270
h tt ps: //a mazo ni ai nv est ig a. in fo/ I S S N 2 3 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
DOI: https://doi.org/10.34069/AI/2024.77.05.20
How to Cite:
Lankevych, A., Zaverukha, O., Sopilnyk, R., Havrylenko, O., & Podilchak, O. (2024). The ICC jurisdiction in Ukraine: challenges
and opportunities in the fight against impunity. Amazonia Investiga, 13(77), 270-279. https://doi.org/10.34069/AI/2024.77.05.20
The ICC jurisdiction in Ukraine: challenges and opportunities in the
fight against impunity
Юрисдикція МКС в Україні: виклики та можливості у боротьбі з безкарністю
Received: April 20, 2024 Accepted: May 28, 2024
Written by:
Andrii Lankevych1
https://orcid.org/0009-0005-4443-5684
Oleh Zaverukha2
https://orcid.org/0000-0002-5896-8925
Rostyslav Sopilnyk3
https://orcid.org/0000-0001-9942-6682
Oleksandr Havrylenko4
https://orcid.org/0000-0001-5554-4919
Olha Podilchak5
https://orcid.org/0000-0002-9654-1914
Abstract
This article examines the legal relationship
between the International Criminal Court (ICC)
and Ukraine, a non-party to the Rome Statute,
focusing on the scope of the Court's jurisdiction to
consider Ukraine's referrals regarding serious
crimes committed on its territory since 2014.
Discussions regarding the extension of the ICC's
jurisdiction over Ukraine commenced in 2014-
2015 following Ukraine's two requests for
recognition of the ICC's ad hoc jurisdiction.
Following the full-scale invasion in 2022, the ICC
consolidated these proceedings with the ongoing
investigation of crimes committed in Ukraine
since 2014. This article analyzes how the ICC's
jurisdiction applies to Ukraine, the challenges and
prospects for cooperation between the ICC and
Ukraine in investigating crimes committed by
Russian forces, and the broader implications for
the international criminal justice system. The
Анотація
-2015
1
Doctor of Law, Associate Professor of the Department of Judiciary, Prosecutor's Office and Advocacy, Lviv University of Business
and Law, Ukraine. WoS Researcher ID: KSM-9021-2024.
2
PhD in Chemical Sciences, Associate Professor, Department of Natural Sciences and Environment Protection, Lviv University of
Business and Law, Ukraine. WoS Researcher ID: KSM-9040-2024.
3
Doctor of Law, Professor, Honored Lawyer of Ukraine, Professor of the Department of Economic and Legal Disciplines, Institution
.
WoS Researcher ID: A-9724-2017.
4
Doctor of Law, Professor, International and European Law Department, School of Law, V. N. Karazin Kharkiv National University,
Ukraine. WoS Researcher ID: Y-8919-2018
5
PhD in Law, Associate Professor, Department of Legal Support of Business Security, Faculty of International Trade and Law, State
University of Trade and Economics, Ukraine. WoS Researcher ID: AEE-2861-2022
Lankevych, A., Zaverukha, O., Sopilnyk, R., Havrylenko, O., Podilchak, O. / Volume 13 - Issue 77: 270-279 / May, 2024
Volume 13 - Issue 77
/ May 2024
271
h tt ps: / /a maz on iain ve sti ga .i nfo/ IS S N 23 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
authors analyze arguments for and against
Ukraine's ratification of the Rome Statute,
concluding that the ICC's jurisdictional
framework, particularly concerning the crime of
aggression, requires refinement.
Keywords: international law, human rights, war
crimes, genocide, international responsibility,
international sanctions.
Ключові слова:
Introduction
The security of individual states and international security as a whole directly depends on how quickly and
efficiently the international community can respond to the commission of international crimes, including
by bringing to justice those who order such crimes. The effective operation of criminal justice at the
international level is designed not only to prosecute international crimes, but also to prevent international
crimes in the future (Gutnyk, 2023). Unfortunately, humanity has not yet learned to solve geopolitical
problems in a peaceful, diplomatic manner (Kaplina, 2022).
The armed aggression of the Russian Federation against Ukraine is forcing a rethinking of the international
criminal justice system. Today, this system is undergoing a test of effectiveness (Gutnyk, 2023), and one
of the pillars of the international criminal justice system is the International Criminal Court (ICC)
(Ali Al Omar & Allwan Al Amery, 2024), established in accordance with the Rome Statute of the
International Criminal Court in 1998 (United Nations, 1998).
The ICC is the only institution in the modern international legal system that can prosecute war crimes in
Ukraine (Rynkun-Werner et al., 2023). The ICC is competent to implement the principle of inevitability of
punishment for international crimes and to prevent similar crimes in the future (Gutnyk, 2023). The crimes
under the jurisdiction of the ICC pose a threat to international peace and security (Pavlenko & Ohievich,
2020) - genocide, war crimes, crimes against humanity and the crime of aggression are recognised by the
international community as the most serious crimes that should not go unpunished.
