Ukraine is Getting Closer to the Court that Issued the Arrest Warrant for Putin. But There’s a Catch

For the past 10 years, Ukraine has been at war, leading to the investigation of numerous international crimes committed on our territory. Finally, the President of Ukraine has submitted a bill to the Verkhovna Rada for the ratification of the Rome Statute of the International Criminal Court and the corresponding amendments to the legislation. The path to this moment has been long, challenging, and filled with myths. However, we are now on the threshold of a new stage. The fact that Ukraine is ready to make such a decision during an ongoing war is unprecedented. But even now, the situation is not entirely straightforward… Let’s explore why the ratification of the Rome Statute is important and what concerns still linger in this process.

Why Should Ukraine Ratify the Rome Statute?

Ukraine is currently facing the largest war in Europe since World War II, resulting in numerous international crimes. After World War II, humanity spent a long time searching for international legal mechanisms to hold perpetrators of the most serious crimes accountable. This journey eventually led to the birth of international criminal justice and the establishment of a special institution to investigate such crimes — the International Criminal Court (ICC). The ICC began its work over 20 years ago based on the Rome Statute, which has now been ratified by 124 countries. However, international criminal justice is still in its formative stage, and it is crucial to support this process.

Ukraine, due to Russian aggression, has found itself at the center of global attention. The crimes committed in Bucha, Mariupol, Bakhmut, Kherson, and other Ukrainian cities have left a lasting impression on all who have heard about them. The issue of bringing perpetrators of such crimes to justice, after decades of similar offenses, has become more pressing. Much hope has been placed on the ICC… Over the years, Ukraine has actively cooperated with the ICC. In 2014 and 2015, our country recognized the ICC’s jurisdiction on its territory (regarding the Maidan cases, as well as in Crimea and Donbas), and after the full-scale Russian aggression began, an investigation into the situation in Ukraine was opened following a request from 42 ICC member states. The ICC has already issued six arrest warrants for high-ranking Russian officials, including the President of the Russian Federation, on suspicion of committing war crimes and crimes against humanity. Therefore, our international partners, as well as many human rights defenders in Ukraine, had a fair question: why hasn’t Ukraine ratified the Rome Statute yet?

Who, if not us, should be the catalyst for the development of international criminal justice system, as well as the objective investigation and punishment of those responsible for international crimes committed on our territory? The demand for justice in Ukraine is enormous, and it is simply impossible to meet this demand solely through national judicial mechanisms. Currently, we have no influence on the processes within the ICC. Essentially, the ratification of the Rome Statute would give us the right to influence these processes and fully participate in them. And equally important, it would demonstrate a commitment towards justice and support for the development of international criminal justice.

By ratifying the Rome Statute, we will be able to engage in the Court's administrative and financial matters, as well as in shaping its agenda. We will comprehensively protect our interests and our right to justice by cooperating with our partners.

Why Is the Ratification Issue Being Addressed Only Now?

In fact, finding a rational answer to this question is quite difficult. It is connected to a series of myths and stereotypes that have become entrenched in public opinion. The most popular and harmful one is that the ratification of the Rome Statute would supposedly lead to the prosecution of Ukrainian military personnel. However, the ICC has actually been able to prosecute Ukrainian military personnel since late 2013, based on the declarations through which Ukraine recognized the Court's jurisdiction (under Article 12(3) of the Rome Statute). When it comes to justice, it knows no sides. But how many cases of prosecution of our military have we seen since then? None. Meanwhile, the ICC has issued six arrest warrants against Russians.

It is important to understand the peculiarities of the Court`s nature. The ICC cannot address all violations and international crimes committed over the past 10 years, as it lacks the institutional capacity to do so. Instead, it focuses on cases involving "big fish," meaning high-ranking individuals. The Armed Forces of Ukraine strive to adhere to international humanitarian law, and we do not observe systematic violations. Does this necessarily mean that there are no crimes committed? Of course not. But we can confirm that there is no system aimed at committing crimes. Isolated cases can be fully investigated by a national or hybrid justice mechanism (which, however, is yet to be established).

In other words, the ratification of the Rome Statute will not affect the prosecution of Ukrainian military personnel in any way. We must adhere to international humanitarian law to prevent such prosecutions.

Ukrainian military personnel are also aware of this. The Sociological Group “Rating” and the Ukrainian Legal Advisory Group NGO, with the support of the International Renaissance Foundation, conducted a sociological survey among military personnel to gather their opinions on various aspects of justice during the war. According to the survey, 58% of respondents believe that the ICC can investigate the most serious international crimes committed on the territory of Ukraine and prosecute Ukrainian military and political leaders without the ratification of the Rome Statute.

