Officials in Kyiv have vowed to continue pursuing
cases against Russia in the International Criminal Court despite Moscow’s
decision to end its cooperation with the Hague-based tribunal.
Ukraine will continue pressing its war crimes cases against Russia at the International Criminal Court in the Hague in 2017.
Few in the Ukrainian capital were
surprised by Russian President Vladimir Putin’s decision on Nov. 16 to withdraw
his country’s signature from the Rome Statute – the founding document that
created the court – a day after its chief prosecutor Fatou
Bensouda branded Russia the main aggressor and an occupier in the
Kremlin’s ongoing war against its southern neighbor.
Observers viewed Putin’s decision as a
knee-jerk reaction to mounting criticism of his actions in Ukraine, as well as
a growing fear in Moscow that Russia’s bloody military intervention in Syria
may open the door to the Kremlin being accused of war crimes.
“This is a purely symbolic gesture (by
Moscow)… and it says a lot about Russia’s attitude towards international
justice and institutions,” Tanya Lokshina, the Russia director of human
rights organization Human Rights Watch, said in a report published in
the London-based Guardian newspaper on Nov. 16.
“On a practical level, it will not make
much difference, but it is a statement of Russia’s direction. It shows that
Russia no longer has any intention of ratifying the treaty in the future or of
cooperating with the court,” Lokshina told the Guardian.
Ukraine filed its current ICC cases
against Russia knowing that Moscow had signed but never ratified the Rome
Statute.
Putin quickly lost his appetite for the
agreement during the 1999-2001 Second Chechen War, when Russia’s genocidal
campaign to crush Chechnya’s fledgling independence movement opened the door to
accusations that Moscow’s armed forces had committed war crimes.
“At the time when Russia signed the Rome
Statute in 2000, it wanted to be a part of the modern world,” Vladimir Frolov,
a scholar of international relations, told the New York Times. “Now, it
doesn’t.”
Ukraine’s cases
Ukraine, like Russia, has not ratified
the Rome Statute. As a signatory, the Ukrainian government has fully accepted
the ICC’s mandate, as well as its jurisdiction, to investigate alleged crimes
against humanity.
Ukraine originally filed a motion with
the ICC to investigate human rights abuses committed by the government of
ousted pro-Russian President Viktor Yanukovych during the November 2013 to
February 2014 Euromaidan Revolution.
As the level of fighting in the Donbas
intensified over in the autumn and winter of 2014-15, the Ukrainian government
filed a second motion in September 2015 requesting that the ICC continue with
its investigations into alleged cases of crimes against humanity in the Donbas
and Crimea for an open-ended period of time.
The Ukrainian government’s decision to
indefinitely extend the ICC’s mandate in the country was based on accounts from
civic activists, NGOs and journalists who witnessed forced disappearances,
illegal arrests and the execution of Ukrainian POWs since major combat
operations began nearly three years ago.
Western reporters working in the Donbas
during the early stages of the conflict reported multiple cases of random
nighttime arrests of pro-Ukrainian civilians by forces commanded by Moscow’s
main military agent in eastern Ukraine at the time, former FSB colonel Igor
Girkin.
In a March 2015 phone conversation with
Kyiv Post journalist Oleg Sukhov, the late Russian-born separatist warlord
Arseny Pavlov admitted that he committed a gross violation of international law
by personally executing more than a dozen Ukrainian prisoners of war.
Pavlov was killed – apparently
assassinated – by a bomb in the elevator of his home in Donetsk on Oct. 16,
2016.
Moral victory
Even with ICC prosecutor Bensouda’s
assessment that, “the Russian Federation has deployed members of its armed
forces with the purpose of gaining control over parts of Ukraine without the
consent of the government of Ukraine,” questions still remain as to what
Kyiv can actually expect from the court now that Russia has refused to
recognize its authority.
Moscow, which has repeatedly tried to
portray itself as an impartial bystander in what the Kremlin describes as a
civil war, quickly denounced the tribunal to the international media for
“failing to live up to the hopes of the global community” and called the ICC’s
investigative work “one-sided and inefficient.”
Russia is hoping that international
support for Ukraine will wane as the European Union continues to grapple with
the fallout of the United Kingdom’s Brexit vote and a more Kremlin-friendly
U.S. presidential administration led by Donald Trump takes office.
Trump’s closest advisors, including the
incoming National Security Advisor General Michael Flynn, have towed the
Kremlin’s line since protestors first appeared in Kyiv’s Maidan Square.
Putin has likely concluded that
Ukraine’s outstanding human rights cases would never survive the ICC’s
notoriously bureaucratic fact-checking process without robust support from
either Washington or Brussels.
Further complicating matters is the fact
the United States withdrew its own signature from the Rome Statute in 2002. The
outgoing administration of President Barack Obama has cooperated with the court
on a limited basis, but that informal support could come to an end once Trump
and his team, who are known for their disdain of international treaties,
occupies the White House in January.
Moscow is also keenly aware that the ICC
has never tried, let alone convicted, any high-ranking officials from a
major nuclear-armed power like Russia, and is unlikely ever to do so without
strong support from the U.S. government.
“Given that the ICC is a relatively
young institution, and the norms surrounding it are not firmly entrenched, the
loss of American leadership on accountability for mass atrocities could be
profoundly damaging,” said Kate Cronin-Furman, a human rights lawyer and
political scientist at the Harvard Kennedy School, in an interview with the New
York Times shortly after Moscow’s decision to withdraw from the agreement.
Seeking justice
The court is currently mired in a series
of cases involving several African nations and only recently initiated a
preliminary investigation into war crimes committed by Russia during Moscow’s
invasion of Georgia in August 2008.
None of the ICC’s shortcomings has
stopped Kyiv from pursuing its goal of bringing the perpetrators of the war in
the Donbas and the occupation of Crimea to justice.
“The MH17 catastrophe is being treated
as a military crime and as a crime against humanity,” Ukrainian Prosecutor
General Yury Lutsenko announced to the media during a visit to the Hague on
Nov. 22.
“Ukraine will insist that the ICC’s
criminal court continue to look into the case.”
Mykola Gnatovsky, an associate professor
of international law at Kyiv’s Taras Shevchenko National University, told the
Kyiv Post that the court is still the best place in which Ukraine can seek
justice.
“Even with all its deficiencies and lack
of support from a number of major powers, the ICC remains the sole permanent
body of international criminal justice that is capable of delivering guilty
verdicts where it is required,” Gnatovsky said.
“The Court is more relevant now than
ever, now that its focus has become truly global and not just concentrated on
Africa, as it has been,” he said. “Horrible crimes have been and are being
committed in many parts of the world, including in Ukraine, and the demand for
true international criminal justice is growing,” Gnatovsky added.
Ukraine will look likely move ahead by
citing the 1969 Vienna Convention on the Law of Treaties – of which Russia is a
signatory – that requires a state refrain from any act that would defeat
the purpose of an existing treaty.
The Rome Statute is meant as a bulwark
against the impunity of a government or individual when committing the most
serious crimes against international law.
Ukraine will argue that the founding
principles of the two aforementioned treaties are enough to convict the
culprits of the dozens of war crimes committed on its soil since the start of
the conflict.
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