Weekly analysis for 14 – 20 August

Ratification of the Rome Statute of the ICC: An uncertain but important step

Event

On August 15, the President of Ukraine submitted to the Parliament draft law № 0285 on the ratification of the Rome Statute of the International Criminal Court (ICC) and its six amendments, as well as draft law № 11484 on amendments to the Criminal and Criminal Procedure Codes of Ukraine related to ratification of the Rome Statute of the International Criminal Court and its amendments.

The Rome Statute specifies the status of the Court, as well as the crimes within its jurisdiction, the admissibility and applicability of the law of the Court, the general principles of criminal law, the composition of the Court and the management of its affairs, the procedure for investigation, prosecution, and consideration of cases by the Court, the types of punishment and the procedure for their execution, the procedure for appeal and review of the Court’s decisions, the procedure for international cooperation, the status of the Assembly of States Parties, etc.

Amendments to the Rome Statute that are proposed for ratification include:

–amendments to Article 8 of the Statute, which define the types of war crimes related to the intentional use of: starvation of civilians; laser weapons specifically designed to cause permanent blindness to human eyesight; weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays; and weapons which use microbiological or other biological agents, or toxins;

–article 8bis “Crime of aggression”, 15bis “Exercise of jurisdiction over the crime of aggression (State referral, proprio motu)” and 15ter “Exercise of jurisdiction over the crime of aggression (Security Council referral)”. According to Art. 15bis, in particular, in respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals. That is why the process of establishing a special tribunal for the crime of Russian aggression against Ukraine was launched by the Council of Europe, and in July 2023, the International Center for the Prosecution of Crimes of Aggression against Ukraine (ICPA) was officially launched to operate as part of the Eurojust agency. 

CPLR’s expert assessment 

During the initial phase of the war (2014-2021), the Ukrainian state, unfortunately, was unable and refused to implement international humanitarian law into the Ukrainian criminal law. As such, in 2019, the development and the actual introduction of the draft Law of Ukraine “On amendments to certain legislative acts of Ukraine related to the implementation of international criminal and humanitarian law” took place at the initiative of the public, international organizations, and Ukrainian scholars (the actual implementers are identified in the reference note on the authors’ team). On December 27, 2019, the group of MPs representing various parliamentary factions and groups submitted the draft law to the Verkhovna Rada and it was registered under the №2689. On September 7, 2020, the law was adopted as a basis, followed by its adoption as a whole on May 20, 2021; and on June 7, it was sent to the President of Ukraine for signature. However, the adopted law remained unsigned.

The corresponding governmental draft law №7290 “On amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine” has also remained in the parliament since its registration on April 15, 2022. This draft law is a “twin” of the Law of May 20, 2021, and differs from it only in the conversant “novelty” on criminal responsibility for inaction of military commanders, other persons de facto acting as military commanders, and other superiors (Article 442-2), which replaced Article 31-1 “Criminal responsibility of military commanders, other individuals de facto acting as military commanders, and other superiors”. The other 200 paragraphs of the text remained virtually unchanged. That is why it was extremely difficult to believe official statements that the law of May 20, 2021 was not signed by the President because of its imperfection, and that is why a more fundamental draft law № 7290 was registered instead.

On September 8, 2022, the European Union repeatedly called on Ukraine to immediately fulfill its obligations under the Association Agreement and ratify the Rome Statute as soon as possible “in order to fully enjoy the rights of full membership in the International Criminal Court”.

Thus, there were no legal reasons for avoiding ratification; the reasons were purely political ones, and hardly comprehensible. In the public sphere, such “arguments” as irrelevance and untimeliness were mentioned. They could possibly be explained by the fact that the Rome Statute defines war crimes as not only actions that have been systematically committed by the Russian military over the past 2.5 years (intentional killing of a prisoner of war, attacks on civilians, looting of settlements, taking hostages, illegal deportation, use of poisonous gases, etc.), but also certain unrestrained response actions (for example, statements that there will be no mercy or insulting and humiliating treatment).

