Triggering the International Criminal Court’s Jurisdiction for Alleged Crimes Committed Across Ukraine, Including in Crimea and Donbas

Abstract

In 2017, the International Criminal Court (ICC) celebrated its 15th anniversary, by which point it had heard 24 cases (all relating to African countries, 40 defendants and only nine people of African origin convicted). In extending its territorial jurisdiction practice, based on an Article 12(3) of the Rome Statute, the ICC’s Office of the Prosecutor (OTP) announced, on 25 April 2014, the opening of a preliminary examination of the situation in Ukraine, which, on 29 September 2015, based on Ukraine’s second declaration under the same article, was extended to include alleged crimes occurring after 20 February 2014. On 14 November 2016, the OTP released its Report on Preliminary Examination Activities on Ukraine, in which it concluded that it would continue with Phase 2 (subject-matter jurisdiction), as the declaration on jurisdiction made by Ukraine was open-ended. An assessment of the ICC’s jurisdiction will be a long-lasting process, statement supported by the release of the 2017 OTP Report on Preliminary Examinations which does not bring much progress, if any. If it succeeds in meeting the Phase 2 requirements, the assessment will need to undergo admissibility and interests of justice tests before the OTP decides whether or not to investigate. There are challenges to be addressed at this stage, derived from both the particular nature of the ICC and the novelty and peculiarities of Ukraine’s situation in respect of subject-matter jurisdiction, admissibility and interests of justice assessment. Such an overview of challenges forms the subject matter of this article with a view to looking for possible solutions to overcome them and until the ICC’s jurisdiction over Ukraine is triggered.