Do the Participants of the ATO Risk Facing a Hague Tribunal?

Translated by Ollie Richardson & Angelina Siard


After the voting on the Law on the Reintegration of Donbass, a discussion started on whether the International Criminal Court can threaten Ukrainian military personnel…

Not long ago the former representative of Ukraine at the Minsk negotiations on Donbass Roman Bessmertny stated that according to existing laws as soon as the President and the political situation in the country will change, “all ATO participants will be jailed under the articles on the illegal seizure of weapons, group robbery, and banditry“.

Earlier, the President’s representative in the Verkhovna Rada, People’s Deputy from the Bloc of Petro Poroshenko, and wife of the Prosecutor-General Irina Lutsenko spoke about this. She stated that the law on the de-occupation of Donbass – which was adopted in the first reading – must defend Ukrainian military personnel from the International Criminal Court in the Hague.

At the same time, the People’s Deputy from “Fatherland” Igor Lutsenko assumes a different version of events.

“If the power in Ukraine radically changes, there will be no barriers in front of the punishment of Ukrainian military personnel who committed war crimes during anti-terrorist operation. For this purpose the appeal of the Cabinet of Ministers of Ukraine to the International Criminal Court – a statement about the recognition of the jurisdiction in the case of war crimes committed on the territory of Ukraine since April, 2014 – will be enough. Who now can give a guarantee that there will not be such an appeal?” wrote Lutsenko in his article for the newspaper “Zerkalo Nedeli”.

“Strana” found out if the Ukrainian military personnel who participate in the anti-terrorist operation risk being brought to international legal responsibility.

Why the SBU disowned the leadership of the anti-terrorist operation

The head of the SBU Vasily Gritsak stated recently that he has no powers to lead the ATO in Donbass. He reported that the ATO is an army operation, which must be led by the army HQ controlling the military units.

This statement of the head of SBU is a bit discouraging. After all, according to Article 12 of the Law “On Combatting Terrorism” the ATO is led by the operational HQ, which is headed by the leader of the Anti-terrorist center (ATC), which in turn was created precisely in the Security Service of Ukraine. The leader of the HQ defines the limits of the area of carrying out the ATO, makes decisions about the use of forces and means raised for its carrying out:

The head of the ATC at the SBU is currently the Colonel-General Vitaly Malikov – the first deputy chairman of the SBU. He was appointed to this position by the decree of the President of June 23rd, 2015.

And before Malikov the position of the head of the ATC at the SBU was held by the current head of the SBU Vasily Gritsak.

He was appointed by the decree of July 7th, 2014, back then he was the first deputy of the head of SBU Valentyn Nalyvaichenko:

So Vasily Gritsak’s statement that the ATO is an army operation, which should be lead by the army HQ, is not entirely correct.

At least, until the moment the corresponding changes to the Law “On Combatting Terrorism” are introduced.

That’s why military personnel of the Armed Forces, the National Guard, and other armed groups that participate in ATO – from a legal point of view – are subordinated not to the General Staff and the leadership of their structures, but to the ATC at the SBU.

And even the Chief of the General Staff of Armed Forces Viktor Muzhenko within the framework of the ATO is only the first deputy head of the ATC at the SBU:

What the Constitution says

The shift of responsibility for leading the ATO from the SBU to the army can entail serious legal problems. According to Article 17 of the Constitution, the Armed Forces of Ukraine and other military formations can’t be used by anybody to restrict the rights and freedom of citizens. On the territory of Ukraine the creation and functioning of any armed formation that isn’t provided by the law is forbidden:

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As is known, in the ATO zone both the army and other military formations are used. Thus, cases of the violation and restriction of the rights and freedom of citizens – including the right for life, freedom, property, and many others – are known.

The order for the use of the Armed Forces in the ATO zone also differs from what is established in the Constitution. According to Article 106 of the Constitution, the President is the Supreme Commander of the Armed Forces of Ukraine and administers in the spheres of national security and defence of the State.

In the event of armed aggression he must make a decision about the use of the Armed Forces and other lawful military formations. And approval of such a decision of the President on the use of the Armed Forces and other military formations in the event of armed aggression, according to Article 85 of the Constitution, belongs to the powers of the Verkhovna Rada:

I.e., in the event of aggression, for the lawful use of the Armed Forces and other military formations, at first the special decision of the President must be made, which then the Verkhovna Rada must approve.