So, why is this ratification important? There are several reasons, in particular, the following:

1) Ukraine’s ratification of the Rome Statute, although cannot stop the Russians from committing war crimes and other crimes against international humanitarian law, can at least stop those representatives of the Russian authorities and military who are able to think ahead and realize the possibility of punishment. Thus, ratification will help to restrain particularly egregious crimes;

2) ratification of the Rome Statute is combined with the implementation of its provisions in national criminal legislation. Currently, in qualifying the relevant crimes, it is necessary to simultaneously study and consider a significant number of international legal acts in their entirety. Given the fact that a lot of provisions of these acts contradict each other (at least terminologically), it is difficult to take them all into account with accuracy. In the long run, ratification of the Rome Statute will simplify this task, as the Statute carefully systematizes and unifies all relevant violations and defines all important terms;

3) Ukraine will gain full membership in the ICC, which will mean opportunity to participate in the work of the Assembly of States Parties to the Rome Statute and to submit candidates for the election of prosecutors and judges of the Court;

4) implementation of the Rome Statute will contribute to more confident investigation of relevant crimes by national criminal justice authorities, which remain the main actors in this process. At the same time, although the ICC is an additional mechanism, its prosecutors are responsible for investigation of some of the most serious crimes committed by the Russian leadership and will ensure maximum impartiality of the investigation, which is important in the context of the subsequent transfer of cases to the ICC;

5) Ukraine will become one step closer to the ideals of the rule of law, demonstrating to the world its readiness to ensure peace and security in the world by legal means;

6) victims of war crimes will have more chances for a fair trial in their cases, compensation, and truth.

It is necessary to take note of the issues related to the enactment of the Rome Statute for Ukraine.

1. The Rome Statute is proposed to be ratified with several declarations, the need for which is recognized by the Statute itself

The first two declarations are procedural. One of them concerns subparagraph “a” of paragraph 1 of Article 87 of the Rome Statute, in which Ukraine defines the channels through which the ICC can comply with requests for cooperation. These channels are diplomatic channels, as well as the Office of the Prosecutor General and the Ministry of Justice of Ukraine, depending on the content of the request. The second statement (to clause 2 of Article 87) provides for the need to translate into Ukrainian the ICC’s request for cooperation and any of its supporting documents.

2. According to the more significant third declaration, for a period of seven (7) years after the entry into force of the Rome Statute for Ukraine, Ukraine does not accept the jurisdiction of the ICC with respect to crimes referred to in Article 8 (as amended), when the crime is allegedly committed by its citizens.

This amendment means that during this period, Ukraine intends to exercise jurisdiction over Ukrainian citizens in the event of war crimes directly referred to in Article 8 of the Rome Statute and not to transfer them to the ICC.

In this regard, it should be noted that in accordance with Articles 9 and 11 of the Law “On international treaties of Ukraine” and Article 125(2) and Article 126(2) of the Rome Statute, the Chairman of the Verkhovna Rada of Ukraine shall sign the instrument of ratification, based on the law on ratification of the Statute signed and officially promulgated by the President of Ukraine. Then the Minister of Foreign Affairs of Ukraine shall certify it with his signature and deposit it with the UN Secretary General. The Statute will enter into force for Ukraine on the first day of the month after the 60th day following the date of the deposit of the instrument of ratification by Ukraine with the UN Secretary General.

Thus, this Court will not have jurisdiction over crimes referred to in Article 8 of the Rome Statute committed by Ukrainian citizens until approximately 2032. Apparently, this is the reason behind the President’s submission to the Parliament on August 7, 2024 of the draft Law № 11469, which provides for the possibility of multiple citizenship (nationality). This law would allow to exclude foreigners performing military service under contract in the Armed Forces of Ukraine, the State Special Transport Service, and the National Guard of Ukraine from Ukraine’s obligations under the ratified Rome Statute.

3. At the same time, the Rome Statute (including Article 8, which applies to citizens of other states and stateless persons) and its relevant amendments will eventually enter into force for Ukraine on the first day of the month after the 60th day following the date of the deposit of the instrument of ratification by Ukraine with the UN Secretary-General.

