Unfinished Business: Acceptance of International Criminal Justice in Ukraine (original) (raw)
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This paper is devoted to understanding the ICC’s role in contemporary international politics. Tt is stated that, in order to achieve one of its primary goals in fighting the impunity of those most responsible for wrongdoing, the Court shall intervene—as long as it may exercise its jurisdiction—in states where the core crimes may have occurred, but they are perceived as an area of interest of crucial players in the sphere of international relations (for example, in cases involving Iraq, Georgia and Israel). The latest example of Ukraine, both the Maidan events and the armed conflict in Donbas. Thus, this paper is divided into two main parts. The first deals with the ICC’s legal and political construction as one of the most significant transitional justice measures for post-conflict societies. The second tries to shed more light on the ongoing Ukrainian crisis, as the Ukrainian authorities perceive the Hague Tribunal is perceived as a significant element of the post-conflict architecture. The declaration accepting the ICC jurisdiction was issued just three days after the rapid transition of power in Kyiv and the escape of the former president, Viktor Yanukovych, to Russia. Nevertheless, the question remains, of why the second declaration under Article 12 (3) of the Statute, concerning crimes committed during the conflict in two separatist oblasts, was registered in Court only seven long months after its adoption by the Verkhovna Rada in February 2015.
Between Interests and Values. Ukraine’s Contingent Acceptance of International Criminal Justice
‘See you in The Hague!’ This expression is popular amongst the politically active part of the Ukrainian general public who raise their voices online. Political leaders in Ukraine, including President Poroshenko and Prime Minister Yatsenyuk, use references to ‘The Hague’ in their interviews and social media posts, as the judicial instance of last resort when describing the future of the Russian leadership, the militants in parts of the Donbas region, and those responsible for the killings during the Maidan (or Euromaidan) protests.
THE FUNDAMENTAL ROLE OF INTERNATIONAL (CRIMINAL) LAW IN THE WAR IN UKRAINE
Orbis, 2022
This article examines the most relevant decisions adopted at the international level, related to the conflict between Russia and Ukraine. It identifies possible solutions to prosecute and punish international crimes perpetrated in the country. It concludes that International (criminal) law and cooperation between states and international organizations will play a crucial role in the fight against impunity for those responsible for the worst atrocities carried out in the ongoing conflict.
Leiden Journal of International Law, 2023
Russia's full-blown invasion of Ukraine has reinvigorated the debate over international criminal law's selectivity. While many have welcomed the renewed interest in accountability for international crimes in the wake of the 'Ukraine moment', others have emphasized double standards in the enforcement of international criminal law, including a lack of accountability for Western violations and disproportionate attention to European victims. This article interrogates the master narratives about international criminal law's post-Ukraine selectivity and complicates accusations of bias by emphasizing Ukraine's liminal status in the global order and the cross-border nature of aggression as an explanatory factor for differentiated responses from states. It suggests that concerns about an invidious 'Ukraine effect' on international criminal law enforcement are less persuasive after the International Criminal Court's decade-long conflict with the African Union, and that a decentring of investigations to Eurasia should be construed not only as a moment of soul-searching but also as a welcome opportunity to rebalance the scales of justice. The article encourages international criminal law stakeholders to move beyond critique that unwittingly essentializes Eurocentric assumptions and to devise a more compelling vision of global criminal law enforcement that challenges crimes and inequalities both between and within states.
International Law After Ukraine: Introduction to the Symposium
AJIL Unbound
The Russian invasion of Ukraine has brought on unspeakable suffering. It has already injured and killed scores of people. It has displaced millions who now face an uncertain future. It raises the specter of all-out cyber war that threatens to draw other countries into the conflict. It is raging not only on the ground in Ukraine, but also on internet platforms where disinformation has spread. It tests the resilience of international partnerships and alliances. Beyond these immediate implications, the Russian attack on Ukraine also violates the prohibition on aggressive use of force, a foundational principle of the post-World War II international order. Facing these alarming prospects, many are pessimistic about what the war in Ukraine may portend for the future of international law and international relations. Surprisingly, however, some of the bleakest predictions have not yet been realized. Quite the contrary. We argue that there is a lot to be optimistic about when it comes to the...
The Effects of the Ukrainian War on the Legal System and International Order
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Russia’s invasion in Ukraine, in February 2022, marked the re-emergence of war as a social phenomenon on the European continent, but it also represented a clear signal of challenging the international order based on the UN legal system. Moreover, the continuation of this conflict, despite the measures taken by the international community, has triggered doubts regarding the system’s degree of functionality underlying the international order, in the context of new global challenges. Also, as the conflict in Ukraine prolongs, the policies of the great powers, but also that of small and medium-sized states fearful for their survival, are changing, which will obviously lead to a recalibration of the international order. Therefore, the purpose of this research focuses on establishing the degree of resilience of the current international security system and what transformative trends are identified in the international law system and in the global order in general, but also as effects of t...
