The Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan QC, based at the Hague, has opened an investigation into the situation in Ukraine on 2 March 2022. According to the Prosecutor, there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.
This investigation will also encompass any new alleged crimes falling within the jurisdiction of my Office that are committed by any party to the conflict on any part of the territory of Ukraine. All evidence preservation opportunities have been ordered.
Neither Ukraine nor Russia is a State Party to the Rome Statute, the founding treaty establishing the ICC that was adopted in 1998 and entered into force in 2022. 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 declarations to lend authority to the court’s jurisdiction in this case based upon these two declarations. The first declaration lodged by the Government of Ukraine accepted ICC jurisdiction with respect to alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014. The second declaration extended this time period on an open-ended basis to encompass ongoing alleged crimes committed throughout the territory of Ukraine from 20 February 2014 onwards.
It is important to note that the ratione temporis jurisdiction of the investigation into the situation in Ukraine starts from from 21 November 2013 onwards in the territory of Ukraine, thereby encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person, by any party.
So far, 39 State Parties to the Rome Statue have referred the situation to the Office of the Prosecutor. The Rome Statute is the rationae materia of the Court upon which it has been established in 1998, and entered into force in 2002. The United States, Russia, China, India are not State Parties to the Rome Statute. Therefore, these referrals further expedite matters, and allow the Office of the Prosecutor to actively and immediately proceed with independent and objective investigations without preliminary authorisation from a Pre-Trial Chamber.
What is the basis of the jurisdiction of the International Criminal Court over Ukraine?
The prosecutor’s ability to exercise jurisdiction over Article 5 crimes of the Rome Statute such as—like war crimes and crimes against humanity—stems from Article 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. Since the ICC Prosecutor’s announcement of a preliminary investigation, as of March 2, however, 39 State Parties have referred the case to the ICC, which would seem sufficient on its face to grant jurisdiction.
Which States Have Referred the Situation in Ukraine to the ICC Prosecutor?
Up until 2 March 2022, 39 State Parties referred the situation on Ukraine to the Office of the Prosecutor of the ICC. These 39 ICC States Parties: Republic of Albania, Commonwealth of Australia, Republic of Austria, Kingdom of Belgium, Republic of Bulgaria, Canada, Republic of Colombia, Republic of Costa Rica, Republic of Croatia, Republic of Cyprus, Czech Republic, Kingdom of Denmark, Republic of Estonia, Republic of Finland, Republic of France, Georgia, Federal Republic of Germany, Hellenic Republic, Hungary, Republic of Iceland, Ireland, Republic of Italy, Republic of Latvia, Principality of Liechtenstein, Republic of Lithuania, Grand Duchy of Luxembourg, Republic of Malta, New Zealand, Kingdom of Norway, Kingdom of the Netherlands, Republic of Poland, Republic of Portugal, Romania, Slovak Republic, Republic of Slovenia, Kingdom of Spain, Kingdom of Sweden, Swiss Confederation, United Kingdom of Great Britain and Northern Ireland.
The ICC Prosecutor, Karim A.A. Khan QC ensured the international community that investigations by his Office are conducted objectively and independently, with full respect for the principle of complementarity. In doing so, they will remain focused on our core objective: ensuring accountability for crimes falling within ICC jurisdiction. Furthermore, no individual in the Ukraine situation has a licence to commit crimes within the jurisdiction of the International Criminal Court.
Is there a possibility for the crime of aggression to be part of the ICC jurisdiction over Ukraine?
There is, however, an important point here. The ICC does not have the ability to investigate the crime of aggression. Unlike the more “traditional” crimes under the court’s jurisdiction, the crime of aggression was introduced to the court’s authority in 2018 by amendments to the Rome Statute, primarily to Article 15. Under Paragraph 4, the court is explicitly barred from exercising jurisdiction over crimes of aggression by the nationals of, or on the territory of, a state that is not party to the statute. This invalidates the ability to exercise jurisdiction over aggression by Russia in the territory of Ukraine. Even a proprio motu investigation of aggression requires a determination by the U.N. Security Council that an act of aggression has occurred, which would be immediately vetoed by Russia (and China). As the ICC Prosecutor, Mr Khan has acknowledged this inability in a statement released one day after Russia’s invasion: “Given that neither Ukraine nor the Russian Federation are State Parties to the Rome Statute, the Court cannot exercise jurisdiction over the crime of aggression in this situation.”
What are the Prerogatives of the ICC Prosecutor to Exercise Jurisdiction?
Another possibility would have been for jurisdiction is the Prosecutor’s own prerogative. (proprio motu) under Article 13 (c), the ICC 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. At this point, the Prosecutor can submit a request to the Pre-Trial Chamber (PTC) assigned to the case for authorization of a full investigation. The PTC must also determine whether there is a reasonable basis to proceed, as well as whether the case itself appears to fall within the court’s jurisdiction. If the PTC concludes that there is not reasonable basis, the prosecutor may continue submitting further information for the chamber’s consideration.
However, under Article 12 of the Statute, jurisdiction by the first (state party referral) and second (proprio motu investigation) options can exist only where the states in question either are parties to the statute or have accepted the court’s jurisdiction. Since neither country is a party to the statute, either the country whose nationals are accused of the crimes or the country on whose territory the crimes occurred would have to accept the court’s jurisdiction. In this case, Russia—as the state whose nationals (the “senior officials of the Russian Federation”) are accused of crimes—is unlikely to do so. The conduct in question occurred within Ukraine’s territory, so the jurisdictional prerequisite is satisfied by Ukraine’s declarations accepting ICC jurisdiction over war crimes and crimes against humanity. In light of Ukraine’s acceptance of jurisdiction, the necessary conditions for the ICC’s exercise of jurisdiction are indeed present. As a result, Khan announced on Feb. 28 the existence of a proprio motu preliminary examination and intention to refer the case to the PTC. In his statement, he announced his conclusion that a rational basis indeed exists. On March 2, the president of the ICC officially assigned a PTC to determine whether a full investigation should be opened. In combination with the new referrals from 39 state parties, these conditions ensure that there are multiple avenues for the court to exercise its jurisdiction over war crimes and crimes against humanity.
The ICC Prosecutor, Mr. Khan has asserted that his office’s investigation would encompass an expanded probe of both the preliminary inquiry and any crimes stemming from Russia’s ongoing and future invasion.