The creation of the ICC at the turn of the XX and XXI centuries marked the beginning of a new stage in
the development of criminal justice (Smyrnov, 2023), the purpose of which is to bring to justice those
responsible for the most serious crimes. The ICC is a form of international legal system that emerged when
human society reached a certain stage of development (Geng, 2023), when information, as a dominant
worldview element (Maraieva, 2022) became the main tool in the criminal investigation process, although
the close connection between information, freedom, justice and law was noticed long ago
(Gennadievich Danilyan et al., 2018).
Ukraine took an active part in the development of the Rome Statute, and a Ukrainian delegation participated
in the Diplomatic Conference held in Rome on 15 June - 17 July 1998 (Drozdov et al., 2022). According
to contemporaries of those events, the creation of the International Criminal Court is a historic phenomenon
in efforts to bring to justice those guilty of the most serious international crimes, the victims of which are
many innocent people (Syroid, 2009b).Today, 124 countries are parties to the Rome Statute (United
Nations, 1998), which is recognised as a rather flexible document that allows to look for ways of
convergence between national legislation and the Statute rather than contradictions (Drozdov et al., 2022).
After the beginning of the Russian military aggression in Ukraine, the regional military conflict has
acquired the features of a global confrontation (Derv ), and the leaders of at least European countries
and North America have reached a consensus on the need to bring the leaders of the Russian Federation to
justice for the crimes committed in Ukraine (Heller, 2024). However, there is no consensus on how to bring
the top Russian officials to justice (Heller, 2024). As a result of the full-scale invasion of the territory of
Ukraine by Russian troops, ICC Prosecutor Karim Khan announced the opening of an investigation into
potential war crimes committed in the context of the conflict (International Criminal Court, 2022).
The first major step taken by the ICC in relation to the war in Ukraine was unprecedented and
groundbreaking (Rynkun-Werner et al., 2023) on 17 March 2023, it issued arrest warrants for Russian
272
h tt ps: //a mazo ni ai nv est ig a. in fo/ I S S N 2 3 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
President Vladimir Putin and the Children's Ombudsman of the Office of the President of the Russian
Federation, Maria Alekseevna Lvova-Belova (International Criminal Court, 2022).
However, the ICC's investigation in Ukraine faces many obstacles, in particular because neither Ukraine
nor Russia has ratified the Rome Statute. Although Ukraine has recognised the ICC's jurisdiction over
certain situations, this gives legal grounds to assert that international crimes have been committed in
Ukraine since 2014 (Schüller, 2023) and require further investigation. The purpose of this article is to
determine how the ICC's jurisdiction extends to Ukraine, what legal mechanisms the court uses to
investigate crimes in Ukraine in the absence of ratification, and what are the challenges and prospects for
further cooperation between the ICC and Ukraine to investigate crimes committed by Russian troops in
Ukraine.
To achieve the aforementioned goal, the following tasks are set forth in the research:
1. Determine the scope of the ICC's jurisdiction over Ukraine, under which principles and legal constructs
the ICC's authority can be exercised.
2. Identify the main problems in applying the ICC's jurisdiction to legal relations arising from
international crimes committed on the territory of Ukraine the lack of ratification of the Rome Statute,
the delimitation of jurisdiction between the ICC and other judicial institutions in investigating the
crimes of Russian aggression in Ukraine, the application of the ICC's jurisdiction ad hoc and outline
ways to overcome them.
3. Determine the prospects for cooperation between Ukraine and the ICC to investigate crimes committed
by Russian troops on the territory of Ukraine and assess the potential of Ukraine's ratification of the
Rome Statute.
Thus, the structure of the article is built in such a way as to gradually answer all the tasks set and consists
of:
• Introduction provides a general overview of the issue under study,
• Methodology the author describes the methodology and process of conducting this research,
• Results the issues of Scope of the ICC's jurisdiction (1), Problems of applying the ICC's jurisdiction
in Ukraine (2), Delimitation of jurisdiction between the ICC, the International Court of Justice, and the
ECHR (3) are considered separately.
• Discussion the prospects of applying the ICC's jurisdiction to investigate the crimes of aggression of
the Russian military in Ukraine and the issue of Ukraine's ratification of the ICC Statute are considered.
• Conclusion conclusions from this study are presented, indicating limitations and further directions
of scientific development.
Methodology
To study the ICC's jurisdiction over Ukraine, a comprehensive approach was applied based on general
scientific research methods: analysis, synthesis, comparison, analogy, and modelling. The method of
comparison and analogy was used to develop Table 1, and the modelling method was used to compile the
content of the ICC's jurisdiction, as shown in Figure 1.
