On 21 August 2024, the Verkhovna Rada of Ukraine ratified the Rome Statute of the International Criminal Court (hereinafter — the ICC). It had taken Ukraine 24 years to reach this point, despite Russia’s armed aggression since 2014, and in line with its obligations under the EU-Ukraine Association Agreement.
In early December 2024, the necessary draft laws for the implementation of the Rome Statute were also adopted: No. 11538 on criminal liability for international crimes The grounds and limits of criminal liability for international crimes, the list of crimes that are considered international, etc. , and No. 11539 amending the Criminal Code and the Criminal Procedure Code of Ukraine in connection with the adoption of the Law on Criminal Liability for International Crimes. In fact, as of 1 January 2025, Ukraine became a full member of the IIC, becoming the 125th state party to the Rome Statute.
The issue of ratification had been raised regularly at all levels of government with calls to reconsider Ukraine’s position and take the step that will finally bring it closer to civilised and developed states that recognise the jurisdiction of the ICC and adhere to international law norms.
What is the Rome Statute? What does its ratification give Ukraine? Why has it taken so long to ratify it? We explain further.
What is the Rome Statute and what is it for?
The Rome Statute is the international treaty that established the ICC. This statute is currently the key international legal document that defines four categories of international crimes: 1) war crimes, 2) crimes against humanity, 3) genocide, and 4) crimes of aggression. By defining these categories of crimes, the ICC is the only international judicial institution with jurisdiction to prosecute and qualify these crimes on the principle of individual criminal responsibility.
The ICC operates on the principle of complementarity, i.e. the case is referred to the Court, and the ICC Prosecutor opens an investigation only in circumstances where the state is either objectively unable to carry out the investigation and justice or unwilling to do so Refuses to consider cases in court and bring criminals to justice. . Therefore, if crimes are properly investigated at the national level, the ICC will not initiate its own investigation and trial. For international crimes to be referred to the ICC, it is necessary to ratify the Rome Statute, granting the Court the necessary jurisdiction and authority.
Why did the ratification take 24 years?
Ukraine signed the Rome Statute back in 2000, but as early as 2001, at the request of President Leonid Kuchma, the Constitutional Court of Ukraine considered the constitutionality of the ratification of the document and, referring to the preamble and Article 1 of the Constitution, ruled that the ratification of the Rome Statute was unconstitutional, as such a judicial body is not foreseen by the Constitution.
Further real attempts to ratify the Rome Statute resumed only in 2014 after the start of Russia’s armed aggression against Ukraine and the occupation of the Autonomous Republic of Crimea. However, even these steps resulted only in the adoption by the Verkhovna Rada of declarations of recognition of the ICC’s jurisdiction, which granted the Court limited jurisdiction to investigate crimes committed by Russia in Ukraine.
The next step was the adoption of amendments to the Constitution in 2016 when the wording of Article 124 of the Constitution was revised. Thus, in the new version, Article 124 provides for the possibility of Ukraine to recognise the jurisdiction of the ICC under the conditions defined in the Rome Statute. However, even after that, the Rome Statute was not immediately ratified, as the new constitutional provision was to enter into force on 30 June 2019.
On 3 May 2022, the Verkhovna Rada adopted a law regulating the cooperation of Ukrainian competent authorities with the ICC. This was done to ensure that the Prosecutor could effectively investigate crimes committed since 2014 within the framework of the accepted applications for recognition of the ICC’s jurisdiction.
However, even during the full-scale war, the ratification of the Rome Statute was delayed, allegedly out of concerns that it might become a basis for holding Ukrainian citizens — Ukrainian military personnel — accountable for committing war crimes in the context of the war with Russia. The final ratification took place on 21 August 2024.
Benefits of ratifying the Rome Statute
The obvious advantages of ratifying the Rome Statute include recognition of the ICC’s jurisdiction with the reservation in Article 124 of the Rome Statute, discussed further in this article, full recognition of the ICC’s jurisdiction, which will allow for a full investigation of international crimes committed by Russia against Ukraine, fulfilment of the requirements of the Association Agreement with the EU, and a significant enhancement of Ukraine’s image in the international arena as a state that respects and adheres to international law.
Less obvious advantages include: 1) Ukraine gaining the status of a full member of the ICC with all the rights and obligations provided for by the Rome Statute, 2) the right to participate in the work of the Assembly of States Parties to the Rome Statute, 3) the possibility to submit candidates for the election of judges and prosecutors of the ICC, 4) access to the special trust fund of the Court established to allocate funds for the benefit of victims.
In addition, ratification is an important step towards shaping the legal consciousness of Ukrainians and setting clear priorities and guidelines aimed at complying with international law, following the example of EU member states, conducting quality investigations of international crimes, holding criminals accountable, and achieving justice, as well as preventing the commission of similar crimes in the future.
It should be noted that despite the ratification of the Rome Statute, the crime of aggression remains outside the jurisdiction of the ICC. This situation is caused by the fact that, according to the Kampala Amendments to the Rome Statute, the ICC has jurisdiction over the crime of aggression only if the attacking state (aggressor state) ratifies the Statute or if the UN Security Council refers the situation to the ICC. Accordingly, to investigate the crime of aggression, Ukraine will need to continue working towards the creation of a special international tribunal that will have the necessary jurisdiction.
What about the risks?
The main myth about the Rome Statute was that, if ratified, the Ukrainian military would be held accountable for war crimes committed during the Ukrainian-Russian war. But does this hold true?
Firstly, given the complementary nature of the ICC, the Court would not investigate cases against the Ukrainian military if these cases were properly investigated at the national level. At the same time, such an investigation is a necessary, albeit painful, as Ukraine must investigate and recognise not only crimes committed by Russia but also crimes committed by the Ukrainian military. Otherwise, appeals to international humanitarian law and the need to adhere to general international law, as well as the principle of a rule-of-law democratic state, would be completely unfounded and one-sided. For justice to be established and the consequences of the war to be overcome, it is necessary to properly investigate crimes and demonstrate the readiness of the state to bear responsibility for violations of international law, in contrast to the aggressor state.
Secondly, Ukraine has ratified the Rome Statute with a declaration under Article 124 of the Statute, which means that the ICC will not have jurisdiction under the war crimes category over Ukrainian citizens for 7 years after ratification. Therefore, Ukraine has seven years to properly investigate the crimes at the national level, which will help to avoid the need to refer cases to the ICC.
In the context of the declaration under Article 124 of the Rome Statute, it should be understood that over the previous 10 years of Ukraine’s cooperation with the ICC, the Court has not indicated the need to bring the Ukrainian military to justice for war crimes.
What's next?
The next step is to bring national legislation in line with the Rome Statute and to expect a huge amount of work for the Ukrainian law enforcement system, particularly the prosecutor’s office, as the ratification of the Statute may lead to reclassification and review of those cases that can now be qualified under different articles.
A positive conclusion is that the ratification of the Rome Statute is clearly a progressive and long overdue step by Ukraine, which aligns with its declared goals and principles of development towards European integration.
