Why Ukraine’s ousted president won’t be tried in The Hague.
- By David BoscoDavid Bosco, a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
For the last few days, Ukraine’s parliament has been hurriedly wiping away the last vestiges of Viktor Yanukovych’s presidency. Now many parliamentarians would like to ship Yanukovych himself off to The Hague for trial. On Tuesday, parliament voted to ask the International Criminal Court (ICC) to try the former president and two of his associates for the killing of several dozen protesters during recent protests and street violence. "If we don’t take this decision, we will not move forward," one deputy argued.
There are plenty of reasons why the new government might like to see the former president before the ICC. An international investigation would bolster the claim, made insistently by Yanukovych’s opponents, that the old regime was criminal, while simultaneously avoiding the messiness of a domestic trial. And if Yanukovych flees Ukraine — or has already fled — an ICC arrest warrant would drastically limit his travel options.
But while many in Kiev may be convinced that international justice is warranted, the ICC itself almost certainly will not agree.
At first glance, Ukraine would seem to have a decent chance of getting the ICC involved. The country may not be an ICC member, but the new government is within its rights to give the court jurisdiction. The ICC’s founding document, the Rome Statute, grants all states the ability to give the court jurisdiction in certain cases, even without becoming full members. That provision has been used in the past by the Ivory Coast and Palestine. A formal request from Ukraine — which it appears not to have issued yet — would trigger what the ICC calls a "preliminary examination." During that phase, the ICC prosecutor’s office would determine whether relevant crimes had been committed and mull over whether a full investigation is warranted.
But that’s where Ukraine’s bid would run into trouble. The ICC only has jurisdiction over a select set of crimes: war crimes, crimes against humanity, and genocide. The first and third categories are very likely excluded already, given the nature of Ukraine’s crisis: War crimes can only occur when a state of armed conflict exists, and it’s doubtful that the protests in Kiev crossed that threshold. Genocide, meanwhile, requires an effort to destroy, in whole or in part, a racial, religious, or ethnic group — also a situation that was (thankfully) absent in Ukraine.
That leaves the category of crimes against humanity, which could apply in Ukraine. If the ICC prosecutor believes that Yanukovych and his associates ordered systematic attacks on civilians, the court might — just might — consider a full investigation.
But there are two other obstacles to an ICC case. First is the question of whether the regime’s crimes crossed the court’s "gravity" threshold. Put simply, the ICC is designed only to investigate the most serious crimes in the world. And even a bloody crackdown on protesters might not rise to that level. Several years ago, the court’s judges split on whether the deaths of more than 1,000 people in Kenya in a terrible bout of post-election violence were grave enough to merit ICC attention. Ultimately, the court decided to take the Kenya case, but the disagreement suggests that the court’s gravity threshold is much higher than Ukraine’s toll.
The second complication is the court’s doctrine of "complementarity," which provides that the court should only investigate when national courts are unable or unwilling to do so. With Ukraine’s political situation in flux — and as outrage about Yanukovych’s opulent lifestyle mounts — the Ukrainian public may insist on a domestic investigation and trial of its former leader. If the ICC prosecutor believes that the country is moving in that direction, the court will almost certainly keep its distance. Moreover, for all its problems, Ukraine boasts a judiciary more capable of managing a domestic trial than other countries the ICC has worked in.
In addition, the political context surrounding Ukraine would probably militate against a full ICC investigation. Russia would not look kindly on an international investigation of its favorite Ukrainian politician, and the ICC, up until now, has been hesitant to ruffle the feathers of major powers. For instance, it never opened a full investigation into the 2008 Russia-Georgia conflict, and it has not touched several situations where the United States has strong interests, including Iraq, Afghanistan, and Colombia.
That said, there is one political factor that might push the court toward a Ukraine investigation: geography. Many African states have harshly criticized the ICC for only investigating and indicting Africans. (Every case to date has come from the African continent.) A Ukraine investigation would finally allow the court to prove that it is capable of administering justice elsewhere.
Yet it is more than likely that concerns about perception won’t compete with the other legal and political obstacles to a full investigation. In short, the path to justice for the victims of Ukraine’s violence does not run through The Hague.