“Maidan” v. Yanukovych et al.: Ukraine and the ICC?

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Photo credit: Guardian

Keeping in mind the situation in the streets of Kiev this time a week ago, it is difficult to comprehend the speed of changes taking place in Ukraine over the past few days. The agreement reached last Friday between the opposition and president Yanukovych has now become largely outdated. Point number four, however, remains relevant:

“Investigation into recent acts of violence will be conducted under joint monitoring from the authorities, the opposition and the Council of Europe”

Only yesterday morning we learned that the new Ukrainian authorities issued an arrest warrant for Viktor Yanukovych for “mass murder of peacefully demonstrating citizens”. Today, the Parliament of Ukraine voted in favour of prosecuting former president Viktor Yanukovych, former interior Minister Vitali Zakharchenko and former Prosecutor-General Viktor Pshonka at the International Criminal Court. 

The question of holding to account those responsible for the excessive use of force against the protesters on Maidan square in Kiev is now one of the crucial matters for the new authorities. The ICC was mentioned as one of the possible avenues. Some in the blogosphere have debated the issue already a couple of weeks ago (see comments by Mark Kersten and Alexander J. Motyl).

The fact that Ukraine  has not yet ratified the Rome Statute is not the main obstacle in the case being brought before the ICC. Given this urge to seek justice for the atrocities committed on Maidan, a Security Council resolution requiring Russia’s approval is not necessary. Ukraine has taken the fastest possible solution and adopted a declaration (12(3) of the Rome Statute) accepting the Court’s jurisdiction over the crimes committed against Maidan protesters. However, one must keep in mind that it is not automatic that the case will be tried at the ICC. There are two obstacles. First, there is the principle of complementarity. The ICC can take up the case only in the event it finds that Ukraine is unwilling or unable to genuinely prosecute those allegedly responsible. Another issue is whether the crimes committed in relations to Maidan protests were widespread and systematic enough to fall under the ICC’s jurisdiction over crimes against humanity. Finally, the question is whether the case will satisfy the Court’s gravity threshold.

As of now, the question is whether Ukrainian judicial system today is ready to take up the challenge of investigating and prosecuting crimes against humanity by high-ranking state officials. Then, a separate question is what will be most beneficial for Ukraine. If investigations are carried out in a transparent and genuine manner, national prosecutions could bring a much more tangible and measurable impact for Ukrainians than a possible case before the ICC. It looks like to some extent Ukraine could count on international support to help achieve such a goal. Already on Friday, the Secretary General of the Council of Europe, Thorbjørn Jagland announced that the International Advisory Panel  charged with overseeing the investigation into the recent acts of violence in Ukraine will be ready to work in Ukraine as early as this week. Didier Burkhalter, the OSCE’s Chairperson in office, also confirmed the Organization’s readiness to assist Ukraine, including  in “efforts to establish facts on acts of violence and human rights violations.”

One must also keep in mind Ukraine’s obligations under the European Convention on Human Rights. Regarding those killed during the protests, Ukrainian authorities have an obligation under the Convention to carry out a thorough investigation into instances of unjustified use of force by the state authorities. In fact, there are already two applications lodged before the European Court of Human Rights resulting from the unlawful use of force by state authorities against Maidan demonstrators (Derevyanko v. Ukraine and Sirenko v. Ukraine). Both applicants claim that the authorities violated their right to life, prohibition of inhuman or degrading treatment, right to liberty and security, and freedom of assembly and association among others.

Readers might be wondering when and where Yanukovych will face the charges against him. Today it is rather certain that those responsible for the atrocities committed on Maidan will not escape accountability, whatever form or avenue it might take. While it would probably be more challenging for potential critics to question the impartiality of the actions and decisions of the ICC than those undertaken by the new Ukrainian authorities, the ICC would most likely prosecute only those on the top of the ladder (if at all) and not those who were among the infamous “titushky” ranks, snipers shooting at protesters or Berkut officers. For the full reckoning of the crimes committed in relation with the Maidan protests, the possible ICC proceedings will not suffice. On the other hand, prosecuting Yanukovych and his “regime” by domestic courts under the new authorities might have a negative impact on the efforts to reconcile politically and socially divided Ukraine.

Without questioning the need to document and prosecute violations that occurred in recent months in Ukraine, it is worth perhaps considering whether there is some space for alternative justice mechanisms such as a truth commission or lustration process. These could also play an important role in narrowing social cleavages, and in firming and furthering process of transformation in Ukraine.

This post is a variation of a short comment I posted here in Polish.

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