Ukraine: FIDH and CCL welcome ICC Prosecutor’s decision to open investigation

Press release
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Filippo Monteforte / AFP

Paris, The Hague, Kyiv, 1 March 2022 - Yesterday evening, ICC Prosecutor Karim Khan announced his decision to proceed with the opening of an investigation into crimes against humanity and war crimes committed in Ukraine since 2014. The next stage would be for the Prosecution to seek ICC judges’ approval to open an investigation—a step that is not required if a State Party to the ICC Statute refers the situation to the Court, which Lithuania has reportedly announced to be doing. FIDH and CCL welcome this important commitment towards accountability for past and ongoing international crimes, and call for ICC States Parties to fully cooperate and support the Court, including financially, in the context of this upcoming investigation into Ukraine.

“With no prospect of redress for victims at the national level, we have repeatedly called for the opening of an ICC investigation into war crimes and crimes against humanity committed since 2014, during the Euromaidan demonstrations, in Donbas and Crimea, and only a few days ago in the context of Russia’s invasion and the recent expansion of the conflict. We particularly welcome the announcement by the ICC Prosecutor that this investigation would include new international crimes committed by any party to the ongoing conflict in Ukraine,”

said Oleksandra Matvyichuk, chairwoman of CCL.

Alongside many Ukrainian non-governmental organisations (NGOs), FIDH and CCL have submitted several Rome Statute Article 15 communications to the ICC Office of the Prosecutor over the past seven years, asking the Court to open an investigation. The last two focused on war crimes and crimes against humanity committed against prisoners in detention, and on conflict-related sexual crimes committed in illegal detention facilities in eastern Ukraine. CCL and other Ukrainian human rights defenders are actively documenting ongoing crimes, including to lay the groundwork for accountability. Specifically, there have been reliable reports of attacks against civilian objects and the use of cluster munitions by Russia’s armed forces in densely populated areas of Kyiv and Kharkiv. If confirmed, these might amount to war crimes falling within the jurisdiction of the court.

“Accountability can have an important deterrent effect on the commission of crimes. Even if Russia never recognised the ICC’s legitimacy, the ICC Prosecutor’s announcing his intention to swiftly open an investigation on international crimes committed by any party to the ongoing conflict in Ukraine sends a clear message that no one is and should be above the law—especially those who bear the greatest responsibility for the international crimes committed since 2014,”

said Delphine Carlens, head of FIDH’s international justice desk.

The predecessor of Karim Khan, Fatou Bensouda, already concluded in December 2020 that there was a reasonable basis to believe that war crimes and crimes against humanity had been committed in the context of the situation in Ukraine, and that her office was ready to request authorisation to the ICC judges to open an investigation. Lack of resources and the resulting prioritisation process of the Prosecution’s workload, as well as lack of clear cooperation framework between Ukraine and the ICC, were underlined as factors contributing to this over a year long standstill. FIDH and CCL echo the ICC Prosecutor’s statement that the “importance and urgency of [the Court’s] mission is too serious to be held hostage to lack of means.”

While Ukraine has accepted the jurisdiction of the ICC for international crimes committed on its territory since February 2014 through two ad hoc declarations, it has not ratified the Rome Statute, despite active outreach and advocacy of Ukrainian and international NGOs towards national authorities. Now that the opening of an ICC investigation is imminent, FIDH and CCL consider it an opportune moment for Ukrainian authorities to fully recognise the ICC’s jurisdiction and ratify the Rome Statute.

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