Zelenskyy asks the parliament to ratify the Rome Statute. There are rumors that after this, the Ukrainian military can be tried in The Hague. Is this true? No! Here we explain why

On August 15, the president submitted to the Ukrainian parliament a draft law on the ratification of the Rome Statute of the International Criminal Court (ICC). The statute itself is an international agreement, which was adopted by 92 countries in 1998. It became the basis for the creation of the ICC and clearly defined the list of crimes that the court has the right to investigate — these are war crimes, crimes against humanity, genocide and crimes of aggression. After the full-scale invasion, Ukraine is doing everything to prove Russiaʼs guilt on each of these points at the ICC. Ukraine signed the charter in 2000, but has not yet ratified it. Therefore, the presidentʼs initiative was welcomed by many Ukrainian and international lawyers. However, some military and opposition members said that the ratification would allow the Russians to prosecute the Ukrainian military through the International Criminal Court, and this is not the right time for that. In fact, this is not the case. Babel correspondent, lawyer Oksana Kovalenko explains why.

After the ratification of the statute will the Ukrainian military be tried in the International Criminal Court?

No, because the ICC has been able to do this for ten years. After all, on February 25, 2014, after the shootings on the Maidan, the Verkhovna Rada adopted a statement to the ICC, which recognized its jurisdiction over the entire territory regarding the events after November 21, 2013, that is, from the beginning of the Euromaidan. Back then, it only applied to crimes against humanity.

In February 2015, after Russia started a war against Ukraine and annexed Crimea, the parliament extended the jurisdiction of the ICC to include war crimes. Jurisdiction did not have any limitations — it covered all those who committed the most serious international crimes on the territory of Ukraine, including the Ukrainian military, higher command and high-ranking officials.

That is, after ratification, nothing will change for the Ukrainian military?

Just the opposite. Ukraine plans to ratify the statute with one condition: within seven years from the moment of ratification, the ICC will not have jurisdiction over citizens of Ukraine.

That is, it will not be possible to punish the Ukrainian military and high-ranking officials for crimes for seven years?

Again no. The ICC is not the only court for that. It investigates the crimes of citizens who are refused trial in their homeland. Ukraine is trying to comply with international humanitarian law — in particular, because of this, since 2014, the International Criminal Court has not issued a single arrest warrant for Ukrainians. If violations occur, they are dealt with by local courts, as, for example, was the case with the former Tornado volunteer unit. Its fighters were detained and accused of murder, rape and torture. In June 2015, the battalion was disbanded.

In addition, even if the International Criminal Court will not be able to prosecute the Ukrainian military within seven years, the principle of universal jurisdiction applies in a number of countries. It allows states to investigate war crimes committed anywhere and by anyone.

We lived for 24 years without ratifying the statute, why doing it now?

• This is required by the Association Agreement with the EU. If Ukraine wants to join the European Union, the statute must be ratified.
• In addition to the obligations to the ICC, which Ukraine undertook in 2014, after ratification, the country will finally receive rights. For example, it will be able to influence the selection of judges and prosecutors of the ICC, she will be able to nominate her own judge, vote on the courtʼs budget, influence changes to the Rome Statute, if they are initiated. All this will allow more effective cooperation with the International Criminal Court in investigations of Russian crimes.
• So that opponents do not accuse Ukraine of double standards. In particular, it is now demanding that other countries comply with the ICC warrants for the arrest of a number of high-ranking Russian officials, including Vladimir Putin, and has not yet ratified the statute itself.
• So that Ukrainian victims of Russian crimes could receive compensation from the special special purpose fund of the ICC. After ratification, Ukraine will be able to influence the distribution of funds of the fund.

Still, clarify — every Ukrainian military man who commits a crime can end up in the International Criminal Court?

If Ukrainian justice refuses to punish him, then purely theoretically, yes. In practice, if we are talking about the armed forces, the court deals mainly with high-ranking officials and the command — there is no time and resources to chase after ordinary military personnel in the ICC. This principle works both ways — international experts warn that the court will not be able to punish all Russian war criminals.

Translated from Ukrainian by Anton Semyzhenko.

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