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The Temptations of International Criminal Justice: Part One – Ukraine

ICCThe International Criminal Court (ICC) – to date the only permanent, multi-lateral institution created to prosecute cases of international crimes – has not had the easiest time of it. In fact, the Court has been plagued by many different accusations regarding its operations. One of the most persistent critiques it that the ICC has an anti-Africa bias.[1]

Since the entry into force of the Rome Statute – the Court’s founding document – on 1 July 2002, the ICC has opened 21 cases arising from 8 situations.[2] All of the accused are from African countries, only two of which not being from sub-Saharan Africa. Further supporting claims of an anti-Africa bias is the fact that the Office of the Prosecutor (OTP) has declined to open investigations into alleged crimes in Venezuela and Palestine – two of the few situations brought to the Court’s attention that are outside of Africa.[3] In the last weeks the Court has received, and the OTP opened preliminary examinations into, two additional referrals[4] – one referring to Iraq and the other to Ukraine.

UN Security CouncilThese two situations provide a tempting opportunity for the ICC to show that it is willing not only to take on cases outside of Africa, but also cases that involve potential allegations against government officials of the great powers – States with permanent seats on the United Nations Security Council (UNSC). Notwithstanding the need for the ICC to branch out and take on cases arising from events in locations other than Africa, and to challenge the great powers, the Court would do well to steer clear of both these situations. In the coming weeks I will write more about this subject. For now, this first post will discuss the situation in Ukraine.

The Situation in Ukraine

Recent events in Ukraine have been making international news for some time. The current round of troubles began with the street protests leading to the occupation of Maidan square by “pro-western” protestors in November of last year. The protests, at times violent, arose from the refusal of then president Yanukovych to sign an agreement with the European Union that would have led to greater ties between the regional block and Ukraine. He chose instead to pursue closer ties with Russia.[5] The protests escalated until February of this year with the overthrow of the Yanukovych government and his subsequent flight to Russia. The new regime in Kiev immediately began to have problems in the east of the country where there is a majority of ethnic Russians. These troubles have led to the annexation of Crimea by Russia and violent unrest in eastern Ukraine that has seen claims of criminal behavior by both sides.[6] While the new government in Kiev is supported by the West, Russia has supported – to an extent that is not entirely clear – separatists in the East.

Allegations have been made that the Yanukovych government illegally targeted civilians during the protests leading to his ouster in a way that amounts to the commission of international crimes. After the fall of his government, there have been allegations of crimes being committed against Russian speakers by those associated with the new regime that could in turn amount to international crimes.

This context is important in order to understand the scope of the referral by the new regime in Kiev, regardless of the veracity of either side’s claims of crimes by their opponents.

Ukraine’s Acceptance of Jurisdiction

The authorities in Kiev referred the situation in Ukraine from 21 November 2013 to 22 February 2014, covering only the period of the street protests in the capital that led to the overthrow of the Yanukovych government.[7] In effect, the authorities in Kiev have made a referral (technically an acceptance of jurisdiction pursuant to Article 12(3) of the Rome Statute) that would de facto only expose their political rivals to prosecution – a mighty tool in the continuing conflict ravaging that country. The OTP has since announced that it is conducting a preliminary evaluation of the situation.[8]

A One-Sided Referral

Kiev’s clever limitation of their referral would not be the first time that the ICC had to deal with a situation where the referring government wanted to encourage the Court to move against its opponents without risking prosecution of regime members. In the situation concerning the Lord’s Resistance Army (LRA), Uganda tried to refer only the crimes of the insurgent group and not those allegedly committed by government militias and armed forces. The OTP however decided that a referral of a situation to the ICC is ipso facto a referral of all crimes committed by either side of the conflict in question. In other words, States cannot just refer the crimes of their opponents. However, this was a case of the government trying to exclude liability arising out of contemporaneous acts to those that they were trying to refer to the Court. The situation in Uganda was an ongoing insurgency that saw attacks by the LRA and reprisals by government forces over a period of time.