Moreover, questions occasionally arise regarding the constitutionality of ratifying the Rome Statute, given that in 2001, the Constitutional Court ruled it inconsistent with the Constitution of Ukraine. However, since 2019, amendments to the Constitution of Ukraine have removed any legal obstacles to the ratification of the Rome Statute.

What Are the Concerns?

Undoubtedly, the ratification of the Rome Statute is a significant and long-awaited step that will make us a full-fledged member of the international criminal justice family. However, there is a catch…

Ukraine has decided to ratify the Rome Statute with the application of Article 124, which allows a state, upon becoming a party to the Statute, to declare that for seven years after the Statute's entry into force for that state, it does not accept the Court's jurisdiction over war crimes committed by its nationals or on its territory. This provision may seem appealing from a communications standpoint. However, it's not that simple.

First, we should carefully examine the wording. Since the article mentions not only citizenship but also the territories where the crimes were committed, we must be sure that instead of solving one problem, we are not creating many new ones. Can a country "choose" the scope of the article’s application? And, accordingly, will the ICC be able to investigate war crimes committed on the territory of Ukraine? There is currently no clear answer to this question. However, a number of comments from international justice experts that have appeared since the bill was introduced suggest that the answer is, at best, ambiguous.

Utimately, all these concerns boil down to one thing — the risk of depriving victims of war crimes of their chance for justice. The war is still ongoing, and numerous crimes are being committed every day. Article 124 could not only hinder justice processes but also perpetuate impunity. If the ICC cannot investigate war crimes on Ukrainian territory, we are essentially "inviting" the Russians to commit them. This is a key challenge. Moreover, once the article comes into effect, the Court will lose jurisdiction over war crimes (whether concerning Ukrainian citizens or the state's territory as a whole), and seven years later, the ICC will no longer be able to return to these investigations.

Crucially, it will all come down to the way the Court would interpret Ukraine`s declaration. This remains an area of uncertainty, representing both opportunities and risks. Hypothetically, if it turns out that the Court interprets this article as applying not only to citizens but also to territories, we could withdraw the declaration under Article 124. While this would damage our reputation, it would at least resolve the issue. So one can hope that such a scenario is being considered.

Furthermore, there is a potential conflict between the declaration under Article 124 and our recognition of the ICC's jurisdiction over the situation in Ukraine under Article 12(3) of the Rome Statute since February 20, 2014. Therefore, the question of investigating crimes committed over the past 10 years remains open.

Secondly, the attitude of State Parties towards Article 124 is quite clear. It has always been perceived as transitional and temporary. It has been applied only twice, under completely different circumstances and for different reasons, and one state (France) rescinded this declaration after a year. The decision to remove Article 124 from the Rome Statute was made at the Assembly of State Parties in 2015, and so far, 22 countries have ratified the amendment to remove it.

Thirdly, what message are we sending to the world by ratifying the Rome Statute in this manner? Are we signaling that we have something to hide and fear justice? But that is not the case. Moreover, the majority of the military, according to the survey, support the ratification of the Rome Statute (even before discussions about Article 124). 71% (37% fully support, 34% somewhat support) of respondents are in favor of ratification. This is despite the fact that, contrary to  years of efforts by civil society, the military has not been sufficiently informed about the work of the ICC, and to this day, not everyone (46%) knows or has heard anything about the Court.

Of course, explaining the full ratification process is more challenging than communicating this amendment. However, the outcomes would also be different… The ratification process will take some time, but even now, especially considering the offensive in the Kursk region, such a decision may be perceived ambiguously by the international community. Ukraine consistently declares its commitment to protecting all those affected by the most serious crimes. Having the ICC investigations complementing domestic efforts in situations where the State cannot or is unwilling to ensure justice is definitely in line with such a commitment.

Undoubtedly, some military leaders may still be against ratification. However, the results of the recent survey show that instead of looking for a compromise such asArticle 124, we should finally overcome illusory fears and become a society that truly upholds the values of justice.

In addition to the support for ratification mentioned above, the vast majority of military personnel are ready to support the investigation of war crimes committed by Ukraine's senior military leadership in order to hold Russia's top leadership accountable. As previously mentioned, due to its mandate and resource constraints, the ICC handles only a small number of cases, primarily focusing on "top perpetrators." So do we really need Article 124, which would protect some members of the military leadership from potential prosecution while also risking denying many victims of war crimes their chance for justice?

Additionally, in the occupied territories, crimes can also be committed by individuals with Ukrainian citizenship who collaborate with the occupying authorities.

Undoubtedly, Ukraine's ratification of the Rome Statute is a victory for common sense. But we would very much like to see it prevail without any reservations.

Read this article in Ukrainian and russian.