On 1 January 2025, Ukraine officially became a State Party of the ICC Statute, including the Kampala Amendment on the Crime of Aggression. Ukraine is the 20th State in the Eastern Europe region to become a member of the world’s only comprehensive system for international criminal justice. Armenia was the last state from this region to join the ICC in 2024, extending the jurisdiction of the ICC to some of the region’s most critical situations in terms of core international crimes.
“Although the ICC already had jurisdiction in Ukraine to prosecute war crimes, crimes against humanity, and genocide based on Ukraine’s declarations to that effect, Ukraine becoming a regular member of the ICC system for justice sends a strong message,” said Berit Lindeman, Secretary General of the Norwegian Helsinki Committee. “Ukraine now belongs to a 125-member strong family of states that have committed to adhere to ICC principles and values and accept its jurisdiction on its territory and for its nationals.”
Ukraine twice exercised its prerogatives to accept ICC jurisdiction over alleged international crimes in its territory under Article 12(3) of the ICC Statute. The first declaration lodged by Ukraine accepted ICC jurisdiction from 21 November 2013 to 22 February 2014. The second declaration extended this period on an open-ended basis from 20 February 2014 onwards.
After protracted political discussions and campaigning by Ukrainian civil society, international organisations, and Ukraine’s allies, Ukraine ratified the ICC Statute on 21 August 2024. Becoming an ICC member is also an obligation under Ukraine’s association agreement with the EU. On 25 October 2024, it deposited its instrument of ratification, and the Statute officially entered into force on 1 January 2025.
Need for strengthening Ukrainian legislation
“Becoming part of the ICC justice system should be swiftly followed up by implementing legislation,” said Gunnar M. Ekeløve-Slydal, Deputy Secretary General. “We’re not convinced that the recently introduced draft law On Criminal Liability for International Crimes represents the best way forward. Ukrainian politicians should listen to legal experts and civil society organisations to create a uniform system, in line with the ICC Statute.”
Much is at stake for justice in Ukraine. There are enormous backlogs of war crimes cases due to Russia’s brutal invasion of the country. Even though Ukraine’s allies and international organisations support justice efforts, Ukrainian authorities and civil society bear the most significant burden. Therefore, Ukrainian laws, regulations, and practices must adhere to international standards to ensure efficient and high-quality justice.
The ICC has so far issued arrest warrants against six Russian leaders, including President Vladimir Putin, former Minister of Defence Sergei Shoigu, three military leaders, and the Commissioner for Children’s Rights. The UN, The OSCE, and other international organisations have concluded that Russia has committed war crimes and crimes against humanity in Ukraine.
“With nearly 150 000 war crimes cases to process, and with the ICC and other states being able to handle just a small fraction of the total amount of cases, Ukraine needs a realistic strategy to deal with an ever-increasing caseload”, said Lindeman. “We think that publicised criteria for selecting cases are essential in this context, as well as Ukraine’s allies providing support to Ukrainian authorities and civil society to document and prepare cases.”
The Norwegian Helsinki Committee (NHC) supports justice efforts by Ukrainian civil society organisations, such as Truth Hounds, Media Initiative for Human Rights (MIHR), The Human Rights Centre Zmina, and other Ukraine 5 AM Coalition members. Ukrainian civil society plays a vital role in documenting war crimes and filing cases for criminal prosecution or sanctions.
NHC’s comprehensive approach to documentation was recently presented at a side event with some of its Ukrainian partners at the ICC Assembly of States Parties in the Hague. The approach includes equipping local civil society organisations to participate in documentation projects and applying a fact-based approach informed by legal criteria rather than political concerns – which depends on IT tools, such as the Investigation Documentation System (I-DOC) by CILRAP-CMN.
Special Tribunal for aggression
While the ICC, Ukrainian courts and courts in states that exercise universal jurisdiction can hear war crimes and crimes against humanity cases, the crime of aggression represents a unique problem because of jurisdictional restrictions. Neither national courts in Ukraine nor other states nor the ICC can hear cases against the Russian leadership for its blatant disregard of the UN Charter’s prohibition of the use of force (Article 2(4)) and its ongoing crime of aggression. Therefore, during the last two years, Ukraine and its allies have been discussing how to establish a special tribunal on the crime of aggression.
“Due to disagreements on whether to establish an international tribunal, as Ukraine wants, or a hybrid tribunal, as some Western countries prefer, negotiations have taken too long”, said Ekelove-Slydal. “On a positive note, there are signs that the discussions are progressing. We want to see tangible results in 2025.”
Alain Berset, Secretary General of the Council of Europe, recently announced that practical progress will be made in April 2025 towards establishing the tribunal. A 22 November 2024 statement of the Core Group of States on the Establishment of the Special Tribunal for the Crime of Aggression against Ukraine referred to progress in drafting a bilateral agreement between Ukraine and the Council of Europe on the establishment of the tribunal, its statute, and an Extended Partial Agreement, which will define the conditions for the tribunal’s funding.