Article International Criminal Court: Chief Prosecutor to Open Investigation into Possible War Crimes in Ukraine

On March 2, 2022, Karim A.A. Khan QC, the chief prosecutor for the International Criminal Court (ICC) at The Hague, Netherlands, announced his decision to investigate possible war crimes in Ukraine. (Statement of ICC Prosecutor, Karim A.A. Khan QC.) Previously, on February 28, the chief prosecutor had announced his intention to seek authorization for an investigation from the Pre-Trial Chamber of the ICC, while also inviting a referral of the matter from a state party to expedite an investigation.

Legal Basis for Investigation

Authorization for an investigation on the initiative of the chief prosecutor must come from the Pre-Trial Chamber, as provided in the Rome Statute of the International Criminal Court (Rome Statute), the international agreement that created the ICC and provides its jurisdiction. Generally, the Rome Statute provides for jurisdiction over war crimes and crimes against humanity when the acts are committed in a state party to the agreement. (Rome Statute arts. 5, 12–15.) In the case of Russia and Ukraine, neither country is a signatory. However, Ukraine previously consented to jurisdiction by the ICC for war crimes committed in its territory during the Russian invasion of Crimea in 2013. Article 8, section 2 of the Rome Statute, incorporating the Geneva Convention definitions of war crimes (75 U.N.T.S. 287), lists 53 acts that it characterizes as war crimes.

While the prosecutor may submit a request to the court to open an investigation on the basis of Ukraine’s acceptance of ICC jurisdiction, a more expeditious method is to begin an investigation based on a referral from one or more states parties. (Rome Statute arts. 14–15.) Support for an investigation began as early as March 1, 2022, with the Canadian minister of foreign affairs submitting a referral on behalf of Canada for an investigation into war crimes related to the war in Ukraine. As of March 2, 2022, 39 states parties had submitted referrals regarding the situation in Ukraine. The chief prosecutor began an investigation on the basis of the referrals.

Ukrainian Declarations to the ICC Regarding Investigations

Before the February 2022 invasion of Ukraine by the Russian Federation, the ICC had been involved with investigations in Ukraine. In 2014 the Verkhovna Rada (Ukrainian legislature) recognized the jurisdiction of the ICC under articles 11 and 12 of the Rome Statute with regard to acts taken by then Ukrainian President Viktor Yanukovych during protests between November 30, 2013, and February 22, 2014 (Verkhovna Rada Declaration to the ICC, 2014), in which alleged crimes against humanity were committed by state actors. In 2015, the Verkhovna Rada issued a new declaration based on actions taken by the Russian Federation. (Ukraine Art. 12 Declaration, 2015.) The 2015 declaration alleged that acts were committed by two Russian-backed terrorist organizations operating in the self-proclaimed Donetsk People’s Republic and the Luhansk People’s Republic. These areas were specifically targeted by an executive order signed by President Biden on February 21, 2022. While the two previous situations are related to the ICC’s March 2022 investigation, they are distinguishable due to the involved actors: the initial 2014 investigation was related to Ukrainian state actors, while the 2015 investigation involved Russian-backed organizations.

Background to the Conflict: 2013–2021

According to the ICC prosecutor’s statement, the scope of the current investigation would cover “allegations of war crimes, crimes against humanity or genocide” committed by anyone in the territory of Ukraine “from 21 November 2013 [when protests broke out in the country over competing proposals for a European Union (EU) economic association and a Russian customs union] onwards.” The November protests grew into massive demonstrations against the pro-Russian government in Kyiv’s Maidan (Independence Square) that remained largely peaceful for two months until February 2014, when they erupted into deadly clashes between pro-EU demonstrators and Ukrainian government security forces. These were followed by further violent clashes between pro- and anti-Russia activists in largely ethnic-Russian Crimea and, ultimately, the Russian military seizure and annexation of Crimea in March 2014. In April 2014, the war in the eastern, largely ethnic-Russian region of Donbas began between pro-Russian separatists and the now pro-West Ukrainian government, with parts of two regions — Donetsk and Luhansk —declaring themselves independent republics. Since then, fighting and bombings in eastern Ukraine have continued, with periods of truce and ceasefires alternating with outbreaks of fighting.

The Current Conflict and Invasion

On April 1, 2021, Russia reportedly began massing troops on Ukraine’s borders as a response to Ukrainian “provocations,” and on April 6, Ukrainian President Volodymyr Zelensky declared that he believed joining NATO was the only way to end the war in Donbas and that he was in favor of Ukraine joining the EU. From December 2021–January 2022, Russia continued mobilizing troops and conducted another large-scale military exercise on the Ukraine border, with Russian President Vladimir Putin demanding security guarantees, including tight restrictions on U.S. and NATO political and military activities and a ban on NATO expansion. In January 2022, the Biden administration rejected Russia’s insistence that Ukraine never be accepted into NATO and proposed new parameters for security in the region. U.S. and EU threats of sanctions against Russia and intense diplomacy in January and February failed to secure an agreement, however, and on February 20, Putin recognized the independence of Donetsk and Luhansk and deployed Russian forces as “peacekeepers” there. On February 24, Russian forces invaded Ukrainian territory.

Recent Allegations of War Crimes