Constitutions Ukraine

Briefing Paper 60: Ukraine and the ICC - A Constitutional Matter

The idea of international criminal justice has been highly popular in the Ukrainian political discourse. The dramatic events on Maidan, which started in November 2013, have brought the issue of Ukraine’s cooperation with the International Criminal Court to the centre of public attention.

Yet the ICC and its powers are widely misunderstood and misrepresented. The ICC does not replace the national courts even when it comes to the most serious crimes under international law falling under its jurisdiction. The main responsibility for prosecuting persons responsible for genocide, crimes against humanity, and war crimes remains with the States.

While the Constitutional Court of Ukraine back in 2001 found the Statute of the International Criminal Court incompatible with the country’s Constitution, the EU-Ukraine Association agreement contains a provision obliging Ukraine to ensure that it ratifies the Rome Statute and cooperates with the ICC. The 2001 Opinion of the Constitutional Court, no matter whether one agrees with its contents, requires relevant amendments to the Constitution before the Rome Statute could actually be ratified. While the two declarations made by Ukraine, accepting the ICC’s jurisdiction on an ad hoc basis are positive, a number of serious legal issues can only be solved if the Rome Statute is ratified by the Verkhovna Rada. The required amendments have been drafted by the Constitutional Commission of Ukraine and positively assessed by the Venice Commission. It is however worrying that the draft recently submitted by the President to the Parliament proposes a three-year delay for the entry into force of the relevant provision.

Ukraine has come a long way from the participation in the Diplomatic Conference in Rome in 1998 to the preparation of constitutional amendments enabling it to ratify the Statute of the International Criminal Court. Along this way it has encountered many complicated legal and political issues, which is not surprising in the case of a young democracy with lack of experience in international legal and constitutional matters and a turbulent present-day situation. Nevertheless, one can hope that the final ratification of the Rome Statute and its practical implementation will assist in bringing peace and justice to Ukraine and also strengthen the country as a European democracy that shares the values and principles underpinning the community of European and other like-minded nations.

This briefing paper contributes to a more informed public debate and consultations about the reform. Written by Mykola Gnatovsky, DRI’s Senior Constitutional Expert, it recounts the reform developments to date and sets out a possible way forward.

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