Weekly analytics for 28 February — 05 March

The Government’s opinion regarding the ratification of the Rome Statute of the International Criminal Court: it will be ratified, but only after the war

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On February 9, the Cabinet of Ministers of Ukraine approved an action plan regarding implementation of recommendations of the European Commission presented in the Report on Ukraine’s Progress within the framework of 2023 EU Enlargement Package (CMU Resolution № 133-p of February 9, 2024). Among other things, clause 140 provides for “activities aimed at ratification of the Rome Statute of the International Criminal Court (ICC) and related documents”. The implementation of this measure provides for the development of a draft law on the ratification of the Rome Statute of the International Criminal Court with relevant amendments and its submission to the Cabinet of Ministers of Ukraine. At the same time, the deadline for the implementation of these measures is within one year after the termination or abolition of martial law.

CPLR’s assessment

This position of the Government is the first document in the area of state policy that answers in the affirmative to the question on the state’s position regarding the ratification of the Rome Statute of the ICC and the deadline for the implementation of this measure.

Previously, this issue was controversial and there was no clear answer to it, despite multiple calls from the professional community regarding the need for this step. This is despite the fact that, since 2014, the ratification of the Rome Statute of the ICC has been a component of Ukraine’s European integration (Articles 8 and 24 of the EU-Ukraine Association Agreement), and recent European integration documents have not abandoned this goal.

For example, on February 16, 2024, the Agreement on Security Cooperation and Long-Term Support between Ukraine and the Federal Republic of Germany (the so-called “security agreement”) was signed. Paragraph 3 of Section V reminds that Ukraine will ratify the Rome Statute of the International Criminal Court, including the amendments on the crime of aggression adopted by the Review Conference of the Rome Statute held in Kampala, Uganda, on June 11, 2010, Resolution RC/Res.6, as specified in the EU-Ukraine Association Agreement, and on Ukraine’s path towards the EU membership.

Thus, after 2 years of russia’s full-scale aggression against Ukraine, the latter remains in a unique situation for international criminal justice – Ukraine has not ratified the RS of the ICC, but has recognized its jurisdiction over the events of 2013-2014 and Russia’s armed aggression in eastern Ukraine that started in 2014. At the same time, on March 2, 2022, ICC Prosecutor Karim Khan launched an investigation into international crimes after the full-scale invasion on February 24, 2022, based on a joint request from 39 member states of the Rome Statute. According to Art. 14 of the Rome Statute of the International Criminal Court, the right to initiate an investigation by the ICC member states is not related to the scope of the ICC’s jurisdiction recognized by a state over itself. Therefore, the room of qualification for the ICC is as extremely broad and includes war crimes, crimes against humanity, and the crime of genocide (except the crime of aggression, given the complex procedure for its application due to the restrictions imposed by the Kampala Amendments). Almost a year ago, on March 17, 2023, the ICC issued arrest warrants for russia’s president and his commissioner for children’s rights in connection with the illegal deportation and transfer of Ukrainian children from the occupied territories to russia, which grossly violates the norms of international humanitarian law (constitutes a war crime).

In essence, Ukraine is currently taking advantage of the ICC’s initiative in a situation of an unprecedented number of international crimes and is delaying the ratification of the RS of ICC. Without getting into specifics, the unofficial reason is that the Ukrainian authorities have concerns about the possibility of prosecuting military commanders from the Armed Forces of Ukraine for isolated incidents of war crimes that have actually occurred. However, the Ukrainian justice system is properly addressing them, and the ICC is not interested in isolated cases, so given both the principle of complementarity and the specifics of the subjects of international crimes, such fears are far-fetched.

Given this, the Government’s position regarding postponement of the ratification of the RS of the ICC for an indefinite term – one year from the date of termination or abolition of martial law (which will happen after Ukraine’s victory in the war) seems more erroneous. After all, the delay in ratifying the RS creates a strange situation in which the importance and necessity of cooperation with the ICC is constantly asserted at the diplomatic and legal level, while Ukraine has not been in hurry to become a full-fledged member of the RS, which does not meet the goals and objectives of this international treaty and, therefore, the Court’s activities. Furthermore, Ukraine has no opportunity to delegate its judge to the ICC, to initiate any issues regarding the Court’s procedural documents, and generally has no vote in anything that happens in the International Criminal Court. In other words, on the one hand, there is an affirmative intention to become a member state of the Rome Statute, in particular in view of Ukraine’s EU integration, but on the other hand, no official position has been presented regarding the reasons for such procrastination. This does not meet the goals and objectives of the treaty and the Court’s activities and negatively affects the image of the state in the area of international criminal justice.

