International Criminal Court : Prosecutor Karim Khan Opens an Investigation Concerning the Situation in Ukraine

02-03-2022

Grace ATALUI MOKANGO

International Justice and Human Rights Researcher

Global Human Rights Defence

Immediately following his first statement about the current situation in Ukraine, the Prosecutor of the International Criminal Court announced on Monday, 28 February 2022, his decision to open an investigation into the said situation as soon as possible concerning alleged crimes committed there. 

As the Court was created by treaty, which is the expression of the free will of States, in principle, only States Parties to the Rome Statute can refer their situation to the Court. Ukraine, as the Prosecutor recalls in his statement, is not a State Party to the Statute, for this reason, it cannot refer its situation to the Court. However, Ukraine has twice made the declaration of the jurisdiction of the Court under Article 12.3 of the Rome Statute. By this declaration, the State not a party to the Statute accepts the jurisdiction of the Court for the crimes to be tried and cooperates with this latter. The first declaration deposited by the Government of Ukraine recognised the ICC's jurisdiction over crimes allegedly committed on the territory of Ukraine from 21 November 2013 to 22 February 2014. The second declaration extended this time frame indefinitely to cover crimes allegedly committed throughout the territory of Ukraine since 20 February 2014.

Thus, the Prosecutor reveals his intention to include in this investigation: any crime that may be committed by any of the parties involved in the ongoing hostilities on Ukrainian territory. For the Prosecutor, the next challenge is to continue the process of actively seeking evidence and obtaining the authorisation of the Pre-Trial Chamber to open an investigation in this situation. In this regard, he mentions another conventional solution that would facilitate the commencement of the said investigation without the Chamber's authorisation, which is the referral of the situation in Ukraine by another State Party to the Statute. Finally, he reiterates his request for respect of the laws and customs of war: "I call again for restraint and strict adherence to the applicable rules of international humanitarian law". 

Sources and further reading : 

International Criminal Court, Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.”, ( 28 feb 2022),from: https://www.icc-cpi.int/Pages/item.aspx?name=20220228-prosecutor-statement-ukraine

​​International Criminal Court, Rome Statute, from : https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf

International Criminal Court, The first declaration of Ukraine, from  : 

https://www.icc-cpi.int/itemsDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf

International Criminal Court, The second declaration of Ukraine, from : 

https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf#search=ukraine