Data collection
The scientific basis of the study is based on the works of scholars on the jurisdiction and powers of the ICC,
the role of the ICC in the investigation of international crimes, published in the scientific and metric
databases WoS, Science Direct, ResearchGate. The legal basis of the study is the 1998 Rome Statute of the
ICC, the Constitution and laws of Ukraine. The source of up-to-date information on the status of the ICC's
investigation of crimes in Ukraine was the official ICC web portal https://www.icc-cpi.int/
Data analysis
The author gathered over 50 articles from scientific metric databases on the given topic, published between
2018 and 2024. Among these, 30 scientific studies relevant to illuminating the scope of the ICC's
jurisdiction, particularly in Ukraine after 2014, were selected. The method of legal analysis (of normative
acts) and thematic analysis (of articles and publications) was used to process the information obtained. The
Volume 13 - Issue 77
/ May 2024
273
h tt ps: / /a maz on iain ve sti ga .i nfo/ IS S N 23 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
comparative legal method was used to delineate the jurisdiction of the ICC and other international judicial
institutions. In general, the author has applied a comprehensive systematic approach to the study of this
issue, which allows us to consider the obtained results of the scientific legal research to be reliable.
Results
Scope of the ICC's jurisdiction
the power or competence of a court or judge to convict or award a remedy under the law (Black, 1968).
Based on this, the jurisdiction of the ICC should be interpreted as the authority to investigate and prosecute
international crimes within the limits set out in its Statute. Gutnyk proposes to consider the jurisdiction of
the ICC as a complex concept that
(Gutnyk, 2024), which is based on a number of jurisdictional principles (Geng, 2023). A visualization of
the concept of the ICC's jurisdiction is presented in Figure 1.
Figure 1. Contents of the ICC's jurisdiction.
Source: United Nations, 1998), Drozdov et al. (2022), Gutnyk
(2024).
An important issue for determining the ICC's jurisdiction is the admissibility of a case, which, according to
the Rome Statute, is decided on the basis of the principle of complementarity provided for in paragraph 10
(United Nations, 1998), and is a court of last resort (DROZDOV et al., 2022). The application of the
principle of complementarity creates a special order of relations between national and international
jurisdictions (Smyrnov, 2023). This means that the ICC complements the national criminal justice systems
of a state (United Nations, 1998). The general rule is that the ICC has no right to replace or substitute
national courts, the role of the ICC is complementary (Rynkun-Werner et al., 2023).
Furthermore, the ICC should only deal with the most serious crimes, which requires an assessment of the
gravity of the crime, which is carried out in both quantitative and qualitative terms, with attention to the
nature, scale and method of the crime and the impact of its harmful consequences (Rynkun-Werner et al.,
2023). In a situation where the jurisdiction of national courts and the International Criminal Court overlap,
ICC jurisdiction
Subject matter jurisdiction
“ratione materiae” Article 5
of the Rome Statute
a) the crime of genocide;
b) crimes against
humanity;
c) war crimes;
d) the crime of aggression.
Personal jurisdiction
“ratione personae” cl. 5 and
6 of the Preamble
Jurisdiction applies only to
individuals
Temporal jurisdiction
“ratione temporis”
Article 11 of the Rome
Statute
Jurisdiction extends to
crimes committed after the
entry into force of the Rome
Statute or after the entry
into force for a particular
state
Territorial jurisdiction
“ratione loci”
Article 12 of the Rome
Statute
a) The state in whose
territory the offence was
committed
b) The state of nationality
of the person accused of
the offence
Principle of
complementarity
Principle of individual
responsibility
274
h tt ps: //a mazo ni ai nv est ig a. in fo/ I S S N 2 3 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
the general rule is to give priority to the former, with the jurisdiction of the ICC recognised on a
supplementary basis (Rynkun-Werner et al., 2023).
In addition to the principle of complementarity, the ICC's jurisdiction is based on the principle of individual
criminal responsibility (Smyrnov, 2023), which means that the court can only prosecute individuals whose
actions are qualified as crimes by the court, and the court does not have the power to prosecute the state.
At the same time, the state cannot grant immunity to the president, prime minister, cabinet minister or
parliamentarian who are subject to criminal liability under the Rome Statute (Rynkun-Werner et al., 2023).
The problems associated with the application of the ICC's jurisdiction over Ukraine stem from several
reasons.
1. Ukraine signed the Rome Statute on 20 January 2000, but it has not yet ratified it, although this issue
has been raised on several occasions, especially in light of the events after 2014 (annexation of Crimea
and the start of the Anti-Terrorist Operation in eastern Ukraine).
In order to implement the provisions of the Rome Statute into Ukrainian legislation, the President of
Ukraine submitted a petition to the Constitutional Court of Ukraine on the compliance with the provisions
of the Constitution of Ukraine. As a result, on 11 July 2001, the Constitutional Court issued its opinion that
provisions of paragraph 10 of the Preamble and Article 1 of the Statute, according to which the International
Verkhovna Rada of Ukraine,
2001). This decision of the Constitutional Court has been repeatedly criticised by the Ukrainian scientific
community and recognised as an erroneous interpretation of the provisions of the Rome Statute (Drozdov
et al., 2022; Gutnyk, 2024).
