Ukraine Ratifies the Rome Statute – The 28th Member-Country-to-be?

Today, the Ukrainian Parliament has successfully ratified the Rome Statute. This ratification implies an effort to join the International Criminal Court (ICC), paving the way for EU membership. Let’s conduct a quick analysis and a short contextualization.

Source: https://www.ukrinform.net/rubric-polytics/3897261-ukraines-parliament-ratifies-rome-statute.html

The ICC- What is it for?

The ICC is one of the international institutions that prosecute beyond borders. If a country assumes or experiences misconduct regarding international (warfare) law, the ICC is the judiciary instance. In contrast to the International Court of Justice (ICJ), the ICC does not prosecute states but individuals (e.g. it does not file allegations against Russia but Putin).

The ICC has 124 member states, including all EU countries. Notably, the USA and Russia, as well as China, India, and Israel, are not members. Therefore, these countries have no contractual obligation to follow the ICC’s rulings and theoretically and practically ignore its judicial decisions.

Why did the Ukraine join now?

Over the past months, we have observed a lot of hesitation in Ukraine’s efforts to join the ICC. One of the concerns is that an ICC membership could disadvantage or penalize the Ukrainian soldiers and military. One of the reasons for this concern is Russia’s actions on the international legal stage: In 2022, as a justification for the invasion of East Ukraine, Russia filed a lawsuit at the ICJ against Ukraine, accusing Ukraine of genocide. While the process is still ongoing, so far, there is no profound evidence of genocide committed by Ukraine. However, this accusation explains Ukraine’s hesitation to join the ICC, fearing to be played with wrongful allegations as a legal strategy from the Russian side. Meanwhile, a Ukrainian senior presidential advisor stated that these fears are unfounded but part of a disinformation campaign.

Additionally, Ukraine’s ratification process highlighted the importance of Article 124. This so-called Transitional Provision provides a judicial shield for newly joined member states, protecting them from prosecuting crimes committed by their nationals or on their territory. With this article, Ukraine is protected from Russian attempts of (wrongful) prosecution as a strategic tool for up to seven years.

With the further war escalation we can witness, this membership is a meaningful and valuable legal tool for Ukraine, on the one hand, to prosecute Russians further and, on the other hand, to find legal protection under the shield of the ICC.

What can we expect from Ukraine’s membership in the ICC?

Perhaps surprisingly for some, Ukraine’s ICC membership does not depict a judicial-political quantum leap. In fact, Ukraine has cooperated with the ICC for many years already, providing evidence for and supporting the prosecution of Russian (war) criminals, including Putin himself. Ukraine’s membership might now facilitate this already ongoing cooperation, reducing legal hurdles, clarifying Ukraine's legal situation, channeling resources, and installing legal responsibilities.

On a different but related page, we must discuss EU membership. While Ukraine’s membership in the ICC does not guarantee EU membership, and both institutions, EU and ICC, are legally completely separated, the ICC is a primarily Western forum. Hence, membership in it affirms Ukraine’s ambitions towards the West. Also, ICC membership is one of the conditions all current 27 EU member countries must fulfill. Thus, Ukraine’s ICC membership can be interpreted as another big step towards EU membership.