The situation in Ukraine is different in at least one fundamental way. Here, the crimes allegedly committed by one side predominately occurred during the timeframe of the referral to the Court, while the crimes allegedly committed by the new government would have occurred after that time period. Kiev’s acceptance of jurisdiction poses the same dilemma as that of Uganda’s referral as to the one-sidedness of the prosecutions sought by the Court. Of course there are crucial differences, not the least of which is the fact that Uganda is a State party to the Rome Statute, so that there is no question of jurisdiction over crimes outside the scope of the referral in that case. Ukraine of course is not a State party so the ICC would lack jurisdiction outside of any acceptance thereof. In the face of this limitation the ICC should not simply mechanically proceed based on the scope of the referral by Ukraine as doing so would risk irreparable harm to the Court and the nascent permanent system of international criminal justice.[9]

Allowing the new authorities in Kiev to avoid responsibility through the use of a clever temporal limitation of their referral would undermine the message sent by the Court in the situation in Uganda – all sides are equal before the ICC and States cannot use the Court as a weapon against their political and military adversaries. It would send the wrong message about the purpose of international criminal justice if the Court (either the OTP or the chambers when they hear the issue) were to proceed with investigations and/or prosecutions based on such a limited referral or acceptance of jurisdiction. The message would be that if you are able to seize the government of a State, you could refer the crimes of your predecessors to the Court without risking prosecutions for the crimes you commit after taking power. State power as protection from prosecution, one of the central evils that international criminal justice was designed to remove.


Ukraine’s acceptance – or granting – of jurisdiction to the ICC is an attractive opportunity of the Court to show that it is not “anti-African” and to take on one of the great powers, Russia. However, while this may be true, the referral is also dangerous in that it could set a precedent on how to arrange the prosecution of political enemies before an international body thereby rendering the ICC nothing more than a pawn in the game of international Real Politick. The OTP and the Court as a whole must be careful not to allow this important institution to become anything other than an agent of justice by investigating and prosecuting crimes committed by all sides to a conflict, not just those that may have committed crimes first (or last). The failure of the ICC to successfully deal with this referral is nothing less than a mortal threat to the credibility of international criminal justice.

[1] See, e.g., http://iccforum.com/africa; http://www.gulf-times.com/opinion/189/details/367879/international-criminal-court-is-accused-of-anti-africa-bias; http://sites.thehagueuniversity.com/africans-and-hague-justice/home.

[2] Of the 30 accused before the court of committing international crimes, 8 remain at large (4 in one case alone from 2005), 3 have died before being taken into custody for trial, the charges against 4 were not confirmed, 3 have not been transferred for trial at the Court even though in custody of local authorities, the arrest of 2 was not confirmed, 1 has been acquitted, 7 are on trial or waiting for the confirmation of charges and 2 have been convicted. This is my count based on the current (17 May 2014) list on the ICC website. It may be that some names are no longer listed and my total count is therefore off. Also, I did not count those on trial for offenses against the administration of justice.

[3] See, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx.

[4] I am using the term her in a broader sense then the technical one used at the ICC. I mean simply that two new situations have been brought to the attention of the Court.

[5] In the background of this conflict are the divisions in Ukraine between ethnic Ukrainians and ethnic Russians.

[6] See, e.g., http://en.wikipedia.org/wiki/Euromaidan; http://online.wsj.com/news/articles/SB10001424052702303948104579533341029784038.

[7] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx.

[8] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx.

[9] The Court’s current problems have in no small part led to suggestions of creation another ad hoc court for South Sudan instead of referring the situation to the Court. See,


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The Raid on the Mavi Marmara – Can the ICC hear the case?

Yesterday, the Associated Press reported that the Union of Comoros (an island State in the Indian ocean between Madagascar and mainland Africa) has filed a “complaint” regarding the 2010 Israeli raid on a Turkish backed flotilla heading to Gaza with the International Criminal Court (ICC). The allegations specifically refer to the assault on the MV Mavi Marmara, a Turkish owned but Comoros flagged vessel, where nine protestors/aid-workers were killed during a confrontation with Israeli soldiers in international waters. The Prosecutor of the ICC, Mrs. Fatou Bensouda, has announced that her office will open a preliminary investigation into the events.[1]

Leaving technical issues aside (for example, States do not lodge “complaints” with the ICC but refer situations), this situation raises two very interesting questions related to the ICC: (1) does the Mavi Marmara incident fall within the jurisdiction of the ICC?; (2) would such a case be admissible? These questions are not easily answered. I will do my best here to succinctly set out the law and some preliminary conclusions.