4.By ratifying the Rome Statute, Ukraine, in accordance with clause 3 of Article 12 of the Rome Statute, also confirms the recognition of the ICC’s jurisdiction over crimes of genocide, crimes against humanity, and war crimes starting from November 21, 2013, and over the crime of aggression – from July 17, 2018 (the day of entry into force of the amendments adopted by the Assembly of States Parties to the Rome Statute on the crime of aggression).

As a reminder, Ukraine signed the Statute on January 20, 2000. On February 25, 2014, the Verkhovna Rada adopted the Declaration № 790-VII to the ICC on Ukraine’s recognition of the Court’s jurisdiction over crimes against humanity committed by senior officials of the state, which led to extremely grave consequences and mass murder of Ukrainian citizens during peaceful protests during November 21, 2013 to February 22, 2014. On February 4, 2015 the Parliament adopted the Resolution № 790-VII, which approved the Declaration on Ukraine’s recognition of the jurisdiction of the ICC over crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of the terrorist organizations “DPR” and “LPR”, starting from February 20, 2014 and without an end date.

5. The Law on ratification of the Rome Statute and six amendments thereto, as well as the Law on amendments to the Criminal Code and the Criminal Procedure Code of Ukraine (respectively, the CC and the CPC) related to this ratification shall enter into force simultaneously – on the day following the day of publication of the latter of these laws. Therefore, it may happen that the said amendments to the CC may enter into force earlier or later than the Rome Statute enters into force for Ukraine.

To ensure certainty in application of the law, it would be beneficial if the day of publication of the Law on amendments to the Criminal Code was synchronized with the 60th day after the date of deposit of the instrument of ratification by Ukraine with the UN Secretary General.

Main provisions and flaws of the draft Law № 11484 on amendments to the Criminal Code and the Criminal Procedure Code related to ratification of the Rome Statute and amendments thereto.

1. It is proposed to supplement the CC with a new Article 442-1 “Crimes against humanity”. It lists the forms of the relevant acts as envisioned in Article 7 “Crimes against Humanity” of the Rome Statute, while the note to this article explains the terms “attack on civilians”, “enforced disappearance”, “apartheid”, “extermination”, and “torture”.

At the same time, the definition of each of these terms does not literally coincide with their definition contained in clause 2 of article 7 of the Rome Statute (especially concerning the definition of torture), and the definitions of other terms contained in clauses 2 and 3 of article 7 of the Rome Statute (“enslavement”, “forced pregnancy”, “persecution”, “gender”) are not defined for some reason; meanwhile, a coercion to forced pregnancy rather than the forced pregnancy itself are punishable under the CC, as is persecution on the basis of sex rather than on the basis of gender.

All of this may create difficulties in applying the provisions of the new article, especially given that the ICC and other international courts have already established relevant case law that is considered binding.

2. At the same time, there are no proposals on amending article 437 of the CC, “Planning, preparation, initiation and conduct of an aggressive war”, article 438 “Violation of the laws and customs of war”, or article 442 “Genocide” and replacing them with articles entitled “Crime of aggression”, “War crimes”, “Genocide”, which will ensure the same wording as in Articles 8bis, 8, and 6 of the Rome Statute, respectively.

Firstly, this means that the crimes of aggression and genocide will have one wording under the Rome Statute and slightly different one under the CC.

Secondly, similar to the current situation, the CC will not contain a clear list of war crimes. Therefore, in order to find out whether an act is a war crime, it will be necessary to refer to the Rome Statute and its protocols, as well as to two dozen other international treaties, case law of the ICC, and special ad hoc tribunals.

This will significantly complicate the legal qualification of the relevant crimes, as well as their investigation and trial.

In addition, responsibility for war crimes will be imposed only in cases of violation of the laws and customs of war provided for in international treaties ratified by the Verkhovna Rada. In other words, in cases of violation of the customs of war not provided for by international treaties of Ukraine, responsibility will not be incurred. This contradicts the requirements of international humanitarian law.

3. It is proposed to supplement Section VI of the CC, “Complicity in a criminal offense”, with a new Article 31-1 “Criminal responsibility of military commanders, other individuals de facto acting as military commanders, and other superiors”.