Criminal Court under the conditions set ou
(Verkhovna Rada of Ukraine, 1996). However, even after this provision came into force in 2019, the Rome
Statute was not ratified. According to Smyrnov, one of the reasons for the lack of ratification of the Rome
Statute is the complementary nature of the ICC's jurisdiction (Smyrnov, 2023). Another reason for the delay
is the Ukrainian authorities' fear of interference with the sovereignty of the state, but in international law,
states are usually forced to self-restrict their sovereign rights, but without losing their sovereignty (Bytyak
et al., 2017).
With the beginning of the full-scale invasion, the focus was again on the ratification of the Rome Statute.
In May 2022, the Verkhovna Rada of Ukraine amended the Criminal Procedure Code of Ukraine by adding
Section IX-2
jurisdiction of the ICC to Ukrainian citizens, foreign citizens and stateless persons who committed a crime
with the aim of armed aggression against Ukraine on the basis of decisions of authorised persons of the
Russian Federation or another country that committed aggression or facilitated aggression against Ukraine
(Verkhovna Rada of Ukraine, 2012). This section establishes the rules of interaction between the criminal
justice authorities of Ukraine and the ICC in matters of investigation, trial and execution of the ICC
judgements (Smyrnov, 2023).
2. The fact that Ukraine has not ratified the provisions of the Rome Statute does not prevent Ukraine from
applying to the court and conducting investigations into the crimes under Article 5. The Rome Statute,
in particular Article 12, provides for the possibility for a state to recognise the jurisdiction of the ICC
over certain matters without ratifying it (United Nations, 1998). Ukraine has twice applied to the ICC
Smyrnov, 2023) in 2015, with an application for
recognition of its jurisdiction over crimes against humanity and war crimes committed by officials of
particularly grave consequences and massacres of Ukrainian citizens (Verkhovna Rada of Ukraine,
2015) and with an application for crimes against humanity committed by senior officials of the state,
which led to particularly grave consequences and massacres of Ukrainian citizens during peaceful
protests between 21 November 2013 and 22 February 2014 (Verkhovna Rada of Ukraine, 2014).
Volume 13 - Issue 77
/ May 2024
275
h tt ps: / /a maz on iain ve sti ga .i nfo/ IS S N 23 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
In these applications, the ICC's substantive jurisdiction is limited - the investigation is conducted within the
crime of genocide, crimes against humanity and war crimes, and cannot be conducted in relation to the
crime of aggression, as this crime is subject to a special procedure for recognising jurisdiction under Articles
15 bis and 15 ter of the Statute (United Nations, 1998).
Also, the ICC's territorial jurisdiction is limited, the investigation can be carried out in the alleged territories
of the crimes the territory of Ukraine, including the temporarily occupied territories of Donetsk and
Luhansk regions and the Autonomous Republic of Crimea.
The ICC's jurisdiction to investigate these applications has a time limit: in relation to the events on
Euromaidan - from 21 February 2013 to 22 February 2014, in relation to the armed conflict - from 20
February 2014 without a deadline; the ICC's jurisdiction in these situations is retroactive.
The ICC's jurisdiction is not limited in terms of the range of persons, the court can prosecute both citizens
of Ukraine and Russia and other states or stateless persons; the ICC Prosecutor will decide who to prosecute
(Marchuk & Wanigasuriya, 2022).
After several years of preliminary checks, the ICC Prosecutor's Office decided in 2020 to launch an
investigation, emphasising that additional resources would be required (SCHÜLLER, 2023). It is obvious
that in the vast majority of cases, the Rome Statute places the burden of proof on the Prosecutor, who must
respond in a timely manner to the commission of serious international crimes (Syroid, 2009a). Following
the full-scale invasion of Ukraine by Russian troops, the ICC Prosecutor announced that Ukraine's
application regarding the events in the 'DPR' and 'LPR' since 2014 and the investigation into the events
after 24 February 2022 would be merged into a joint proceeding (International Criminal Court, 2022). Thus,
in the period from 2016 to 2022, the Ukrainian authorities took significant steps to bring national legislation
in line with the Rome Statute (Murachov, 2023).
Today, based on the principle of separation of powers (KUMAR, 2021), several international tribunals can
play a role in reviewing Russia's actions in Ukraine and punishing those responsible for committing crimes,
primarily the International Court of Justice (ICJ), the International Criminal Court (ICC) and the European
Court of Human Rights (ECtHR) (Congressional Research Service, 2023), each of which has initiated
proceedings on Ukraine's applications against Russia. In this regard, the jurisdiction of these courts is
delineated in Table 1.
