Thirty-eight governments have taken a significant step toward ensuring documentation of potential war crimes by asking the International Criminal Court (ICC) prosecutor to open an investigation in Ukraine, Human Rights Watch said today. On February 28, 2022, the ICC prosecutor, Karim Khan, signaled his intention to seek to open a formal inquiry.
On March 2, 2022, a group of ICC member countries referred the situation in Ukraine to the court’s prosecutor for investigation. Lithuania made a separate referral to the ICC prosecutor’s office on February 28. The complete list of countries is below.
“The request for an ICC investigation reflects the growing alarm among countries about the escalating atrocities and human rights crisis that has gripped Ukraine,” said Balkees Jarrah, interim international justice director at Human Rights Watch. “These governments are making clear that serious crimes will not be tolerated and that the court has an essential role to play in ensuring justice.”
Human Rights Watch and others have documented serious violations of the laws of war by Russian forces in Ukraine, including the use of cluster munitions that hit a hospital and a preschool. According to the United Nations, civilian casualties from the first days of the conflict are at 536, including 136 deaths.
The referral follows an announcement by the ICC prosecutor that he would seek to open a formal Ukraine investigation that would include scrutiny of any alleged serious crimes in the current conflict. With a referral to the court by ICC member countries, the prosecutor’s office can open an investigation without first seeking approval of a panel of the court’s judges. After receipt of the referral, Khan announced that his office would immediately proceed with a Ukraine inquiry.
Ukraine is not a member of the ICC, but it accepted the court’s jurisdiction over alleged crimes committed on its territory since November 2013, and in doing so, the obligation to cooperate with the court. In December 2020, the then-ICC prosecutor, Fatou Bensouda, concluded her preliminary examination of the situation and announced that the criteria under the ICC’s founding treaty, the Rome Statute, had been met to open an investigation. But the prosecutor’s office did not subsequently seek judicial approval to open an investigation as required by the court’s procedure, citing “operational challenges,” including limited resources and the impact of the Covid-19 pandemic.
In a recent announcement, Khan confirmed that he believed there was a basis to open an investigation, with respect to alleged crimes committed in Crimea and eastern Ukraine as well as any new alleged crimes in the current conflict. On March 2, the ICC presidency assigned the Ukraine situation to a panel of judges following a memorandum from the prosecutor indicating his intention to seek authorization to open a formal investigation. After receiving the referral, Khan notified the court’s Presidency of his plans to immediately proceed with an investigation.
Because Russia is not a member of the ICC, its authorities are not bound to cooperate with the court. However, under the court’s rules governing its jurisdiction, the ICC prosecutor has a mandate to impartially investigate allegations of crimes committed in Ukraine by all parties to the conflict, regardless of the nationality of the person allegedly responsible. Bensouda’s decision to examine whether to investigate in Ukraine precipitated Russia’s “un-signing” of the court’s treaty in 2016, a move with mostly symbolic effect.
The ICC’s jurisdiction in Ukraine covers genocide, crimes against humanity, and war crimes. Liability for these crimes is not limited to those who carry out the acts, but also those who order, assist, or are otherwise complicit in the crimes. That includes liability on the basis of command responsibility in which military and civilian officials, up to the top of the chain of command, can be held criminally responsible for crimes committed by their subordinates; when they knew or should have known that such crimes were being committed, but failed to take reasonable measures to stop them.
Given that neither Ukraine nor Russia are members of the ICC, the court does not have jurisdiction over the crime of aggression in this situation.
The ICC’s mandate relates to cases against individual alleged perpetrators while the International Court of Justice (ICJ) considers disputes between states. On February 26, Ukraine filed an application at the ICJ to initiate proceedings against Russia under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The case is “state-to-state” litigation governed by legal provisions in the UN Charter, the ICJ Statute, and the Genocide Convention. The ICJ will hold public hearings in the case between March 7 and 8 on Ukraine’s request for provisional measures.
With the Ukraine investigation, the number of open country situations under investigation before the court has risen to 17 – including an investigation into crimes committed during the 2008 war between Georgia and Russia. Other ongoing investigations relate to serious international crimes committed around the world including in Bangladesh/Myanmar, Afghanistan, and Palestine.
ICC member countries should step up to ensure the court has sufficient means and political backing to do its vital work on behalf of victims of grave abuses around the world, including in the face of any obstruction. An effective ICC backed by the strong support of the international community is needed more than ever to send the message that impunity for any serious crimes will not be tolerated, Human Rights Watch said.
The ICC prosecutor tasked his office to explore all opportunities to preserve evidence for a Ukraine investigation. Separately, the UN Human Rights Council (UNHRC) is set to vote this week during an urgent debate on the situation in Ukraine on a draft resolution that would create a commission of inquiry to document serious human rights violations, preserve evidence, and identify alleged those responsible for serious crimes.
Documentation efforts will be vital to international and domestic accountability processes, including by national judicial officials under the principle of universal jurisdiction. Governments committed to justice in Ukraine should support and bolster these initiatives, Human Rights Watch said.
“The ICC prosecutor’s decision to open an investigation sends a message to current and would-be rights abusers, no matter how powerful, that justice may one day catch up with them,” Jarrah said. “Broad support for the court’s work will be critical to the investigation’s success and help ensure that victims in Ukraine have a path to justice that they so desperately need.”
Countries that requested the investigation are:
Albania, Australia, Austria, Belgium, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, New Zealand, Norway, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.