However, the ATO was started according to the decision of the National Security and Defense Council of Ukraine (NSDC) from April 13th, 2014. The text of this decision is secret. According to the information in the media, it is precisely there that the decision about the attraction for participation in the ATO of the Armed Forces is contained.

Then the decision of National Security and Defense Council of Ukraine was enacted by the decree of the acting President from April 14th, 2014.

As a reminder, back that then duties of the President were fulfilled by Aleksandr Turchynov:

It turns out that there wasn’t any special decision of the President on the use in the ATO of the Armed Forces and other military formations, and that the Verkhovna Rada didn’t approve it.

Therefore, the procedure established by the Constitution for the use of the Armed Forces wasn’t observed. Although the Ukrainian authorities repeatedly declared the existence of aggression by the Russian Federation.

In June, 2014, the Verkhovna Rada added to Article 13 of the Law “On Combatting Terrorism” the norm that according to the decision of the leadership of the Anti-terrorist Center at the SBU it is possible to attract personnel, military equipment, and the weapons of law enforcement structures – the Ministry of Internal Affairs, the Ministries of Defence, border guards, etc – for a large-scale and difficult ATO.

Similar additions were included in Article 1-1 of the Law “On the Armed Forces”. However, the corresponding changes weren’t made to the Constitution.

It is clear that the decision of the leadership of the ATC at the SBU in its legal effect can’t replace the decision of the President approved by the Verkhovna Rada. As we see, the President and the Verkhovna Rada didn’t take this responsibility upon themselves.

That’s why the leadership of the ATC at the SBU, and also the military personnel who executed the orders of this structure, bear responsibility for the use of the Armed Forces during the ATO, and, respectively, for the consequences of such use.

What is the Hague tribunal

The official name of the Hague tribunal, which Ukrainian politicians frighten participants of the ATO with, is the International Criminal Court (in abbreviated form – ICC). It functions under the auspices of the UN since 1998.

The ICC was created because the special international tribunals operating in the 1990’s (across the former Yugoslavia and across Rwanda), showed to the international community the need for the creation of a constantly operating court for the solving of cases connected to genocide, war crimes, and crimes against humanity.

The ICC in its work is guided by the Rome Statute adopted on July 17th, 1998. The residence of the court, according to Article 2 of the Rome Statute, is the city of Hague in Holland. That’s why in the press this court is called often “The Hague tribunal”.

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Ukraine signed the Rome Statute in 2000, but still hasn’t ratified it. But according to Article 8 of the Agreement on Association between Ukraine and the EU, Ukraine assumed the obligation to ratify the Rome Statute:

During ratification of the Agreement on Association with the EU, the Verkhovna Rada undertook the ratification of the Rome Statute after including changes to the Constitution of Ukraine. Such changes were made to the Constitution in 2016: according to Part 6 of Article 124 Ukraine can recognize the ICC’s jurisdiction.

However people’s deputies delayed the coming into effect of this norm of the Constitution until June 30th, 2019. After this date there will be no formal obstacles any more for the ratification of the Rome Statute.

What crimes does the Hague tribunal prosecute for

The jurisdiction of the ICC, according to Article 5 of the Rome Statute, extends to the following crimes:

a) The crime of genocide;

b) Crimes against humanity;

c) War crimes;

d) The crime of aggression.

According to Article 7 of the Rome Statute, in particular, crimes against humanity are considered as:

• murder;

• extermination – the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

• imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

• persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, or other reasons;

• enforced disappearance of persons, which means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

The extensive list of possible war crimes is listed in Article 8 of the Rome Statute. Among them – the taking of hostages, intentionally directing attacks against the civilian population, Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected (provided that they aren’t the military objectives), etc.

As we see, a lot of things from what is going on in the ATO zone can be attributed to the listed cases.

Besides this, according to Article 29 of the Rome Statute, no limitation period is applied to crimes falling under the ICC’s jurisdiction:

Does the Hague pose a risk already now?

It isn’t excluded that the ratification of the Rome Statute already has no special sense. The fact is that in February, 2015, the Verkhovna Rada adopted a statement about the recognition of the jurisdiction of the International Criminal Court.

