Results of the Office of the Prosecutor General's Work with the International Criminal Court

Cooperation with the International Criminal Court (hereinafter – ICC, Court) began for Ukraine in 2014, when the Verkhovna Rada of Ukraine submitted a statement to the ICC on February 25, 2014, requesting recognition of its jurisdiction regarding crimes against humanity committed by high-ranking officials of the state, which led to particularly grave consequences and the mass killing of Ukrainian citizens during peaceful protests from November 21, 2013, to February 22, 2014 (the so-called Maiden case).

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The International Criminal Court is an international institution established under the Rome Statute, which began operations in 2002.

The ICC investigates and prosecutes cases against individuals accused of the most serious crimes: genocide, war crimes, crimes against humanity, and the crime of aggression.

Ukraine signed but did not ratify the Rome Statute, and therefore is not a participant in the ICC. Consequently, our state utilized the mechanism provided in paragraph 3 of Article 12 of the Rome Statute for recognizing the Court's ad hoc jurisdiction regarding specific crimes committed during a specific period of time.

On April 25 of the same year, ICC Prosecutor Fatou Bensouda officially opened a preliminary examination of the situation in Ukraine.

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During the preliminary examination procedure, the Office of the ICC Prosecutor must determine whether there is sufficient evidence of crimes of sufficient gravity that fall under the jurisdiction of the ICC and whether there is a proper national investigation into such crimes. The Office of the ICC Prosecutor must also establish whether the opening of its own investigation would serve the interests of justice and the interests of victims.

If the requirements for initiating an investigation are not met or the situation/crimes do not fall under the jurisdiction of the Court, the Office of the ICC Prosecutor cannot initiate an investigation.

On February 4, 2015, the Verkhovna Rada of Ukraine adopted a Resolution "On the Statement of Ukraine's Recognition of the Jurisdiction of the International Criminal Court Regarding Crimes Against Humanity and War Crimes Committed by High-Ranking Officials of the Russian Federation and Leaders of Terrorist Organizations of the DPR and LPR, Which Led to Particularly Grave Consequences and the Mass Killing of Ukrainian Citizens."

By this Resolution, Parliament instructed the Cabinet of Ministers of Ukraine and the Office of the Prosecutor General (then – the General Prosecutor's Office of Ukraine) to gather the necessary materials and proper evidence base for addressing the International Criminal Court.

On September 29, 2015, the ICC Prosecutor expanded the preliminary examination of the situation in Ukraine to include the situation regarding the aggression of the Russian Federation.

Since then, the work of the prosecution authorities in cooperation with the ICC regarding events related to the armed conflict between Ukraine and the Russian Federation has begun.

Established in January 2020 within the Office of the Prosecutor General, the Department for Supervision in Criminal Proceedings Regarding Crimes Committed in the Context of Armed Conflict (hereinafter – the Department) is the first specialized structural unit of the authority authorized to cooperate with the International Criminal Court (previously, these issues were handled by up to 5 units of the authority). It includes prosecutors with experience in investigating crimes related to armed conflict and cooperation with international judicial institutions over the past 5 years.

In order to collect evidence of war crimes, crimes against humanity, and to ensure interaction with the Office of the ICC Prosecutor, a working group was established at the beginning of 2020 within the Office of the Prosecutor General based on the Department, which ensures the collection, analysis, and systematization of data for preparing reports to the Office of the ICC Prosecutor.

Since 2015, 21 information reports regarding the commission of war crimes and crimes against humanity by representatives of the Russian Federation in Crimea and eastern Ukraine have been sent to the Office of the ICC Prosecutor, 10 of which have been sent since the Department began its work (6 regarding Crimea, 4 regarding the east).

In particular, regarding the events near Ilovaisk, the Department has prepared 2 information submissions to the Office of the ICC Prosecutor:

- regarding the facts of treacherous murder and wounding of individuals in the Donetsk region (events in the area of Ilovaisk on August 29, 2014, events in the area of Donetsk International Airport on January 19-20, 2015);

- regarding the facts of extrajudicial executions (murders) of Ukrainian Armed Forces servicemen by representatives of the armed group "Cossack Union 'Oblast of the Don Cossacks'" during the fighting in 2014-2015. Among the victims were also Ukrainian servicemen captured during combat operations in the area of Ilovaisk in the Donetsk region.

The Department has established effective communication with the Office of the ICC Prosecutor and provides additional information on a regular basis.

On December 11, 2020, the ICC Prosecutor announced the completion of the preliminary examination procedure regarding the situation in Ukraine and the existence of grounds for initiating a full investigation into crimes committed in connection with the armed conflict in Crimea and eastern Ukraine. The next step should be the Prosecutor's appeal to the Pre-Trial Chamber of the ICC for permission to initiate a full investigation into the situation in Ukraine.

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According to Article 15 of the Rome Statute, the Prosecutor may initiate an investigation proprio motu, that is, on their own initiative, based on information about crimes that fall under the jurisdiction of the Court.

If the Prosecutor concludes, based on the analysis of the collected information, that there are sufficient grounds for conducting an investigation, they will appeal to the Pre-Trial Chamber for authorization to conduct the investigation.

If the Pre-Trial Chamber, after reviewing the request, concludes that there are sufficient grounds for conducting an investigation and that the case falls under the jurisdiction of the Court, it grants authorization to begin the investigation. A refusal by the Chamber to grant authorization for the investigation does not preclude the possibility of the Prosecutor submitting a subsequent request based on new facts or evidence related to the same situation.