Table 1.
Delimitation of jurisdiction of the ICC, the International Court of Justice and the ECtHR.
Basis for comparison
ICC
International Court of Justice
ECHR
Date of creation
July 2002
June 1945
1959 year
The reason for creation
Rome Statute of the International
Criminal Court
United Nations Charter Chapter XIV
European Convention on Human
Rights Section II
Location
Hague,
The Netherlands
Hague,
The Netherlands
Strasbourg, France
Subject matter
jurisdiction
• Genocide,
• War crimes,
• Crimes against humanity,
• Crimes of aggression.
all matters referred by the parties and
all matters specifically provided for in
the UN Charter or in applicable
international treaties and conventions
Cases of violation of human rights
enshrined in the European
Convention on Human Rights
Territorial jurisdiction
States parties to the Rome Statute,
other countries under special
conditions
UN countries, other countries in
exceptional cases
Countries of the Council of Europe
Personal jurisdiction
Investigations of individuals
responsible for the most serious
crimes
Settlement of disputes between UN
states; between other states in
exceptional cases
Consideration of applications by
individuals against a Council of
Europe member state
(1945), European Convention on Human Rights (1950)
Ukraine actively uses all three international institutions to punish those responsible for crimes committed
on its territory. However, as can be seen from Table 1, only the ICC has the competence to prosecute the
most serious crimes committed in wartime.
3. The ICC's jurisdiction to prosecute the crime of Russian aggression against Ukraine.
276
h tt ps: //a mazo ni ai nv est ig a. in fo/ I S S N 2 3 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
Based on the above, the ICC's jurisdiction extends to cases where a state has referred a specific situation to
the court, or such a situation has been referred to the court by the UN Security Council, or an investigation
has been initiated by the ICC Prosecutor (Drozdov et al., 2022). The latter case became the basis for the
actions of the ICC Prosecutor Kareem Khan after 24 February 2022.
However, in accordance with Article 15 bis (4 and 5) of the Rome Statute, Karim Khan's actions do not
apply to the investigation of a crime of aggression - in the case of an act of aggression committed by a state
that, like the Russian Federation, has not acceded to the Rome Statute, the initiation of an investigation
differs from the procedure for cases of genocide, war crimes and crimes against humanity (Kress et al.,
2023).
In this regard, the question of bringing the Russian authorities to justice for the crime of aggression, which
is also a violation of one of the pillars of the UN Charter, the prohibition of the use of force, remains
controversial. Since 2018, the ICC has had the power to prosecute the crime of aggression, but there is an
exception to this crime that does not apply to the other three core crimes, as Article 15 bis (5) of the Rome
Statute requires that the aggressor state must also be a party to the Rome Statute (United Nations, 1998), or
under the condition of a referral by the UN Security Council, which is not a viable option in this situation,
as Russia will not vote for such actions (Schüller, 2023). Therefore, Prosecutor Khan has no choice but to
abstain from considering charges of crimes of aggression. This means that he is forced to conduct his
investigations in a limited manner (Kress et al., 2023).
Discussion
The prospect of Ukraine's ratification of the Rome Statute remains open, and Ukraine's position on its
intention to ratify the Rome Statute is rather inconsistent and contradictory, reinforced by the latent conflict
between civil society organisations and the political authorities in contemporary Ukrainian society
(Udzhmadzhuridze et al., 2019).
universally recognised standards of the UN, the Council of Europe and the European Union in the fight
against the most serious crimes that are of concern
the need for Ukraine to ratify the Rome Statute, Marchuk (2021) draws an analogy with Ukraine's
ratification of the European Convention on Human Rights, on the basis of which it recognises the judgments
of the ECtHR. In this context, the question arises as to how the ICC proceedings differ from the ECtHR
proceedings from the point of view that both courts are international judicial institutions that perform a
complementary function to the Ukrainian judicial system - they consider cases when all national judicial
means have been exhausted or cannot be applied (Marchuk, 2021).
Opponents of Ukraine's accession to the Rome Statute argue that the ICC will not be effective in
investigating crimes and punishing those responsible among the Russian leadership (Mcdougall, 2023),
ICC has no jurisdiction to investigate crimes of Russian aggression in Ukraine (Dannenbaum, 2022).
Establishment of a special international tribunal is considered to be the only viable way to prosecute crimes
of aggression committed against Ukraine (Mcdougall, 2023). The new international tribunal is needed
because the ICC is currently unable to adjudicate on the crime of aggression committed by Russia, and
national courts will struggle in the face of such obstacles as the immunity of the highest authorities of the
Russian Federation (Grzebyk, 2023).
However, this proposal also did not receive unequivocal assessments. For example, researchers argue that
such a court will go down in history as a special court created for one specific situation, rather than as
applicable to others, especially if it includes trials in absentia while there is a permanent international
criminal court.
