With State Party referrals, ICC Prosecutor opens an investigation into the Ukraine situation

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Coalition for the ICC

On 2 March 2022, International Criminal Court (ICC) Prosecutor Karim Khan announced the opening of an investigation into the situation in Ukraine. This followed a series of fast-paced developments the preceding week. 

On 28 February 2022, Khan announced his intention to open an investigation into the situation in Ukraine, affirming that “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” The Prosecutor indicated that this conclusion concerns the events assessed by the Office of the Prosecutor since 2013 during the preliminary examination (concluded by the Office in December 2020), and any new alleged crimes falling within the jurisdiction of the Court committed by any party on the territory of Ukraine in the context of the recently expanded conflict.

While Ukraine is not a state party to the Statute, it has accepted the jurisdiction of the Court over alleged crimes committed on its territory from November 2013 onward.

Between 1 and 11 March, 41 ICC states parties referred the Ukraine situation to the ICC Prosecutor thus allowing Khan to initiate the investigation without the need to seek authorization by the ICC judges. On 1 March, one referral was submitted by Lithuania and another referral was submitted jointly by 38 States Parties (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,  Luxembourg, Malta, New Zealand, Norway, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.) On 7 March, the Republic of North Macedonia associated itself to the joint referral initiative. On 11 March, the ICC Prosecutor announced that Japan also referred the situation in Ukraine to his office. 



“Impunity for serious international crimes only fuels cycles of further abuses and violations,” said Melinda Reed, acting convenor of the Coalition for the International Criminal Court. “The Coalition for the International Criminal Court expresses its solidarity with member organizations and human rights defenders in Ukraine and across the region who have pressed their governments and international actors, including the International Criminal Court, to deliver justice.”

Read on for what our member organizations are saying about the opening of the investigation: 

“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 the Center for Civil Liberties.

“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 the International Federation for Human Rights international justice desk.

 “The opening of the investigation provides a powerful impetus to hold the perpetrators of the most serious crimes committed in the context of the conflict since 2014. … We have been advocating and waiting for this decision for a long time.“ said Nadia Volkova, director of the Ukrainian Legal Advisory Group. “In order to effectively investigate and cooperate fully with the ICC, the Rome Statute must be ratified immediately. We call on Ukrainian authorities to take all necessary measures as soon as possible, as well as to sign Bill #2689 to bring Ukrainian legislation in line with international humanitarian law.”

Listen here to Nadia Volkova, director of the ULAG on the Asymmetrical Haircuts podcast “Ukraine: All Roads Lead to the Hague”: "We hope that the ICC  will keep up the pace with the investigation. Ukrainian NGOs are working in a coalition to bring as much evidence in compliance with international standards." 

Several NGOs reiterated the call to the president of Ukraine and Ukrainian parliament to ratify the Rome Statute of the International Criminal Court without delay: “As of today, we do not see any logical reason for Ukraine to not ratify the Rome Statute and believe the Verkhovna Rada of Ukraine must ratify it immediately. It will provide a clear signal to everyone that all international crimes in Ukraine will be investigated and people responsible for them prosecuted sooner or later. We urge the President of Ukraine to finally sign the Law of Ukraine “On Amendments to Some Legislative Acts of Ukraine on the Implementation of International Criminal and Humanitarian Legal Provisions” (Bill No. 2689), passed by the Verkhovna Rada of Ukraine back in May 2021. As of now, the Criminal Code of Ukraine does not define a list of international crimes, which are being committed by the representatives of the Russian Federation which will create substantial obstacles in holding the responsible people accountable. There is a need to transform declarations into actions to hold those who commit international crimes in Ukraine accountable.”

“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,” said Balkees Jarrah, interim international justice director at Human Rights Watch. “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.”

“Amnesty International calls on all states parties to the ICC and the international community at large to cooperate with the ICC’s investigation. The ICC’s investigation cannot take place alone. Comprehensive accountability in Ukraine requires the concerted and innovative efforts of the UN and its organs, as well as initiatives at the national-level pursuant to the principle of universal jurisdiction,” said Agnes Callamard, secretary general of Amnesty International. “At this early stage, the collection and preservation of evidence is crucial to successful future investigations. Above all, we must ensure that the tragically increasing number of victims of war crimes in Ukraine hear a message that the international community is already determined to secure redress for their suffering.”