The Supreme Court ruled that the subject of the crime of aggression under Art. 437 of the Criminal Code of Ukraine is special, not general, as was the practice until 2022

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The Grand Chamber of the Supreme Court has defined the criteria of the subject of the crime under Article 437 of the Criminal Code of Ukraine “Planning, preparation, initiation, and waging of an aggressive war”. The actions defined in Art. 437 of the Criminal Code of Ukraine may be committed by persons who, due to their official authority or actual social position, are able to exercise effective control over, or manage political or military actions, and/or significantly influence political, military, economic, financial, informational, and other processes in their own country or abroad, and/or manage specific areas of political or military actions.

Such legal position (opinion) was expressed in the Resolution of the Grand Chamber of the Supreme Court of February 28, 2024 in the case № 415/2182/20 (proceeding № 13-15кс22).

CPLR’s assessment

The issue of the subject of crime under Article 437 of the Criminal Code of Ukraine (planning, preparation, initiation, and waging of an aggressive war) has been repeatedly discussed in professional circles. The wording of this article stipulates that the crime of aggression can be committed by a general subject – a sane person who has committed a criminal offense at the age when criminal responsibility may arise. The Criminal Code of Ukraine adopted in 2001 provides for the so-called “Nuremberg model”, which allows for the possibility of convicting a wide range of persons for the crime of aggression (for example, the prosecution against the industrial magnate IG Farben).

At the same time, international criminal law, especially Article 8bis of the Rome Statute of the International Criminal Court, which may be called the quintessence of this branch of law, contains a special subject – the crime of aggression consists in planning, preparation, initiation, or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and cale, constitutes a manifest violation of the Charter of the United Nations. In other words, the crime of aggression is the “mother of all crimes” with respect to all subsequent crimes, because it is the one that starts armed aggression and the military and political leadership of the state that started such an armed conflict, having the means and resources to do so, must be held responsible for it.

Since 2014, Ukraine has been developing a judicial practice according to which the crime of aggression was committed by any military personnel who participated in the armed conflict on the side of russia or so-called people’s republics (if they are not citizens of Ukraine). Although this practice was criticized by experts in the area of international criminal law, given the difficult situation with the qualification of the armed conflict (ATO, JFO), the courts still convicted ordinary russian combatants under Article 437 of the Criminal Code of Ukraine. Some studies counted as many as 5 different approaches in the verdicts of domestic courts regarding the qualification of the actions of the members of so-called DPR/LPR. The reasons for this diversity are the inconsistency of the official legal position of the state regarding the events in eastern Ukraine and the lack of experience of the domestic justice system in qualification of the crime of aggression. The most famous example of such judicial practice is the Aleksandrov and Yerofeev case, where russia’s citizens sentenced on April 18, 2016 to 14 years in prison for the crime of aggression and were later exchanged for a Ukrainian servicewoman Nadiya Savchenko.

Ultimately, this issue reached the Supreme Court. The case in which the legal position of the Supreme Court was formulated concerned the events of 2014, in which the convicted persons participated in russia’s armed aggression against Ukraine as part of an armed formation not provided for by law, which was directly managed and controlled by unidentified officials of the armed forces of the aggressor country. The convicted persons shelled the positions and destroyed the manpower and military equipment of the Armed Forces of Ukraine, the National Guard of Ukraine, territorial defense units, and other law enforcement agencies of Ukraine. In addition, the convicts, as part of an organized criminal group, kidnaped six people using weapons, illegally deprived them of their liberty, and engaged them in military work; violated the laws and customs of war established by international law; and illegally purchased, stored, and carried firearms and ammunition.

Following the review of the cassation appeals, the Grand Chamber of the Supreme Court partially upheld them. Therefore, the respective persons were convicted under Part 1 of Art. 438 and Part 2 of Art. 260 of the Criminal Code of Ukraine. At the same time, the Supreme Court’s Grand Chamber overturned the verdict of the court of first instance and the decision of the Court of Appeal in part of sentencing of these persons under Part 2 of Article 27, Part 2 of Article 28, and Part 2 of Article 437 of the Criminal Code of Ukraine and, based on paragraph 2 of Part 1 of Article 284 of the CPC of Ukraine, closed the criminal proceedings in this part due to the absence of a crime under Part 2 of Article 27, Part 2 of Article 28, and Part 2 of Article 437 of the Criminal Code of Ukraine.

Thus, the Supreme Court ruled that the crime of aggression (Article 437 of the Criminal Code of Ukraine) may be committed by a special subject, namely a person who 1) due to his/her official authority or actual social position is able to exercise effective control over or direct political or military actions, and/or 2) who is able to significantly influence political, military, economic, financial, informational, and other processes in his/her own state or abroad, and/or direct specific areas of political or military actions. In other words, it applies only to the military-political leadership, but not to an ordinary civilian or combatant, as was the case in previous case law.