Jurisdiction of the ICC

The first question that must be answered is whether the ICC can exercise jurisdiction over the “complaint” brought to the Court by Comoros. To figure this out we must first look to the law governing the proceedings at the ICC.

Articles 5, 12 and 13 of the Rome Statute of the International Criminal Court (Rome Statute) sets out the scope of the court’s jurisdiction. Read together, these articles permit jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression[2] where the crime took place on the territory of a State party or the perpetrator was a national of a State party. The Rome Statute also allows for jurisdiction absent these requirements where the situation was referred to the ICC by the United Nations Security Council. Importantly, the concept of territory specifically includes “the State of registration of [a] vessel or aircraft” where a crime is alleged to have taken place.

The Mavi Marmara at the time of the flotilla raid was in international waters and flagged as being from Comoros, who is a State part to the Rome Statute and therefore a part of the ICC. Article 12 of the Rome Statute clearly and unequivocally states that crimes occurring on a vessel fall within the jurisdiction of the court if the State of registration is a party to the Court. Comoros is a State party to the Rome Statute.

It appears that there is little doubt that the alleged crimes that took place on the Mavi Marmara fall within the jurisdiction of the ICC. However, just because a matter falls within the jurisdiction of the court does not mean that it will entertain the case.


The ICC is not a court that is designed to investigate all crimes of international relevance. Instead, it exists as a compliment to national justice systems and is only to prosecute cases where the national authorities have abdicated their right to do so, either through inaction, a design to shield the accused or waiver. Article 17 provides in relevant part,

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)     The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d)     The case is not of sufficient gravity to justify further action by the Court.

In essence, the existence of prior criminal process by a competent national tribunal prevents the ICC from exercising jurisdiction over a particular crime.

The ICC operates based on the active nationality principle (jurisdiction over nationals who commit crimes) and territory (jurisdiction over acts occurring within a State’s borders). These countries are Israel and Comoros, respectively. It is natural to look first to these States to inquire if there has been a previous or if there is an ongoing criminal action against the accused.

Israel conducted two different investigations into the Mavi Marmara incident, neither of which resulted in the recommendation of bringing criminal cases against those involved.[3] However, given the nature of the allegations and the long standing contentions about the legality of the Gaza blockade, the Israel action alone could be argued (and I by no means am saying that I would believe such an argument) that these investigations were designed to shield the accused and justify the military action. The investigations then would not be enough to render the situation inadmissible before the ICC as Israel would be considered “unwilling […] to carry out the investigation or prosecution ”.

Using the ICC basis of jurisdiction, this leaves the Union of Comoros, the State on whose territory the alleged crimes were committed. There is no public news of any such investigation.[4] All else being equal, an ICC investigation might make sense under these circumstances. However, there are other grounds upon which States can assert jurisdiction.

International law also permits States to assert jurisdiction over alleged crimes when the victim is a national of that State, or in some limited cases, under a universal jurisdiction theory. These cases will also serve as a bar to the ICC’s investigating and prosecuting a particular case as article 17 on refers to “State with jurisdiction” not the territorial and national States only.

The soldiers involved in the Mavi Marmara incident have been investigated in other States as well. Turkey has conducted an investigation and opened criminal cases against some of those involved.[5] South Africa has done the same.[6] Investigations in these States cannot be said as designed to shield the accused. The Prosecutor should immediately reject the “complaint” filed by Comoros as there have been national level investigations. The ICC does not exist to obtain a different result after prior process, but to take action when there has in effect been no prior process.


While the ICC would have jurisdiction over any alleged crimes falling within its mandate that occurred during the Mavi Marmara raid, those cases would be inadmissible due to prior actions at the State level.

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