Call for immediate ratification of the Rome Statute: ensuring justice for victims of war in Ukraine

On February 9, 2024, the Cabinet of Ministers of Ukraine, by the decree No. 133-r, approved the Action Plan for the Implementation of the European Commission’s Recommendations presented in the Report on Ukraine’s Progress in the Framework of the EU Enlargement Package 2023 (hereinafter referred to as the “Plan”).

In its 2023 Ukraine Report , the European Commission in recommendation 140 emphasises the need to work towards the ratification of the Rome Statute of the International Criminal Court (ICC) and related documents. At the same time, the Cabinet of Ministers of Ukraine in its decree No. 133 specifies the deadline for implementing this recommendation as “within one year after the termination or cancellation of the martial law”.

We, representatives of non-governmental and human rights organizations, believe such a delay to be unjustified due to the absence of any statutory obstacles to ratification in Ukraine’s legislation. For instance, the Istanbul Convention was ratified by Ukraine on 18 July 2022 when martial law had already been in full effect. Such an unjustified delay in the ratification of the Rome Statute by Ukraine poses a serious threat to ensuring accountability for the most serious international crimes committed on the territory of Ukraine since 2014 and significantly complicates the path to justice for victims of the war. Ukraine’s reservations regarding the risks of holding Ukrainian military leadership accountable through the ICC mechanism should not be a reason for delay, as ratification does not affect decisions as to the prosecution of the perpetrators of the most serious international crimes.

The International Criminal Court (ICC) has had jurisdiction over the situation in Ukraine since 2015, such jurisdiction poses no threat to the state. During the first five years, the ICC conducted a preliminary examination of the situation in Crimea and eastern Ukraine. In March 2022, as a result of the referral by 43 state parties to the Rome Statute of the ICC, an investigation of the situation in Ukraine was opened. Many States Parties, including EU countries, also made voluntary contributions to ensure that the ICC Office of the Prosecutor had the capacity to ensure a thorough and impartial investigation into the situation in Ukraine. Soon after, two arrest warrants were issued, including one for Russian President Vladimir Putin. On March 5, 2024, the ICC released information about two more arrest warrants against two Russian military commanders.

Ukraine actively cooperates with the Office of the Prosecutor of the ICC, but such cooperation without ratification could be terminated at any moment if the political landscape changes or if Ukraine finds it disadvantageous for any other reasons. Examples of such situations have been observed in the history of the ICC multiple times, including in Burundi, the Philippines, Darfur, Libya, etc. This will put the victims of war in a vulnerable position.

Furthermore, according to the principle of complementarity, those investigations that the ICC does not undertake (which is the majority) should be conducted by the state itself, but in accordance with the standards of international humanitarian and criminal law. It is critically important for Ukraine to adapt and align its criminal and procedural legislation with the standards of the Rome Statute. Ratification of the Rome Statute will be a catalyst for the necessary reforms in criminal justice in Ukraine. Otherwise, ensuring quality and impartial judicial processes and achieving justice for the victims will remain more of a political declaration and another manipulation rather than a genuine intention to ensure the effectiveness of mechanisms for accountability for grave crimes.

Ukraine has long advocated for the establishment of a special tribunal for the crime of aggression, as on the one hand there is a gap in international law regarding accountability for this crime. On the other hand, however, the Rome Statute contains a provision on the crime of aggression for which there is a possibility of prosecution of the highest level of state and military leadership albeit in a very limited format. At the Assembly of States Parties to the ICC, Germany, along with a group of other countries, stated that it was high time to adopt relevant amendments to the Rome Statute, thus making it an effective instrument for holding individuals accountable for the crime of aggression. Ukraine should play an active role in ensuring adoption of the relevant amendment as a State Party to the Rome Statute, if its leadership is truly interested in Russian top political and military officials to be held accountable for the crime of aggression. However, in order to join this process, Ukraine must ratify the Rome Statute without any further delay or excuse.

Ratification of the Rome Statute by Ukraine will finally demonstrate to the world the true intention of our country to respect the principle of rule of law for all those affected by Russian military aggression. With this step, Ukraine will secure itself a role as an active participant in building an effective architecture of justice. It will turn from a passive observer into an active creator of the justice processes its people deserve.

In response to the two arrest warrants issued by the ICC on March 5, 2024, Volodymyr Zelensky stated: “When international justice starts working, it cannot be stopped”.

We insist that these inspiring words be reinforced by actions, and the issue of ratification of the Rome Statute becomes an immediate priority for both the President and the Parliament of Ukraine, as well as for the European Commission, and that Ukraine finally joins the ICC in 2024 as a full-fledged State Party.

We urge the European Union including the European Commission, the European External Action Service, the EU member States, the European Parliament and other EU insitutions to consider that there are currently no statutory obstacles to the ratification of the Rome Statute. Since the President of Ukraine has the legislative prerogative in this case, he should submit the relevant draft law to the Verkhovna Rada for a vote without further delay. We also urge the European Commission and the EU member states to actively support this step.

Sign the statement

List of signatories:

Center for Civil Liberties

European Center for Constitutional and Human Rights

Generation for Rights Over the World (GROW)

Human Rights Center, UC Berkeley School of Law

International Partnership for Human Rights (IPHR)

No Peace Without Justice

REDRESS

Regional Center for Human Rights

Truth Hounds

Ukraine 5 AM Civil Society Coalition

Women’s Initiatives for Gender Justice