Ukraine is taking key steps toward becoming a member of the International Criminal Court (ICC), a milestone in advancing global justice. This comes after years of campaigning by national and international human rights groups. The Ukrainian government should ensure that membership moves forward, while dropping a limitation in the law that risks shielding war criminals.
On August 21, 2024, Ukraine’s parliament approved a law, which was then signed by President Volodymyr Zelensky on August 24, providing for ratification of the Rome Statute, the ICC’s founding treaty. But the law invokes the use of the treaty’s article 124, which allows governments to limit the court’s jurisdiction over war crimes for seven years following ratification.
“Zelensky’s endorsement of the parliament’s will to become a full member of the ICC is a positive step in building a global system for accountability for the worst crimes,” said Liz Evenson, international justice director at Human Rights Watch. “Limitations in the law, however, risk shielding perpetrators from justice and fall short of what should be expected of a full commitment to ICC membership.”
Ukraine needs to take several more steps to join the court. The ratification law will only enter into force once the parliament passes a related bill, also submitted by President Zelensky, which addresses the implementation of the Rome Statute into Ukraine’s national legislation. Ukraine’s government will then need to formally deposit a ratification instrument with the United Nations in New York. After 60 days pass, the Rome Statute will enter into force for Ukraine on the first day of the following month.
The ratification law comes 10 years after Ukraine accepted the court’s jurisdiction, on an ad hoc basis, through two declarations. Ukraine’s earlier acceptance of jurisdiction is the basis for the court’s ongoing investigations, which have so far yielded arrest warrants against six individuals, including Russian President Vladimir Putin, on charges of war crimes and crimes against humanity.
Ukraine would become the ICC’s 125th member country, following Armenia’s ratification in 2023. It would mark another significant step forward in making the court’s treaty and reach universal, key to building out a global system to end impunity for international crimes, Human Rights Watch said. As a full member of the court, Ukraine would belong to the court’s Assembly of States Parties, being able to participate in the election of the ICC prosecutor and judges, setting the court’s budget, and engaging in efforts aimed at enhancing the court’s effective implementation of its mandate, including by bolstering state support. Ratification is also a requirement for progress in Ukraine’s accession to the European Union.
The reference to article 124 in the law raises concerns about Ukraine’s commitment to ensuring that all victims have access to justice, Human Rights Watch said. The law seeks to avoid the court’s jurisdiction for seven years concerning war crimes when these crimes are alleged to have been committed by Ukrainian nationals. Such a limitation could come about if the government submits what is known as an article 124 declaration after ratification.
Only two other ICC member countries, France and Colombia, have used this article and in both cases, the restriction has since been withdrawn or lapsed. In 2015, the ICC’s Assembly of States Parties adopted an amendment to delete article 124 from the Rome Statute, but the amendment has yet to be ratified by a sufficient number of member states to enter into force.
While the text of the bill seeks to exclude only Ukrainian nationals from the court’s jurisdiction, article 124 refers to war crimes “committed by [a state party’s] nationals or on its territory.” No other state has attempted to use article 124 in this way. The court has jurisdiction over war crimes, crimes against humanity, and genocide committed by nationals of states parties or other states accepting the court’s mandate and within their territories.
Ukraine’s attempt to shield its own nationals – while preserving the court’s jurisdiction over others – is at the very least inconsistent with the spirit of the Rome Statute which seeks to apply the rule of law equally. A selective approach to accountability reinforces growing criticism of states’ double standards toward international law and risks discrediting the system globally, Human Rights Watch said.
ICC member countries should call on Ukraine to move forward with the steps required for ratification without article 124. The European Union should insist that, in the context of Ukraine’s accession to the EU, ratification without an article 124 declaration is required. ICC member countries should also act swiftly to ratify the 2015 amendment that would permanently delete article 124 from the treaty.
Even with these limits, Ukraine’s decision to actively work toward joining the court sends a powerful signal about the importance of the ICC at a time when the court and those working with it face multiple threats and attacks, Human Rights Watch said. In 2023, Russian authorities issued arrest warrants against the court’s prosecutor and six ICC judges after the ICC issued an arrest warrant against President Putin. Russian lawmakers also enacted a law criminalizing cooperation with the ICC.
More recently, after the ICC prosecutor, Karim Khan, announced on May 20 that he was seeking arrest warrants against two senior Israeli officials and three Hamas leaders, the US House of Representatives passed a bill that would impose sanctions on court officials. Israeli Prime Minister Benjamin Netanyahu called on governments to prevent the court from issuing warrants. Ninety-four member countries of the ICC have declared their “unwavering support” for the court in the face of these threats.
Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute these grave crimes. Ensuring justice for serious violations is, in the first instance, the responsibility of the state whose nationals are implicated in the violations.
Instead of limiting the ICC’s jurisdiction, Ukraine should prioritize efforts to fully align its national legislation with the Rome Statute and international law, including by incorporating provisions to investigate and prosecute genocide, crimes against humanity and war crimes effectively before its national courts and to ensure that the country’s domestic criminal system works in complementarity with the ICC. The Ukrainian parliament should move swiftly to examine, strengthen, and pass the implementation legislation, to ensure that the ratification process moves forward.
“While this long-awaited ratification should be cause for celebration, the limitation introduced in the law send the worrying message that Ukraine wants to pick and choose who gets to see justice for serious crimes,” Evenson said. “There’s still time for Ukraine to stand for equal justice and ratify the statute without limitation.”
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