Resorting to the ICC in Hague to punish representatives of Viktor Yanukovych’s regime involved in gross human rights violations is problematic, at least in the nearest future, within the current political and legal framework .
So says Volodymyr Vasylenko, Doctor of Law and professor, in an article where he commented on society’s opinion about the necessity to resort to the ICC in order to stop the escalation of the human rights violations that can be seen in various regions of Ukraine since the end of November last year.
Professor reminded that the Court has the jurisdiction over the territory of the states who are the parties to the Rome Statute of the ICC.
“The jurisdiction of the Court is limited to the crimes defined in Article 7 of the Statute of the ICC, namely to murder, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, persecution against any group, enforced disappearance of persons, any other acts intentionally causing great suffering or serious injury to body,” writes Volodymyr Vasylenko.
He also informed, “Under Article 17 of the Statute, only the representatives of the top state leadership involved in the commitment of the crimes defined in the Statute are subject to the jurisdiction of the Court. However, in cases where a state is unwilling or unable to bring to justice persons who committed a crime, such persons (regardless of their status) might be subject to the jurisdiction of the ICC.”
According to the legal scholar, Ukraine has signed but not ratified the Statute of the ICC. Consequently, today the jurisdiction of the Court does not cover crimes committed on the territory of Ukraine, even if those crimes can be qualified under the Statute of the ICC as the crimes against humanity.
“As an exception, the International Criminal Court can exercise its jurisdiction over the citizens of a state that is not a party to the Statute of the ICC only in the case when the UN Security Council, acting under Chapter VII of the UN Charter, appeals to the Prosecutor of the Court requesting to initiate criminal proceedings (section “c” of Article 13 of the Statute of the ICC). Such a request should be based on the Security Council’s decision, with all five permanent members of the Security Council giving an affirmative vote. Such decisions should declare that the situation caused by the international crimes qualifies as one that threatens international peace and security or is breaching them (Article 23 – 27, 39 of the UN Charter),” mentioned Vasylenko.
Vasylenko also mentions, that “Berkut”, the special militia forces that were established in Ukraine contrary to the Constitution of Ukraine, committed acts that severely violate fundamental rights and freedoms of the citizens. After the violent suppression of peaceful protests on 30 November 2013 Berkut personnel started targeted hunting for the most active participants of the protests and for the journalists. Consequently, several persons were killed and hundreds got grave injuries. Cases of violent kidnapping take place in all Ukrainian districts. Persecution and torture of Maidan activists followed by destruction of their property is spreading, with armed gangs (known as “tityshki”) controlled by security forces being involved in these illegal actions against the citizens.
“In many cases the actions of Ukrainian government, the leadership of security forces and of their personnel may be qualified as the crimes against humanity. However, in order for the UN Security Council to intervene and to address the ICC the scale of the illegal actions must be qualified as those that threaten international peace and security,” concluded Vasylenko.
Translated by Oleksandra Kondratenko
Edited by Alya Shandra