The only way to resolve the legitimacy issue is to expand the ICC's jurisdiction over the crime of aggression
by amending the Rome Statute accordingly. Instead of a one-off ad hoc court, the ICC should be given
jurisdiction to deal with similar future situations of crimes of aggression. Only such a step could stabilise
the global legal order, rather than further fragment it by doing the bidding of stronger states (Schüller,
2023).
Volume 13 - Issue 77
/ May 2024
277
h tt ps: / /a maz on iain ve sti ga .i nfo/ IS S N 23 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
In addition, due to the severe negative impact of hostilities on Ukraine's environment, which was
characterised as unsatisfactory even before the war began (Kovaliuk et al., 2020), the discussion on the
extension of the ICC's substantive jurisdiction to include the crime of ecocide has become relevant
(Shumilo, 2021). The conflict in Ukraine is an opportunity to improve the Rome Statute and ensure that
anyone who commits a crime of aggression does not go unpunished in the future (Moreno Ocampo, 2023).
In the light of Ukraine's potential accession to the Rome Statute, other problems of the ICC's functioning
arise, including the lack of expected effectiveness, initiation of proceedings, obstacles to the transfer and
referral of cases to the court (Ali Al Omar & Allwan Al Amery, 2024), the duration of the proceedings, as
well as the issue of proper cooperation between the ICC and states, as cooperation is the main form of
enforcement of ICC decisions (Matkovskyi, 2023). There are some serious problems related to the issue of
an enforcement mechanism for States Parties that refuse to cooperate with the court, and there is no such
mechanism yet. In general, these issues are beyond the scope of this study and may be the subject of further
research.
Given the unique course of international criminal proceedings, this study has certain limitations, motivated
by the ongoing active investigation of the ICC, on the one hand, and the duration of hostilities, respectively
- the commission of new crimes against humanity, war crimes, and crimes of aggression by Russian troops
on the territory of Ukraine, on the other hand. Limitations in the research are caused, in addition to the
above, by the lack of access to information about the progress of the investigation, except for that officially
published on the ICC website. This issue has great research potential, as the application of the ICC's
jurisdiction in Ukraine creates a precedent for the application of international law for future generations.
Conducting scientific research on current events as they unfold also carries certain risks regarding the
author's impartiality and the objectivity of information available in open sources. This phenomenon, in light
of the criminal proceedings regarding the investigation of crimes committed by Russian troops on the
territory of Ukraine since 2014, is one of the possible directions for further scientific research.
Conclusions
International law and cooperation between states and international organisations will play a crucial role in
the fight against impunity for the most serious crimes against the Ukrainian population (Lanza, 2022). In
the current international system, the ICC is the most advanced institutional model of the existing
international criminal justice bodies (Smyrnov, 2022). The ICC's jurisdiction extends only to crimes
specified in the Rome Statute, with an extremely limited scope, and the explicit consent of the countries
concerned is usually required for the ICC to exercise its jurisdiction.
As of today, Ukraine has found a legal way to recognise the jurisdiction of the ICC over crimes committed
and still being committed on its territory, which gives hope for a fair trial and prosecution of the
perpetrators, but the issue of ratification of the Rome Statute remains relevant. The Ukrainian authorities
should be commended for taking the first positive steps in this direction, including amendments to the
Constitution and the Criminal Procedure Code of Ukraine. At the same time, the very system of determining
the ICC's jurisdiction enshrined in the Rome Statute, in particular with regard to the crime of aggression,
needs to be improved in order to more effectively prosecute the most serious crimes.
The novelty of this study lies in summarizing possible scenarios for cooperation between the ICC and
Ukraine to investigate the crimes of the Russian military on the territory of Ukraine. The author's
identification of all problematic aspects of Ukraine's ratification of the Rome Statute deserves special
attention, as well as the legal analysis of the current algorithm of cooperation between Ukraine and the ICC
in the absence of ratification.
The issues of limiting the ICC's jurisdiction in Ukraine, the procedure for enforcing ICC decisions for
Ukraine and Russia are potential areas of scientific research. Also, the issue of delimiting the jurisdiction
of the ICC and other international judicial bodies regarding the investigation of war crimes and crimes of
aggression committed on the territory of Ukraine from 2014 to the present, the beginning of which is laid
in this work, requires further doctrinal development.
278
h tt ps: //a mazo ni ai nv est ig a. in fo/ I S S N 2 3 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
Bibliographic References
Ali Al Omar, B.A., & Allwan Al Amery, A.S. (2024). The challenges of filling cases to the international
criminal court. Randwick International of Social Science Journal, 5(1), 137-146.
https://doi.org/10.47175/rissj.v5i1.897
Black, H. C. (1968). Black’s Law Dictionary, 2nd Ed. West publishing CO. URL:
https://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf
Bytyak, Y., Yakovyuk, I., Tragniuk, O., Komarova, T., & Shestopal, S. (2017). The State sovereignty and
sovereign rights: the correlation problem. Man In India, 97(23), 577-588.
