The International Criminal Court has now launched an investigation into Russia’s invasion of Ukraine. However, neither Ukraine nor Russia are State Parties to the Court’s Treaty, calling into question the jurisdiction of the Court.

Last month, the ICC Prosecutor, Karim A.A. Khan QC, announced that an investigation would be launched into Russia’s invasion of Ukraine after a preliminary examination.

It was concluded that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine. To expedite the process, the largest State Party referral in the history of the ICC was made, allowing the Prosecutor to proceed to the investigation stage without judicial approval first.

However, neither Ukraine nor Russia are parties to the Rome Statute, the Court’s founding Treaty, calling into question of the jurisdiction of the Court. Usually, only crimes committed by State Parties or nationals of State Parties fall within the jurisdiction of the Court. However, if the country in question accepts the jurisdiction of the ICC in some way, they can refer crimes to the Court, or the ICC Prosecutor can decide on his own initiative to investigate the crimes. The United Nations Security Council can also step in, however as Russia sits as a permanent member, this decision could be vetoed.

The Government of Ukraine lodged two declarations under Article 12(3) of the Rome Statute which accepts the jurisdiction of the ICC in relation to alleged crimes committed on its territory from 21 November 2013 until 22 February 2014, and then again from 20 February 2014 onwards, with no end date.

The investigation will therefore look at evidence as far back as 21 November 2013, encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person. This date is key as it captures the beginning of Euromaidan, where protests in Ukraine were triggered by the Ukrainian government’s sudden decision not to sign the EU-Ukrainian Association Agreement, soon followed by the Russian annexation of Crimea.

Evidence will be captured contemporaneously, rather than retrospectively, in order to improve chances of success for any future prosecutions. The ICC have even launched an online portal to gather evidence and encourage individuals with any information or evidence to get in contact. Evidence gathered so far includes testimonies, satellite imagery, interviews with victims and witnesses and forensic evidence. 

However, the ICC does not have jurisdiction to arrest suspects once the investigation has concluded. This means the Court will have to rely on either the voluntary transfer of suspects to the Hague or help from other countries to arrest and transfer suspects. This may cause difficulties if the investigation progresses to the prosecution stage, as Russia is not a party to the Rome Statute and does not have to comply with the ICC’s requests under international law. Furthermore, the suspects under investigation will likely include high ranking individuals and the head of state, making it even more unlikely for Russia to accept the jurisdiction of the Court.

The ICC cannot try someone who is absent from the hearing, as it is not permitted by the Rome Statute. This was confirmed in 2020, when the Prosecutor of the ICC submitted that Abdallah Banda’s trial could not proceed in absentia. However, the Appeals Chamber of the International Criminal Court held in the case of William Samoei Ruto that the temporary absence of an accused person from trial is permissible to fulfil extraordinary public duties at the highest national level.

The process from investigation to conviction of a potential suspect can be lengthy, lasting several years. An unprecedented amount of electronic data and evidence may also draw-out the investigation and potential prosecution into crimes committed in Ukraine even further. This is not unusual for the ICC, as seen in the case of Nyiramasuhuko et al, where it took around twenty years for the final resolution of proceedings.