Debunking myths about the ratification of the Rome statute

Authors:

Gyunduz Mamedov, PhD in Law, Honored Lawyer of Ukraine, Deputy Prosecutor General of Ukraine (2019-2022);

Nadiya Volkova, Director of Ukrainian Legal Advisory Group

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The process of ratifying the Rome Statute has once again sparked a wave of discussion. Given the substantial number of myths associated with it, it is worth examining the most popular counterarguments to determine whether the ratification of the Rome Statute is indeed dangerous for Ukraine.

1. Ukraine recognized the jurisdiction of the International Criminal Court (ICC) under Article 12(3) and requested the prosecution of Russia's military-political leadership. As a result, our citizens were not targeted. Will they start targeting them after ratification?
   Justice is impartial. A country that recognizes the jurisdiction of the Court—the authority to investigate the most serious international crimes committed on its territory or against its citizens—can define the timeframe and crimes it wishes the Court to investigate. However, the state cannot limit the ICC in deciding which side of the conflict to investigate. This would contradict the fundamental principle of justice. The ICC investigates the most serious crimes within a given situation, regardless of the perpetrator's nationality or affiliation with any side of the conflict. This is the foundation of the Court's objectivity.
   It is crucial to note the term "situation." The Court uses this term to emphasize its ability to analyze events broadly, rather than focusing on a specific episode, person, or side of the conflict.
   Although Ukraine specified certain individuals and sides in its declarations, this does not create rigid boundaries for the ICC, which can consider other international crimes committed since November 21, 2013. This is why the ICC issued arrest warrants against Russian high-ranking officials for the deportation of Ukrainian children and attacks on energy infrastructure.
   These rules stem from the provisions of Article 12(3) of the Rome Statute, Article 44 of the ICC Rules of Procedure and Evidence, and have been confirmed by ICC case law, particularly in the case "Prosecutor v. Laurent Gbagbo" (paragraphs 59-60).
   Regarding citizenship, let us recall the 2015 statement by the Verkhovna Rada of Ukraine on recognizing the ICC's jurisdiction. It states that Ukraine recognizes the jurisdiction of the ICC concerning crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of the terrorist organizations "DNR" and "LNR," which led to particularly serious consequences and the mass killing of Ukrainian citizens, starting from February 20, 2014, to the present. However, many of these "leaders of terrorist organizations" are Ukrainian citizens.
   Therefore, ratification does not affect what the ICC Prosecutor's Office investigates. The Court's focus has been defined since the submission of the declarations recognizing jurisdiction, and since then, we have gone through the stages of preliminary examination and a full investigation, which has been ongoing for more than two years. At various stages, the Prosecutor's Office has reported receiving information on crimes committed by both Russians and Ukrainian citizens.
   In other words, the ICC could have previously analyzed, investigated, and issued arrest warrants for our citizens, but so far, there are only six warrants against Russian citizens. In any case, ratification will not change this. The recognition of jurisdiction in the two declarations in 2014 and 2015 is the starting point for the ICC to investigate and prosecute the most serious crimes, regardless of the side of the conflict.
2. Ratification will result in the ICC demanding the extradition of our citizens, and we will be forced to comply. Is this true?
   Ratification does not affect the focus of ICC investigations or decisions regarding the extradition of individuals. The ICC Prosecutor's Office has been conducting investigations independently since 2022. Decisions on extradition requests are based on arrest warrants for specific individuals. Ratification does not change the Court's powers or influence which individuals are prosecuted by the Court. Therefore, the ICC will not begin demanding the extradition of citizens due to ratification.
   At the same time, we are already obliged to cooperate with the Court. After recognizing the ICC's jurisdiction in 2014 and 2015, we are required to cooperate with it in its activities related to the situation in Ukraine. According to Article 12(3) of the Rome Statute, a country that recognizes jurisdiction is obligated to comply with the cooperation provisions outlined in Part 9 of the Rome Statute, including those regarding the extradition of individuals.
3. The ICC could become a tool for Russia and its allies, who will demand the opening of cases against Ukrainian soldiers.
   First and foremost, it is important to note that the ICC only investigates cases where there is sufficient evidence. The Court's institutional capacity is simply not enough to cover the full scale of alleged crimes committed worldwide, particularly in Ukraine. Therefore, the Court's focus is usually on the military-political leadership.
   Furthermore, if Ukraine demonstrates that it is conducting proper investigations into its citizens who are suspected of committing the most serious international crimes, the ICC will not intervene. The Court is actually interested in states carrying out these investigations independently in accordance with the principle of complementarity (Article 17 of the Rome Statute). The Court does not take on cases being investigated or prosecuted by a state with jurisdiction over them unless that state is unwilling or unable to carry out the investigation or prosecution properly. In other words, if the national justice system is effective, the ICC will not duplicate its efforts.
4. After the ratification of the Rome Statute, Ukrainian soldiers could be prosecuted for actions on Russian territory, such as in the Kursk region.
   As mentioned earlier, the ICC investigates international crimes within a specific situation. The perpetrator's nationality or affiliation with any side of the conflict is irrelevant. Therefore, the only truly effective way to avoid ICC prosecution or prosecution by the national system is to continue implementing and adhering to international humanitarian law. Ukraine has already made significant progress in this regard and continues to do so by adopting modern standards. Additionally, the offensive in Kursk demonstrates our substantial differences from the enemy's army. Any episodic violations, if detected, should be handled by the national justice system. Thus, it is important for us to focus our efforts on building an effective justice mechanism to address the consequences of all international crimes, including the most widespread war crimes. While these are complex tasks—adhering to international humanitarian law and building an effective justice mechanism—we must undertake them to develop our state and genuinely protect those who are currently defending us.

Having advocated for Ukraine's ratification of the Rome Statute for many years, we have heard various arguments for and against it. However, even more, we have encountered a lack of understanding of how this instrument works. As a country where the most international crimes in the world are being committed, we must demonstrate responsibility in investigating them. This is a matter of justice and the interests of our citizens who have suffered from Russian aggression. Ratification of the Rome Statute is an important element of this responsibility.