Congressional Research Service (2023). The role of international tribunals in the response to the invasion
of Ukraine. URL: https://crsreports.congress.gov/product/pdf/LSB/LSB10704 Accessed: 24 Apr. 2024.
Dannenbaum, T. (2022). A special tribunal for the crime of aggression? Journal of International Criminal
Justice, 20(4), 859-873. https://doi.org/10.1093/jicj/mqac047
Derv -Ukrainian war: impact on
regional relations in the future. Futurity of Social Sciences, 1(1), 21-34.
https://doi.org/10.57125/FS.2023.03.20.02
Drozdov, O.M., Drozdova, O.V., Karpenko, M.O., & Zuev, V.V. (2022). Cooperation with an International
Criminal Court: organizational, jurisdictional and criminal procedure aspects. Juridical Scientific and
Electronic Journal, 8, 484-492. http://lsej.org.ua/8_2022/110.pdf
European Court of Human Rights (1950). European Convention on Human Rights. URL:
https://www.echr.coe.int/european-convention-on-human-rights
Geng, Z. (2023). An exploration of selective justice in the International Criminal Court. SHS Web of
Conferences, 178, 02019. https://doi.org/10.1051/shsconf/202317802019
Gennadievich Danilyan, O., Petrovich Dzeban, A., Yurievich Kalinovsky, Y., Anatolievich Kalnytskyi, E.,
& Borisovna Zhdanenko, S. (2018). Personal information rights and freedoms within the modern
society. Informatologia, 51(1-2), 24-33. https://doi.org/10.32914/i.51.1-2.3
Grzebyk, P. (2023). Crime of aggression against Ukraine. Journal of International Criminal Justice, 21(3),
435-459. https://doi.org/10.1093/jicj/mqad035
Gutnyk, V. (2023). The development of international criminal justice: Expectations and reality. Right, 126,
101-115. https://doi.org/10.15388/Teise.2023.126.7
Gutnyk, V.V. (2024). The international criminal court: Current problems and ways of their
solution. Uzhhorod National University Herald. Series: Law, 3(81), 251-257,
https://doi.org/10.24144/2307-3322.2024.81.3.37
Heller, K.J. (2024). Options for prosecuting Russian aggression against Ukraine: A critical
analysis. Journal of Genocide Research, 26(1), 1-24. https://doi.org/10.1080/14623528.2022.2095094
International Criminal Court (2022). Situation in Ukraine ICC-01/22. Available at: https://www.icc-
cpi.int/situations/ukraine
International Court of Justice. (1945). Statute of the International Court of Justice. https://www.icj-
cij.org/statute#CHAPTER_II
Kaplina, O. (2022). Prisoner of war: special status in the criminal proceedings of Ukraine and the right to
exchange. Access to Justice in Eastern Europe, 4-2(17), 8-24. https://doi.org/10.33327/AJEE-18-5.4-
a000438
Kovaliuk, T., Kobets, N., Ivashchenko, D., & Kushnarov, V. (2020). Environmental monitoring and
population protection from environmental factors. In Information Technology in Disaster Risk
Reduction: 4th IFIP TC 5 DCITDRR International Conference, ITDRR 2019, Kyiv, Ukraine, October
9-10, 2019, Revised Selected Papers 4 (pp. 55-66). Springer International Publishing.
https://doi.org/10.1007/978-3-030-48939-7_6
Kress, C., Hobe, S., & Nußberger, A. (2023). The Ukraine war and the crime of aggression: How to fill the
gaps in the international legal system. Just Security. https://acortar.link/Mn0YbB
Kumar, A. (2021). Analysis of the principle of subsidiarity as a principle of EU law: Future
perspectives. Futurity Economics&Law, 1(4), 18.27. https://doi.org/10.57125/FEL.2021.12.25.03
Lanza, G. (2022). The fundamental role of international (criminal) law in the war in Ukraine. Orbis, 66(3),
424-435. https://doi.org/10.1016/j.orbis.2022.05.010
Maraieva, U. (2022). On the formation of a new information worldview of the future (literature
review). Futurity Philosophy, 1(1), 18-29. https://doi.org/10.57125/FP.2022.03.30.02
Marchuk, I. (2021). Ukraine and the international criminal court: implications of the ad hoc jurisdiction
acceptance and beyond. Vanderbilt Law Review, 49, 323.
https://scholarship.law.vanderbilt.edu/vjtl/vol49/iss2/2
Volume 13 - Issue 77
/ May 2024
279
h tt ps: / /a maz on iain ve sti ga .i nfo/ IS S N 23 2 2 - 6 3 0 7
This article is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). Reproduction, distribution,
and public communication of the work, as well as the creation of derivative works, are permitted provided that the original
source is cited.
