Ukrainian Volunteer Referral
March 3, 2014
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In a recent New York Times article, “Infighting Poses Hurdle to Formation of New Coalition in Ukraine“, the transitional government situation in Ukraine is discussed. Parliament has struggled to make decisions and to form a new coalition government. When the article was being written, the nomination process for an acting prime minister and a provisional had been delayed, simply underlining the challenges Parliament faces in regards to legislation and creating a functional government.
The article examines Parliaments decision to give the International Criminal Court jurisdiction to work on cases “related to the deadly violence by the police against antigovernment demonstrators last week”. Here the core issues of the ICC come into play once again, largely surrounding jurisdiction.
This means that prosecutors at the ICC would have to determine if crimes committed against protestors were grave enough to be considered, as in grave enough to be considered crimes against humanity. Furthermore, a more challenging element of this jurisdiction issue is proving that the Ukrainian judicial system is both unwilling and unable to handle the cases.
“The practical purpose of that vote, however, was unclear. While Ukraine can request that the court take temporary jurisdiction, it cannot request the indictment of specific individuals nor specify which crimes are involved.”
The aforementioned issues indicate that it is unlikely that the ICC will be able to operate in Ukraine at the moment, especially seeing as a Security Council referral would also be incredibly unlikely due to a Russian veto. This is made increasingly opaque when considering that Ukraine is not a member state of the Rome Statute – a volunteer referral leaves the ICC in an odd situation with a non-member state. However, the importance of the volunteer referral cannot be underscored.
Another interesting aspect of this particular case is that the ICC taking the Ukrainian case would be the first non-African case for the Court. Is it in the Court’s best interest to have the first out of Africa case be in such an unstable nation? The difficult transition that the Ukrainian administration is going through, coupled with the violence and protests indicate that operating within Ukraine would be very difficult, at least until there was some sort of coalition government in power. This is especially important due to the fact that Ukraine is not party to the Rome Statute – the coalition government in control would have to be willing to cooperate with the ICC to some degree to aid in successful prosecutions. Given that Parliament itself voted to have the ICC have temporary jurisdiction, the implication is that certain political parties are willing to cooperate with and work with the Court. In sum, the issues outlined of jurisdiction, relevance and stability all imply that Ukraine, despite its volunteer referral, is unlikely to be on the ICC’s docket any time soon.