Textually, Article 31-1 is not fully consistent with the provisions of the Rome Statute. It refers to Article 439 of the CC, “Use of weapons of mass destruction”, but Article 28 of the Statute (according to its official translation) does not reference cases of use of weapons of mass destruction.

Art. 31-1 refers to the failure of a commander, etc., to take “necessary and reasonable measures” (not “actions that the commander should have and could have taken”).

Finally, this article refers to situations where the commander “knew or should have known” that the relevant forces were committing or intended to commit the respective crimes or, as in the English text, “knew or owing to the circumstances at the time should have known” (but not “reliably knew or ignored such information” as in the draft law).

Yet, the main flaw of Article 31-1 is elsewhere.

Article 26 of the СС ,“Concept of сomplicity”, defines complicity as intentional joint participation of several subjects of a criminal offense in the commission of an intentional criminal offense.

However, the actions of a military commander or other superior may not constitute complicity, since he or she does not participate in the commission of the same intentional criminal offense. Art. 31-1 refers to different crimes and different forms of guilt, i.e., involvement in a criminal offense. Given the above and the fact that the basis for criminal responsibility is the commission of a specific act provided for in the Criminal Code as a crime, it would be necessary to define the liability of military commanders and other superiors as a sui generis crime – unique in nature and having its own elements. This is what the authors of the draft of the new CC of Ukraine did in Articles 11.4.6 and 11.4.7.

4. Amendments to the CPC propose to provide for the possibility of conducting a special (so-called in absentia) pre-trial investigation of crimes against humanity and transferring them to the jurisdiction of investigators of the Security Service of Ukraine.

Concerning the position of the Ministry of Internal Affairs and the National Police on the (NONE) application of the Law on administrative procedure to them

Event

On July 29, at a meeting of the working group of the relevant parliamentary committee on finalization of the draft law № 10161 for the second reading, representatives of the Ministry of Internal Affairs (MoIA) and the National Police publicly stated that the Law “On administrative procedure” (LAP) does not apply to them. The main justification for such a position was that the LAP does not extend to “the application of legislation on national security and defense”, and that the MoIA and the National Police allegedly only exercise such powers.

CPLR’s expert assessment 

The CPLR strongly opposed the above position of the MoIA and the National Police. Indeed, these bodies have also the authority to apply the legislation on national security and defense. However, the MoIA and the National Police are mostly assigned with other powers as well. In particular, to maintain public order and security, and to provide services. For example, this may include control over compliance with traffic rules and the application of administrative penalties for their violation; taking measures against offenders who drinks alcohol in public places; providing administrative services for car registration, issuing driver’s licenses or permits for firearms and transportation of dangerous goods, etc. All these powers of the MoIA and the National Police do not relate to national security and defense, and therefore these bodies required to comply with the LAP in performance of their authorities. 

It is important to mention that the Laws of Ukraine “On national security of Ukraine” and “On the National Police of Ukraine” distinguish such concepts and phenomena as “national security” and “public safety and order”, as well as “public security and order.” In particular, the national security of Ukraine is the protection of state sovereignty, territorial unity, the democratic constitutional order and other national interests of Ukraine from real and potential threats.

Thus, maintaining public safety and order (Article 1 of the Law “On the National Police of Ukraine”) and ensuring national security and defense are not identical functions. It is obvious that exceeding the speed limit by an individual driver does not pose a threat to the state sovereignty, territorial integrity and democratic constitutional order of Ukraine. But at the same time, it violates public safety and order. And the LAP definitely applies to such legal relations.

Thus, we consider the arguments of the MoIA and the National Police regarding the complete exclusion of these bodies from the scope of the LAP to be completely wrong and even dangerous. This may also be considered as an attempt to exempt from the LAP through an unfair interpretation of the provisions of the Law, and thus a violation of Ukraine’s obligations to the EU on the prevention of new exclusions.

The MoIA and the National Police should return to a constructive direction and make efforts to ensure the faithful implementations of the LAP in their daily activities. Where necessary, special legislation may establish specific procedural rules for certain categories of cases.