On February 28, 2022, four days after Russia’s invasion of Ukraine, the Prosecutor of the International Criminal Court (ICC), Karim Khan, announced that his office will be conducting an investigation into atrocities committed in Ukraine. In his statement, Mr. Khan emphasized how serious his office is taking the investigation, declaring “I have already asked my team to explore all evidence preservation opportunities.” This news was received by the international community with both surprise and excitement, as it was previously unclear if the ICC could conduct such an examination in Ukraine. Considering that the Court can only exercise its powers in countries that are members (and neither Ukraine nor Russia is a member), the ICC’s decision has been deemed by some ICC enthusiasts as evidence that the Court’s scope and depth can be expanded, while others have called this decision into question.
The International Criminal Court in Ukraine
At the heart of the attention that the decision to investigate crimes in Ukraine has received is the Rome Statute– the founding document of the ICC. This statute lays out when, where, and how the ICC can carry out investigations and prosecutions. According to the statute, the ICC can only prosecute individuals for the crime of genocide, war crimes, crimes against humanity, and the crime of aggression if these atrocities were committed either in an ICC member state or by citizens of an ICC member state in the year 2002 or later.
Neither Ukraine nor Russia is a party to the Rome Statute. Consequently, the ICC cannot investigate crimes committed by Russian troops on Ukrainian soil even if these crimes were committed after 2002 (which they were) and represent the four crimes that the ICC looks into (which they do). Since they are not members of the Rome Statute, a referral from a Security Council member, or the use of the Prosecutor’s powers, would not make a difference. So how can the Court launch an investigation in Ukraine?
A Potential Loophole?
The answer lies in Article 12 of the Rome Statute, which allows non-members of the Court to accept the Court’s jurisdiction over a certain scope of crimes and span of time by issuing a declaration. Ukraine has used this article to accept the Court’s jurisdiction twice. The first time Ukraine invoked Article 12 was in 2014 when it allowed the ICC to investigate alleged violations such as abductions, detentions, beatings, and torture during the Euromaidan protests that the previous Ukrainian government was accused of committing between November 2013 and February 2014. The developments in Crimea from 2014 onwards led Ukraine to accept the ICC’s jurisdiction for a second time. This time, the government gave the ICC the authority to look into all allegations of the crimes specified in the Rome Statute with no end date.
Article 12 allows the ICC to look into alleged crimes by any individual in Ukraine, regardless of their nationality. These individuals include all Russians and, theoretically, Russia’s current president Vladimir Putin. This is significant in light of an ever-growing body of evidence on the various war crimes committed by Russian military forces in Ukraine, and an existing consensus in the international community that Putin, as the head-of-state and commander-in-chief of the military, should be indicted by the Court for his central role in the committed crimes. The urgency implied in this situation is evident in the fact that 39 state parties to the Rome Statute submitted referrals about Russia’s invasion to the Office of the Prosecutor within days of the initial announcement by Karim Khan. This number has grown to 43 states in the weeks following.
Responses and Implications
Unsurprisingly, Russia rejected the ICC’s jurisdiction and will likely refuse to cooperate with the ICC. As significant as the ICC’s decision to investigate the situation is, the question of whether the investigation will bring peace or further deepen tensions looms large. On the one hand, the visibility of the crimes will likely draw international pressure to effectively prosecute perpetrators and prevent further atrocities, even if for political purposes. The Office of the Prosecutor already has an investigation team on the ground, meaning that perpetrators on all sides of the conflict might think twice.
On the other hand, the Court has repeatedly been criticized for its cautious approach and being “ineffective.” Evidence of to what extent and how, if at all, international investigations and prosecutions have an effect on furthering justice and peace is scarce and unclear. The Court is also completely dependent on states’ cooperation to arrest and transfer defendants and ensure that proceedings are carried out successfully. Given Putin’s rejection of the Court’s jurisdiction and repeated declarations that the option of pursuing peace in a systematic and sustainable manner is not on the table, the prospects of a fruitful and effective investigation appear bleak.
A Biased Institution
Interestingly, officials from the United States – a country that has repeatedly criticized the ICC for being interventionist and violating states’ sovereignty– have also extended support for the investigation. A group of US senators recently sponsored a resolution encouraging the investigation in Ukraine. The Biden administration has also begun a review of its position towards the ICC to see if it can provide material support for the investigation. The support extended by US officials is both commendable and hypocritical. While it is important to address the atrocities in Ukraine, the stance of the US has not been forthcoming, and often outright oppositional, in other contexts, especially those involving crimes committed by American troops in Afghanistan and Iraq.
The priority and expediency with which the Prosecutor’s office has moved to look into the conflict in Ukraine stand in striking contrast to its stance on countries in the Global South, like Afghanistan. In 2021, Karim Khan’s announced that the Court would deprioritize investigating the crimes committed by US forces in Afghanistan. This invites further suspicion over the Court’s impartiality and furthers the argument made by critics that the Court ignores demands for justice unless it is in the interests of dominant, Western powers to pursue it.
An Investigation is Better Than No Investigation
This does not mean that the investigation in Ukraine, its motivations, and potential implications should be ruled out in their entirety or be viewed in defeatist terms. The investigation will serve as a crucial test of the Court’s ability to effectively investigate and prosecute crimes given its shaky track record. Moreover, some observers have stated that the increased financial and technical support given to the Court in response to the investigation in Ukraine may provide indirect support for investigations in other contexts. There is also the fact that the ICC is the only international body to endeavor to address decades, if not centuries, of calls to end impunity for the most heinous human rights violations.
The citizens of Ukraine have made their demands for peace, justice, and accountability loud and clear. As Mr. Khan mentions in his interview with CNN, “ if we try, maybe we can move the dial on accountability in a way that is positive and meaningful.” At the very least, then, the existence of an investigation is better than the lack of one.
Edited by Beth Samson