International Criminal Court building (2016) in The Hague. (OSeveno, https://tinyurl.com/mphjvm88; CC BY-SA 4.0, https://creativecommons.org/licenses/by-sa/4.0/deed.en)
The ICC Investigates the Situation in Ukraine: Jurisdiction and Potential Implications
March 10, 2022
Against the backdrop of Russia’s invasion of Ukraine, the prosecutor for the International Criminal Court (ICC), Karim Khan, announced on Feb. 28 that his office would open an investigation into potential war crimes stemming from the conflict. In a press release, the prosecutor stated that the investigation would examine events dating back to 2014 and, “[g]iven the expansion of the conflict in recent days,” would include “any new alleged crimes” committed within the territory of Ukraine that may fall under the ICC’s jurisdiction.
Since Russia launched a full-scale invasion of Ukraine on Feb. 24, the Ukrainian government and numerous international human rights groups have expressed outrage over Russian shelling and missile strikes in densely populated areas, leading to several instances of civilian casualties. In recent days, reports have emerged that Russia is deploying area-fire munitions, such as cluster bombs—which open in the air and release submunitions over broad areas—in densely populated cities, without regard for the risks to the civilian populace. Kharkiv, Ukraine’s second most populated city, has been one target of intense Russian shelling.
Ukraine’s president Volodymyr Zelensky commented in a speech to the European Parliament, “This is not a random mistaken salvo, but a conscious extermination of people. The Russians knew what they were firing at.”
In order to understand the potential scope and implications of the ICC’s forthcoming investigation, this post reviews the extent—and limits—of the court’s jurisdiction over the conflict, as well as the concerns raised by the Ukrainian government and international organizations, and which areas of international law may apply.
The Court’s Jurisdiction in Ukraine
Neither Ukraine nor Russia is a state party to the Rome Statute—the 2002 treaty that establishes and governs the authority of the ICC. As such, neither state has the ability to refer possible crimes to the court. However, Ukraine has twice declared that it accepts the jurisdiction of the court for crimes committed within its territory. In announcing the investigation into the situation in Ukraine, the ICC prosecutor explicitly references both declarations to lend authority to the court’s jurisdiction in this case.
The latest of Ukraine’s two declarations was registered with the court in 2015 after Ukraine’s Parliament adopted a resolution distinctly accepting the ICC’s jurisdiction indefinitely from Feb. 20, 2014, onward. Simultaneously, Ukraine accused “senior officials of the Russian Federation” and associated terrorist groups of crimes against humanity and war crimes in Crimea and the eastern regions of Donetsk and Luhansk, “which led to extremely grave consequences and mass murder of Ukrainian nationals.”
Since 2014, the ICC has been conducting a preliminary examination—a common pretext to a full, official investigation—into the situation in Ukraine. In Khan’s announcement of the forthcoming investigation, he stated:
I have reviewed the Office’s conclusions arising from the preliminary examination of the Situation in Ukraine, and have confirmed that there is a reasonable basis to proceed with opening an investigation. In particular, I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination by the Office.
The prosecutor’s ability to exercise jurisdiction over Article 5 offenses—like war crimes and crimes against humanity—stems from Articles 12 and 13 of the Rome Statute. Under Article 13, there are three situations under which the ICC can exercise its jurisdiction.
The first is in situations where the alleged crimes are referred by state parties. As noted, although Ukraine is a signatory to the Rome Statute, neither Ukraine nor Russia is a party; this means that the statute is not legally binding on them, although under customary international law, Ukraine has certain limited obligations not to violate the object and purpose of the treaty. Russia withdrew its signature in 2016, essentially severing its ties to the statute. Since the prosecutor’s announcement of a preliminary investigation, as of March 2, however, 39 state parties have referred matters to the court, which would seem sufficient on its face to grant jurisdiction.
The second manner of exercising jurisdiction is by referral of the alleged crimes to the court by the U.N.
Security Council under its Chapter VII authority. This avenue is almost certainly a dead end, as Russia (and likely China) would be inclined to use their veto powers to halt any such referral. However, Article 16 of the statute provides for the “Deferral of Investigation or Prosecution” by the ICC for a period of 12 months after a request by the Security Council to that effect; such a resolution is just as unlikely due to the veto powers of the U.S., U.K. and France. In other words, from both the Russian and Western perspectives, the Security Council seems too deadlocked to play an effective role in this ICC process.
The third and final basis for jurisdiction is the prosecutor’s own prerogative. Under Article 13(c), the prosecutor may initiate an investigation proprio motu (“by one’s own motion”) under the procedures outlined under Article 15. The process to initiate the investigation begins with the aforementioned preliminary examination by the prosecutor’s office. After examining the information received—and any additional information sought from states, the U.N., or even written or oral testimony—the prosecutor must determine whether there is a “reasonable basis” to proceed with an investigation.