However, back then parliamentarians limited the sphere of recognition only to those crimes that, in their opinion, were committed by the leaders of the Russian Federation, and also the so-called “DPR” and “LPR”. And for this purpose the time frames were also limited – from February 20th, 2014, until the adoption of the statement, i.e. before February 4th, 2015.

Then the Ukrainian Ministry of Foreign Affairs in September, 2015, transferred to the ICC a statement about the recognition of its jurisdiction. The statement was submitted on the basis of Part 3 of Article 12 of the Rome Statute, which allows a State that didn’t ratify the Rome Statute to recognise the ICC’s jurisdiction. The text of the statement was published on Twitter by the Minister of Foreign Affairs Pavel Klimkin:

According to the associate professor of international law at the Institute of international relations of the Taras Shevchenko National University of Kiev, the President of the European Committee for the Prevention of Torture Nikolay Gnatovsky, recognition of the jurisdiction of the ICC occurred not so much on the basis of the statement of the Verkhovna Rada, which was only the first step, but on the basis of the statement that the Ministry of Foreign Affairs – under the President’s sanction – on behalf of Ukraine presented to the secretariat of the ICC.

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This statement significantly differs in its content to the one that was adopted by the Verkhovna Rada.

In the second paragraph of the statement of the Ministry of Foreign Affairs the following is said: “Mindful of this fact on behalf of the State of Ukraine I have the honor to declare that in conformity with Article 12. paragraph 3. of the Rome Statute of the International Criminal Court Ukraine accepts the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the perpetrators and accomplices of acts committed in the territory of Ukraine since 20 February 2014”.

As we see, in the statement of the Ministry of Foreign Affairs of Ukraine the recognition of the ICC’s jurisdiction isn’t limited only to the crimes of the citizens of Russia against Ukraine. Here a request to consider the situation in Ukraine without in advance defined culprits is contained. And the term from which the Ministry of Foreign Affairs suggested to consider crimes is also not limited “from above” – since February 20th, 2014 and without an expiration date, i.e. for an indefinite term.

We will note that the ratification of the Rome Statute is being delayed because of the fear that the Ukrainian military personnel will be made responsible for their actions committed in 2014-2015 during active military operations. Thus, they refer to Article 24 of the Rome Statute according to which it doesn’t apply to actions committed before the entry into force of the Statute.

However the Ukrainian Ministry of Foreign Affairs, in fact, already recognized the ICC’s jurisdiction across all the territory of Ukraine since February 20th, 2014, without waiting for ratification by the Verkhovna Rada. And now the ICC can open proceedings concerning events in Ukraine either with the statement of any participating country (Ukraine so far isn’t a participant), at the request of the UN Security Council, or at the initiative of the prosecutor of the ICC. In the case of the latter, the prosecutor of the ICC, according to Article 15 of the Rome Statute, can independently instigate an investigation on the basis of information about crimes falling under the jurisdiction of the Court.

In general, the wide use of the Armed Forces during the ATO has doubtful legal grounds. And an investigation by the International Criminal Court can begin even without the ratification of the Rome Statute by the Verkhovna Rada. It isn’t excluded that it is exactly this possibility that Roman Bessmertny and Irina Lutsenko warned about.

At the beginning of 2016, as UNIAN reported, similar fears were stated by the deputy of the chief of staff of the President of Ukraine – the secretary of the constitutional commission Aleksey Filatov. Answering the question of the judge of the constitutional court Nikolay Melnik he declared: “The recognition of the jurisdiction of the International Criminal Court will bear both certain potentially positive consequences and certain risks for Ukraine, in particular, from the point of view of the Ukrainian military personnel who are compelled to participate in the military conflict”.

Probably, it is exactly for this purpose that in the law on the reintegration of Donbass – adopted at the first reading (bill No. 7163) – attempts are being made to solve a legal collision in respect of the use of the Ukrainian troops in Donbass. However, it can only solve the problem from the moment the law enters into force.

Everything that occurred before this will leave the theoretical opportunity to make a claim in the International Criminal Court if the political line of the Ukrainian power suddenly changes. Or if certain powerful international players will be interested in this.


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