“With yesterday's unprecedented referrals, the path cleared for Prosecutor Khan to open an investigation immediately, which he has now done. More importantly, besides the practical implications of a now active investigation in Ukraine, the referrals demonstrate a firm stand in support of Ukraine. Further, it provides an important reminder to President Putin in particular that the laws of war apply across the territory of Ukraine and that he can personally be held accountable for violations of those laws by Russian forces,” said No Peace Without Justice.

“Deliberately bombarding many media installations such as television antennae constitutes a war crime and demonstrates the scale of the offensive launched by Putin against the right to news and information,” said Reporters Without Borders secretary-general Christophe Deloire. “These crimes are all the more serious for clearly being part of a plan, part of a policy, and for being carried out on a large scale. We call on the International Criminal Court’s prosecutor to put crimes against media and journalists at the heart of the investigation he opened on 28 February.”

“We call on the States Parties to the Rome Statute to provide effective support, including additional resources, to the ICC Prosecutor for the implementation of his statutory mandate, starting with the investigation into crimes in Ukraine allegedly committed by leaders of the Russia Federation and the Republic of Belarus.” said European Law Students’ Association (ELSA) and ELSA ALUMNI.

"This case should prompt the United States to finally set aside its idiosyncratic view about the ICC’s jurisdiction – a view that otherwise will prevent it from embracing the court’s work in Ukraine," said Adam Keith, director for accountability at Human Rights First.

IBA executive director, Dr Mark Ellis said: President Putin may see himself as untouchable. However, he cannot escape justice. Under international law, there is no impunity nor statute of limitations for the types of atrocities being committed in Ukraine.”



Ukraine signed the Rome Statute in 2000, but has yet to ratify it. Ukraine amended its Constitution in 2016 paving the way for the country, as of 30 June 2019, to join the Rome Statute thereby removing all legal obstacles to Ukraine's ratification of the ICC treaty. It made the same commitment in the European Union-Ukraine Association Agreement. However, no further concrete steps toward ratification have been taken since.

For several years, the Coalition for the ICC and its member organizations have urged Ukraine to fully align its domestic legislation with the ICC Rome Statute, including passing laws that will enable it to investigate and prosecute those suspected of committing serious international crimes.

The ICC Office of the Prosecutor conducted a preliminary examination of the situation in Ukraine between April 2014 and December 2020, focusing on alleged crimes committed on the territory of Ukraine from 21 November 2013 onwards. On 17 April 2014, the government of Ukraine lodged a declaration under article 12(3) of the Rome Statute accepting the ICC's jurisdiction over alleged crimes committed on its territory from 21 November 2013 to 22 February 2014, leading to the opening of the preliminary examination. On 8 September 2015, the government of Ukraine lodged a second declaration under article 12(3) of the Statute accepting the ICC's jurisdiction in relation to alleged crimes committed on its territory from 20 February 2014 onwards, with no end date. 

On 29 September 2015, the Prosecutor announced the extension of the temporal scope of the existing preliminary examination to include alleged crimes committed after 20 February 2014. 

Ukraine is also notably the only State not party to the ICC Rome Statute that has acceded to the Agreement on Privileges and Immunities of the Court as of  29 January 2007.

In December 2020, former ICC Prosecutor Fatou Bensouda announced the conclusion of the preliminary examination and that the statutory criteria for opening investigations into the situation in Ukraine were met. The Prosecutor concluded that there was “a reasonable basis at this time to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the Court have been committed in the context of the situation in Ukraine.” And that “that these crimes, committed by the different parties to the conflict, were also sufficiently grave to warrant investigation by my Office, both in quantitative and qualitative terms.”

However, the Prosecutor did not move forward with seeking authorization from ICC judges, as would have been required to trigger an investigation. She noted that  “The Office faces a situation where several preliminary examinations have reached or are approaching the same stage, at a time when we remain gripped by operational challenges brought on by the COVID-19 pandemic, on the one hand, and by the limitations of our operational capacity due to thin and overextended resources, on the other.” The findings were detailed in the 2020 Annual Report on Preliminary Examination Activities.


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