminary investigation, without limiting the range of persons who may have committed certain crimes.
It is expected that this year we will get the answer whether the ICC Prosecutor opened a full investigation into the events of the Maidan.
And if the ICC decides to initiate an investigation, it will proceed from the fact that Ukraine has made a declaration and recognized its jurisdiction without conditions, and will investigate all cases of which it becomes aware and that fit in a certain period of time the Resolution.
By the way, then the consequences of this decision will be very different than those that expect our government.
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The second problem is today’s decision of BP – a purely procedural but important. It can be said, a matter of respect to the Hague court and its objectivity on the part of Ukraine.
How is he who carries out the investigation (ie the ICC), can know in advance who committed the crime?
This is not a Ukrainian criminal justice system where criminals determined in advance and announced publicly.
It is obvious that each separate offense (within a specified period of Ukraine) has its own investigation and commit meet certain specific people, which should set a consequence.
According to the procedure of the International Criminal Court, a preliminary investigation begins after the recognition of the country of the ICC’s jurisdiction, which resulted in a full investigation can be opened. And only then formed a charge and the case is referred to court.
Obviously, it is impossible to transmit to the Court only those cases where the accused senior officials of the Russian Federation, and all the rest aside.
This is contrary to the very essence of the ICC – would otherwise its all fairly accused of the contract proceedings.
With this in mind, the consequences of the decision is quite difficult to predict.
And his decision once again shows a lack of understanding of the procedures by the authorities of the International Criminal Court.
Unfortunately, because of misunderstanding arise not only such legal confusion, as the resolution, but also introduced a lot of myths about the dangers that allegedly may arise after the ratification of the Rome Statute of the ICC.
For now, on the basis of these imaginary problems, the Ukrainian government is blocking the full ratification of the document, even ignoring the fact that it is our obligation to the EU. The president’s claim that after the ratification of the Rome Statute in The Hague will investigate actions of the Ukrainian side .
And no one even thinks, that exactly the same effects could entail the recent decision of Rada of partial recognition of the jurisdiction of the Hague Court.
Volodymyr Yavorsky, a human rights activist, member of the Board of the Ukrainian Helsinki Human Rights Union (UHHRU)
Sourse, 04/02/2015