Marchuk, I., & Wanigasuriya, A. (2022). The ICC and the Russia-Ukraine war. American Society of
International Law, 26(4). https://www.asil.org/insights/volume/26/issue/4
Ukraine. Law and Society, 3, 380-389. http://pravoisuspilstvo.org.ua/archive/2023/3_2023/57.pdf
Mcdougall, C. (2023). The imperative of prosecuting crimes of aggression committed against Ukraine.
Journal of Conflict and Security Law, 28(2), 203-230. https://doi.org/10.1093/jcsl/krad004
Moreno Ocampo, L. (2023). Ending selective justice for the international crime of aggression. Just
Security. https://acortar.link/VSHZ2A/
Murachov, R. (2023). Peculiarities of interaction between Ukraine and the international criminal court:
Legal aspects. Analytical and Comparative Jurisprudence, 5, 654-658. https://doi.org/10.24144/2788-
6018.2023.05.115
Pavlenko, I.V., & Ohievich, S.M. (2020). Peculiarities of international jurisdiction of the International
Criminal Court on human crimes: theoretical-legal aspect. Scientific Notes of Taurida National V.I.
Vernadsky University, 3(2), 207-212. https://doi.org/10.32838/2707-0581/2020.2-3/33
Rynkun-Werner, R., Kozicki, B., Zelkowski, J., & Krzew, D. (2023). Jurisdiction of the international
criminal court in the Hague and war crimes in Ukraine in the face of security. Journal of Security and
Sustainability Issues, 13(1), 325-336. https://doi.org/10.47459/jssi.2023.13.34
Schüller, A. (2023). What can(’t) international criminal justice deliver for Ukraine? Verfassungsblog.
https://verfassungsblog.de/justice-ukraine/
Shumilo, O. M. (2021). Prospects of determining the International Criminal Court jurisdiction regarding
ecocide. Actual Problems of Native Jurisprudence, 5(5), 106-112. https://doi.org/10.15421/392207
Smyrnov, M.I. (2023). Conceptual issues of ratification of the Rome statute of international criminal court
aggression against Ukraine. Juridical Scientific and Electronic Journal, 1, 542-546.
http://lsej.org.ua/1_2023/125.pdf
Juris
Europensis Scientia, 6, 98-102. http://jes.nuoua.od.ua/archive/6_2022/19.pdf
Syroid, T.L. (2009a). Legal standards and role of the prosecutor in international criminal trials. Kharkiv
National University of Internal Affairs. https://acortar.link/fSfGFX
Syroid, T.L. (2009b). Procedure for recognizing individuals as victims in international criminal
proceedings. Newsletter of the Academy of Mine Service of Ukraine. Series: “Law”, 2(3).
https://biblio.umsf.dp.ua/jspui/bitstream/123456789/3376/1/vamsup_2009_2_29.pdf
Udzhmadzhuridze, H., Bilan, S., & Kryvoshein, V. (2019). Individual significance of political participation
Economics & Sociology, 12(1), 193-207.
https://doi.org/10.14254/2071-789X.2019/12-1/11
United Nations (1998). Rome Statute of the International Criminal Court. United Nations Treaty
Collection. https://acortar.link/tNIxUE
Verkhovna Rada of Ukraine (1996). Constitution of Ukraine. Official website of the Parliament of Ukraine.
https://zakon.rada.gov.ua/laws/show/en/254%D0%BA/96-%D0%B2%D1%80#Text
Verkhovna Rada of Ukraine (2012). Criminal Procedural Code of Ukraine.
https://zakon.rada.gov.ua/laws/show/en/4651-17#Text
Verkhovna Rada of Ukraine (2001). Constitutional Court of Ukraine Conclusion in the case on the
constitutional submission of the President of Ukraine on the provision of an opinion on the compliance
of the Constitution of Ukraine with the Rome Statute of the International Criminal Court (the case of
the Rome Statute). URL: https://zakon.rada.gov.ua/go/v003v710-01
Verkhovna Rada of Ukraine. (2014). Statement of the Verkhovna Rada of Ukraine. To the International
Criminal Court on recognition by Ukraine of the jurisdiction of the international criminal court to
commit crimes against humanity by senior officials of the state, which led to particularly serious
consequences and the mass murder of Ukrainian citizens during peaceful protests at November 21,
2013 to February 22, 2014. https://zakon.rada.gov.ua/laws/show/790-18#Text
Verkhovna Rada of Ukraine. (2015). Statement of the Verkhovna Rada of Ukraine "On recognition by
Ukraine of the jurisdiction of the International Criminal Court of crimes against humanity and war
crimes by senior officials of the Russian Federation and leaders of terrorist organizations "DPR" and
"LPR" which led to particularly serious consequences and mass murder of Ukrainian citizens."
https://zakon.rada.gov.ua/laws/show/145-19#Text