The Russian Invasion of Ukraine: Navigating Aggression’s Fragmented Justice Landscape
Cambridge International Law Journal, 2022
In the early morning hours of 24 February 2022, Russia invaded Ukraine. Leaders from around the world have condemned this as an illegal act of aggression. The following day, Karim Khan, the Prosecutor of the International Criminal Court issued a statement that he has been “closely following recent developments in and around Ukraine with increasing concern.” As many know, in 2017, the ICC activated its jurisdiction over the crime of aggression. So perhaps it is worth asking, in light of this apparent act of aggression and the ICC Prosecutor’s warning, whether aggression charges could be brought against Russian president Vladimir Putin and his leadership coterie, in reference to the invasion of Ukraine. As we will explain, notwithstanding an existing Ukrainian self-referral of jurisdiction to the ICC in respect of war crimes and crimes against humanity in reference to an earlier Russian incursion, as well as the opening of an investigation, the recent invasion will not allow the ICC to expand its case to include potential charges of aggression. Nevertheless, might an aggression case against Putin and his associates be brought via universal jurisdiction in a domestic court or via the jurisdiction of a specially created ad hoc international criminal tribunal? Those questions are grappled with below as well. Gregory S. Gordon is a professor at The Chinese University of Hong Kong Faculty of Law, where he formerly served as Associate Dean and Director of the Research Postgraduates Programs. Before joining the legal academy, Professor Gordon worked as a prosecutor with the US Department of Justice and the International Criminal Tribunal for Rwanda. From May-June 2010, he represented the International League for Human Rights (the oldest human rights NGO in the US) at the ICC Kampala Review conference and offered expert advice in negotiations that resulted in amendments related to the crime of aggression and war crimes. He was at UN Headquarters representing the ILHR in December 2017 when the ICC Assembly of States Parties activated the Court’s aggression jurisdiction, and he serves on the Global Institute for the Prevention of Aggression’s Council of Advisers. Professor Gordon has published scholarly works on the aggression offense and is currently writing the biography of one of the key figures in the movement to criminalize aggression, former Nuremberg prosecutor Benjamin Ferencz. Giovanni Chiarini is currently a Visiting Researcher at the Centre for Criminal Justice and Human Rights, UCC University College (Cork, Ireland) and at the Centre for Critical Legal Studies at the University of Warwick (Coventry, England), as well as an International Fellow of the National Institute of Military Justice (Washington DC). Giovanni is an Attorney (Bar Council of Piacenza, Italy) admitted as Assistant to Counsel (Conseils Adjoints) to the International Criminal Court list, and a PhD candidate at Insubria University (Como, Italy). Former Visiting Fellow at the Université Côte d’Azur (Nice, France) and at the Institute for International Peace and Security Law at Universität zu Köln (Cologne,Germany), he has received invitations as a Visiting Scholar to the Centre for International and Global Law at the University of Edinburgh (Scotland) and to the Center for Military Law of the TTU Texas Tech University (USA).
International and Comparative Law Review
Summary This commentary discusses the decision taken by the Prosecutor of the International Criminal Court (ICC) to open an investigation into the situation in Ukraine on the basis of referrals by a number of state parties to the Rome Statute. In particular, it is interested in the prior decision that the Prosecutor had to make and actually made for that move to be procedurally possible. Indeed, the Prosecutor had to renounce to his steps towards an investigation proprio motu, i.e. on his own initiative. The most important of these steps was the request of judicial authorisation by the ICC Pre-trial Chamber. This commentary argues that for that reason, the Prosecutor’s decision was ill-advised, despite being in conformity with the Rome Statute. It argues that in that specific situation where neither Ukraine nor the Russian Federation are parties to the Rome Statute and where the Security Council has not and could not play its Rome Statute role, judicial oversight was an important – ...
Universal Jurisdiction as a Tool of Russian Aggression in Ukraine
Universal Jurisdiction as a Tool of Russian Aggression in Ukraine / B. Babin, N. Hendel, E. Pleshko // 2015, OSCE, Human Dimension Implementation Meeting. – Working session 6: Independence of the judicial system, with a particular focus on accountability and integrity of judges and prosecutors // http://www.osce.org/odihr/184526?download=true
Texas Tech Law Review, 2024
In this Article, we will explore and propose our view on the main procedural challenges of the ICC investigation into the situation of Ukraine, namely (1) the procedural issues related to the preliminary examination, which are only apparent since the preliminary examination framework itself is based on extra juridical rules; (2) the insurmountable issues related to a de facto lack of declaration of acceptance of jurisdiction and the lack of Rome Statute membership; and (3) the inherent procedural weaknesses that characterize the ICC statutory law as a whole, specifically its composition, which could negatively impact the efficiency of the entire proceeding.