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ICC prosecutor's report on Ukraine important to further legal actions - experts

However it entails no direct legal consequences.

ICC prosecutor's report on Ukraine important to further legal actions - experts
ICC Prosector Fatou Bensouda
Photo: un.org

The experts who participated in Gorshenin Institute's survey have suggested that although Russia has recalled its signature under the Rome Statute, this will not affect the investigation into the crimes committed by its citizens on the territory of Ukraine, while the ICC prosecutor's report, which says the capture of Crimea amounts to an international military conflict between Ukraine and Russia as the aggressor state, is important not in itself, but in the context of a consistent position of the international community on the issue of Crimea and any possible legal proceedings in international courts.

Experts believe that the ICC Office of Prosecutor, which carries out a preliminary examination of the events that occurred on the territory of Ukraine in 2014, overall arrived at the obvious conclusion in its report.

Thus, the chairman of the Human Rights Information Centre, Tetyana Pechonchyk, said that "for this qualification in terms of international law, the situation is quite obvious because it cannot be called otherwise. Any situation of occupation, even if it did not involve armed clashes or resistance, is considered an armed conflict by international law. It cannot be described in any other way."

At the same time, experts noted that such qualification by yet another influential international body is important to Ukraine. "It is very good that the prosecutor's office did this in its report, although this is not the court's decision. This will impact on court practice and qualification of the conflict by other international judicial institutions," Tetyana Pechonchyk said.

Experts agreed that this ICC qualification does not entail any direct legal consequences, however it is important in the context of a consistent position of the international community on the issue of Crimea and any possible legal proceedings in international courts.

"The qualification of these events is very straightforward, simple and clear: "illegal", "contrary to international law", "annexation and subsequent occupation". For us, the positive fact is that this international body, which is very powerful and very important in the context of possible further proceedings, has aligned itself with such qualifications (the UN General Assembly, the OSCE Parliamentary Assembly, PACE - Ed.)," said Doctor of Law Oleksandr Zadorozhnyy , head of the Department of International Law, the Institute of International Relations at the National Taras Shevchenko University in Kyiv.

In particular, the expert stressed, the qualification of the case by the International Criminal Court is very important in international legal proceedings. "Ukraine has filed four interstate lawsuits with the European Court of Human Rights. Ukraine is preparing to initiate proceedings in the international maritime tribunal with the headquarters in Hamburg; preparations are underway to file lawsuits in line with two conventions: the threat of racial discrimination and on aiding and abetting terrorism," Zadorozhnyy said.

Ukrainian international lawyer Borys Babin pointed out that although the report of the ICC prosecutor does not entail any immediate legal consequences, from a political point of view it is extremely disadvantageous to Russia: "Everyone understands that the position is based on the evidence submitted to the International Criminal Court: both on the statements made by Ukraine and possibly on the statements made by individuals whose rights were violated as a result of the Russian aggression. Politically, it does not benefit Russia at all that the court has recognized the existence of the conflict in Crimea and the international nature of the conflict in Donbas."

Russia's decision to recall its signature under the Rome Statute will not affect the investigation, experts say.

"Russia has not been a member of the International Criminal Court. In 2002, it signed the Rome Statute, which regulates the operation of the International Criminal Court, but has not ratified the document. The recalling of the signature will not change anything in the legal, global sense. They officially announced that they would not ratify the Rome Statute, but nobody expected them to ratify it. From the legal point of view, it does not entail any changes," Pechonchyk said.

Borys Babin, for his part, stressed that Russia had recalled its signature under the Rome Statute because even a state which has not ratified the treaty but has signed it bears the commitment not to infringe on the goal and basic principles of the treaty. "In terms of the Vienna Convention on the Law of Treaties (Article 18), Russia has certain obligations under the agreement (though not comprehensive, unlike states which ratified it). It is from these obligations that Russia has refused." On the one hand, the expert said, this step has been taken with a view to the "internal customer": in this way, the government wants to show its citizens that Russia does not care about the International Criminal Court's statements. On the other hand, it gives Russia a reason to give up any form of cooperation with the ICC, including to respond to any requests for any documents and even official comments. In addition, the expert suggested, Russia made this step to be able to falsify its own investigation into the so-called "crimes of the Ukrainian junta in Donbass" without the intervention of the ICC.

At the same time, the expert noted, the recalled signature does not affect the International Criminal Court's jurisdiction over the case. "It will not entail any changes as far as bringing guilty Russian citizens to justice at the ICC is concerned. The crimes they committed in the framework of the conflict were committed on the territory of Ukraine, against the interests of Ukraine and its citizens. With its two statements in 2014 and 2015, Ukraine partly recognized the jurisdiction of the ICC and thus the ICC has absolutely appropriate authority to investigate these cases," Babin said.

The expert also noted a special legal case in connection with Ukraine's partial recognition of the ICC's jurisdiction. "By virtue of Ukraine's two statements in 2014-2015 on the partial recognition of the ICC jurisdiction, we undertook all the commitments which we must implement under the treaty, under the Rome Statute, but did not get any rights. We are now in a worse situation than we would have been had we even ratified the Rome Statute. The Ukrainian leadership's paradoxically pathological fear of ratifying the Rome Statute in full has led to such strange consequences. Responsibility for us has come: the ICC the right to bring any citizen of Ukraine, including Ukrainian military commanders, to justice, but without having ratified the Rome Statute, we cannot have full-scale cooperation with the ICC," Babin concluded.