Ukraine seeks to join International Criminal Court but ‘justice cannot be selective’ – The Irish Times

When the Ukrainian parliament recently voted to ratify the Rome Statute of the International Criminal Court (ICC), its politicians had a clear strategic path in mind: first, to become the Court’s 125th member state, but even more importantly, to finally join the European Union.

Kyiv has recognized the ICC since 2013, a year before Russia occupied the Crimean peninsula.

However, full membership of the Court is a prerequisite for joining the EU. Ukraine was officially recognized as a candidate for accession in June 2022, four months after the start of the large-scale Russian invasion.

It was not difficult to convince a Ukrainian public, desperate for Western support, to accept membership of either state. “We are taking real steps on all fronts to bring the Russian Federation to international justice,” said Ukraine's Deputy Justice Minister Iryna Mudra. “Among other things, ratification of the Rome Statute will increase victims' chances of receiving compensation for war crimes.”

An ICC prosecutor's investigation into the war was launched in 2022. Foreign Minister Dmytro Kuleba said: “Ukraine has already worked effectively to ensure accountability for all Russian atrocities committed in the course of Russian aggression.”

The International Criminal Court has issued arrest warrants for Russian officials, including President Vladimir Putin and his former defense minister Sergei Shoigu, on charges of targeting Ukrainian civilians – allegations Moscow vehemently denies.

But therein lies a jurisdictional problem that is already beginning to slow Kyiv's progress in ratifying the statute: the idea that only Russian aggression will come under the scrutiny of ICC investigators and potentially face public trial and punishment.

The reality is that the ICC will, as it has vowed, investigate without fear or favor and prosecute all suspected war criminals, no matter which side they come from. That could prove uncomfortable for many Ukrainians at home, which is perhaps not surprising given what their country has been through.

However, Ukraine has an opt-out clause under Article 124 of the Rome Statute, a so-called transitional provision that would allow Kyiv to limit the court's jurisdiction over war crimes committed by Ukrainian nationals on Ukrainian territory for seven years.

By invoking Article 124, Ukraine would effectively protect its nationals from prosecution, similar to how the United States does so by other means, notably by publicly supporting the ICC but refusing to ratify the Statute, thus preventing its nationals from being exposed to legal danger.

The problem with Article 124 is that it leads to a slippery slope of “selective justice,” say critics, including Human Rights Watch, the International Federation for Human Rights (FIDH) and Amnesty International.

In the case of Ukraine, this would mean ensuring that Russian war criminals are brought to justice, but not Ukrainians who may have committed similar wrongdoing.

“We strongly welcome Ukraine's ratification of the Rome Statute as it represents a strong affirmation of the rule of law worldwide,” says Danya Chaikel, FIDH's representative to the ICC in The Hague. “Nevertheless, we are deeply concerned that the inclusion of a declaration under Article 124 would undermine the Court's ability to fully investigate all crimes and suspects. We call on the Ukrainian authorities to ensure that all, without exception, are held criminally accountable.”

The NGOs have now jointly called on the Ukrainian government not to submit the declaration to the United Nations along with its other ratification documents. “Such a declaration contradicts the basic principles of international justice,” says Amnesty International. “The Ukrainian people are entitled to justice – but an effective justice system cannot be selective.”