Could Yanukovych Be Tried at the ICC?

Ukraine’s Parliament has voted to send its discredited thug of a President Viktor Yanukovych to the International Criminal Court (ICC). After losing his grip on power and fleeing Kyiv, Yanukovych is a man on the run. But if he is arrested, Ukraine’s parliament has signalled its intention to send him and members of his coterie packing for The Hague. Ukraine may not have been on the ICC’s radar, but the Court is certainly on the minds of many in Ukraine.

Ukraine is not a member-state of the ICC. It signed the Rome Statute but failed to ratify it after the country’s Constitutional Court found that the statute was unconstitutional. Some have argued that this will prevent Ukraine from referring itself to the Court. But this is, at the very least, unclear (see here and here). Importantly, parliament is not seeking to ratify the Rome Statute but to volunteer jurisdiction over a specific period of time to the ICC. According to its official statement, Ukraine’s parliament is seeking to refer “crimes against humanity during peaceful protests in Ukraine since November 30, 2013 until February 22, 2014, particularly, Viktor Fedorovych Yanukovych – President of Ukraine – and other officials determined by the prosecutor of the International Criminal Court.”

The ICC’s Office of the Prosecutor (OTP) has not responded and reports suggest that no official request has yet been filed at the Court. Moreover, some believe that the ICC won’t or shouldn’t be interested in taking on any cases pertaining to events in the Ukraine. David Bosco, for example, has argued that it is not clear that crimes under the jurisdiction of the ICC have been committed, that the crimes under consideration likely would not meet the Court’s “gravity” threshold and that if Ukraine’s judiciary is able and willing to genuinely prosecute Yanukovych, the ICC won’t investigate.

There are clearly obstacles to ICC trial of Ukraine’s ousted President. But the picture is murky – at best. Here are a few thoughts on some of the political and legal issues swirling around a potential ICC intervention in Ukraine.

A Mixed Bag: Out of Africa and Into Europe 

As numerous commentators have suggested, an intervention in Ukraine would get the ICC out of Africa. The Court quite obviously suffers from a perception problem. Whether real or not, the ICC is widely seen as a Western tool with a bias against African states.

But proponents shouldn’t be overly enthusiastic that a potential intervention into Ukraine would mark a significant shift in this perception. Yes, it would get the ICC out of Africa (it should be noted that the Court has numerous preliminary investigations outside of the African continent). However, in going after someone widely seen as a disgraced adversary of the European Union, the Court could easily reaffirm the widespread belief that it is an institution which ultimately in the service of European interests.

Russian Into It?

It isn’t clear how Russia would react to an ICC intervention in Ukraine, especially one that targeted its ostensible ally, Yanukovych. Indeed, if the ICC were to pursue him, would Russia provide Yanukovych with safe haven or exile?

Not much is known about the Court’s relationship with Russia. It doesn’t seem that the ICC focuses much attention on the subject either. Still, there is an ongoing preliminary investigation into Russia’s 2008 war with Georgia and perhaps some tensions over Russia’s flat-out rejection of any referral of Syria to the ICC. Would the Court strike back by pursuing Yanukovych or would it prefer to tread softly when it comes to Russia?

If the Court proceeds, how it deals with Russia is crucial. Ukraine is currently in a precarious political situation and if Russia is part of the problem, it also needs to be part of the solution. This message was intimated by U.S. Secretary of State John Kerry:

This is not a zero-sum game, this is not West versus East. It is not Russia or the United States, this is about the people of Ukraine and Ukrainians making their choices about the future and we want to work with Russia and other countries, with everybody available, to make sure this is peaceful from this day forward.

Complementarity Games

While it may have its share of problems, Ukraine clearly has a functioning judiciary. And, as Bosco observes, the country “boasts a judiciary more capable of managing a domestic trial than other countries the ICC has worked in.” As a result, given the ICC’s complementarity regime, it isn’t clear whether the Court would find any prosecution of Ukrainian officials admissible. But the existence of a functioning judicial system able and willing to conduct trials doesn’t tell the whole story.

In some instances, states have agreed to send some perpetrators to The Hague while putting others on trial themselves. They are able to do so because, in the words of Darryl Robinson, complementarity is not a one-step process of determining whether a state is able or willing to conduct an investigation or prosecution but a two-step process which first requires the Court to find whether the state in question is conducting or has conducted any investigation or prosecution of a given case. There is precedence for this kind of ‘outsourcing’. The Ivory Coast shipped former President Laurent Gbagbo to face trial at the ICC while insisting that other ICC indictees, including Gbagbo’s wife Simone, be prosecuted in-country. In short, a case could be admissible at the ICC if Ukraine simply decided that it would not investigate or prosecute crimes pertaining to the recent violence in Kyiv.

“Gravity” – Weighing Down Justice

Some might argue that the alleged crimes committed in Kyiv are not of sufficient gravity for the ICC to investigate or prosecute. The problem here is that there’s no consensus on what gravity actually entails. Moreover, it is largely the discretion of the Prosecutor’s office to decide what acts are grave enough to warrant investigation and potential prosecution. As Alana Tiemessen and others have argued, gravity is a tool used by the Prosecutor to justify the selection of cases. If the OTP determines that it is in its interests to investigate and prosecute Yanukovych and other senior figures in Ukraine, then we should expect that a legal justification that the crimes are, in fact, “grave enough” will be found.

Popular Sentiment

The biggest potential stumbling block is thus not the Court’s complementarity regime or its gravity threshold. The primary obstacle may, in fact, end up being popular public opinion. It is not clear how Ukrainians feel about their former President being sent to The Hague. According to Paul Waldie of the Globe and Mail who has been reporting from Kyiv, “[m]ost folks I run into just want [Yanukovych] locked up.” Exactly where they’d like to see him locked up remains unclear.

If there is an outpouring of support for bringing Yanukovych to justice in Ukraine, then the OTP could very well decide that pursuing an investigation and potential prosecution simply isn’t worth it. As Bosco writes, if there’s a public thirst to try Yanukovych domestically, “the court will almost certainly keep its distance”.

The ICC learned its lesson the hard way in Libya. After referring the situation in Libya to the Court, states completely flip-flopped by subsequently declaring that it was ultimately up to Libya to decide where ICC indictees were to be tried. Within a few short months, support for the Court’s mandate in Libya evaporated. In response, the Prosecutor decided not to push for the cases.

There has been a precarious silence in Western capitals over Ukraine’s request to send Yanukovych to the ICC. European governments in particular are likely waiting in order to get a better sense of popular opinion in Ukraine. The Prosecutor would be wise to be careful before intervening into another situation where support for the Court’s mandate could very well be fleeting – or altogether non-existent.

A version of this piece was originally published by Justice and Conflict.