Why is the ICC hesitating in eastern Ukraine?

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The Ukraine has notified the International Criminal Court of apparent war crimes and crimes against humanity in eastern regions under the control of Russian-backed militias. Ample evidence available to the ICC would support investigation and prosecution for war crimes and crimes against humanity, including numerous reports of severe mistreatment and torture of prisoners. The ICC is conducting the second phase of a preliminary examination to determine whether it has subject-matter jurisdiction over the alleged crimes, but the outstanding violations have darkened the cloud over the institution's credibility. While practical difficulties such as procuring witness testimony may complicate these prosecutions, the ICC is nonetheless compelled by the Rome Statute to pursue a full investigation.

ICC’s Jurisdiction Under the Rome Statute

The ICC has jurisdiction over any states party to the Rome Statute to adjudicate crimes listed in Article 5 of the Statute: (a) genocide, (b) crimes against humanity, (c) war crimes, and (d) the crime of aggression.[1] The ICC also has jurisdiction if and when a state not a party to the Statute accepts the Court’s authority on an ad hoc basis.[2] It may also assume jurisdiction if the state in question is unwilling or unable to prosecute through its domestic judicial system.[3] The ICC can prosecute only individuals -- not groups or states -- for individual criminal responsibility in facilitating or committing a crime.[4]

According to the Statute, a “crime against humanity” includes a number of heinous acts “committed as part of a widespread or systemic attack directed against any civilian population, with knowledge of the attack.”[5] The acts generally fall within the categories of murder, torture, extreme restrictions on liberty such as slavery and other forcible deportations, sexual violence, and persecutions against “identifiable” (e.g. political, national, ethnic) groups. Any other acts intended to cause “great suffering[] or serious injury to body or to mental or physical health” are also included.[6]

War crimes entail breaches of the Geneva Conventions or “[o]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law . . . .”[7] The same generally applies to non-international armed conflicts (with the exception of isolated incidents such as riots). War crimes include willful killing, torture and inhumane treatment, serious bodily injury or injury to health, unlawful deportation or transfer or unlawful confinement, taking hostages, and willfully depriving prisoners of war or other protected persons of the right to fair trial.[8]

The ICC does not have jurisdiction if a state is already investigating or prosecuting the alleged crime. However, it can assume jurisdiction when the state is “unwilling” or “unable” to genuinely do so.[9] Inability generally refers to the absence or partial collapse of an effective domestic judicial system.[10] The Court looks at the state’s ability (with respect to the Rome Statute crime) to make arrests, gather evidence, and “otherwise carry out judicial proceedings.”[11] To determine “unwillingness” to genuinely investigate and prosecute, the ICC considers due process factors such as whether the state has unduly delayed proceedings or attempted to shield suspects, and whether the proceedings are independent and impartial.[12]

Once a crime or case is referred to the Office of the Prosecutor (OTP), the Prosecutor must evaluate the “seriousness of information received” and whether there is “reasonable basis” to proceed with an investigation.[13] The OTP then presents evidence to the Court, and the Pre-Trial Chamber decides whether the Prosecutor can start a formal investigation.[14] The OTP must determine whether the ICC has jurisdiction and if there is “reasonable basis” to proceed with a full investigation.[15]

The Rome Statute is meant to address the range of crimes considered by the international community so serious that their perpetrators cannot go unprosecuted.[16] In order to convict a particular individual, the prosecutor must have evidence sufficient to prove criminal responsibility beyond a reasonable doubt.[17]

Ukraine’s Allegations of Crimes Against Humanity

The Ukraine filed a declaration on April 17, 2014, accepting the ICC’s jurisdiction “for the purpose of identifying, prosecuting and judging the authors and accomplices” of alleged crimes committed on its territory between November 21, 2013, and February 22, 2014.[18] Ukraine filed a second declaration on September 8, 2015, accepting the ICC’s jurisdiction for crimes committed on its territory since February 20, 2014.[19] The declarations alleged that crimes against humanity and war crimes were “committed by senior officials of the Russian Federation and leaders of terrorist organizations ‘DNR’ and ‘LNR’, which lead to extremely grave consequences and mass murder of Ukrainian nationals.”[20] The first declaration prompted Prosecutor Ms. Fatou Bensouda to open a preliminary examination.[21]

Under the Rome Statute such a declaration functions only as formal notice of the state’s acceptance of ICC jurisdiction and does not itself trigger an investigation.[22] The investigation must still be opened through one of the three designated pathways (State Party referral, UN Security Council referral, or authorization of the Pre-Trial Chamber based on information presented by the Prosecutor).[23] The OTP is currently conducting Phase 2 of the preliminary examination, in which the OTP analyzes information on the alleged crimes to determine whether “there is reasonable basis to believe [they] fall within the subject matter jurisdiction of the Court” (emphasis added).[24]

The declarations, as a result, do not preclude the OTP from investigating only Russian Federation and separatist group members. Since the Ukraine has accepted ICC jurisdiction, if violations by Ukrainian nationals are found during investigations, the ICC could potentially decide to also prosecute Ukrainian nationals as perpetrators of Rome Statute crimes. This could occur if the crimes are deemed serious enough to prosecute relative to other violations and if Ukraine is found unable or unwilling to prosecute.[25]

Available Evidence and Application of the Statute

Recent reports by the UN and Amnesty International provide sufficient reliable and detailed information on available evidence to support a full ICC investigations and likely prosecutions.[26] Rome Statute investigations have, however, proved to be inherently problematic. The ICC has encountered difficulties in ostensibly solid cases.[27] December 2014 saw several of the latest examples. In early December, prosecutors had to terminate proceedings due to lack of sufficient evidence against Kenya’s President Kenyatta after the government refused to turn over records or otherwise comply with its Rome Statute obligations.[28] Days later, Prosecutor Fatou Bensouda announced she had no choice but to suspend the protracted ICC investigation in Darfur and “shift resources to other urgent cases.” The Security Council had failed repeatedly to enforce arrest warrants for seven individuals charged with war crimes and crimes against humanity.[29] The Security Council originally referred the case to the ICC in 2005.[30]Sudanese President Omar al-Bashir was among those charged.[31]

The self-proclaimed Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) are rebel separatist organizations operational in eastern Ukraine.[32] DNR controls territory in the southeastern Donetsk region with a population of almost 1.9 million.[33] LNR controls a densely populated section of the far-eastern Luhansk oblast between Donetsk and Russia. According to LNR and Ukrainian estimates, LNR controls territory with a population of more than 1.2 million.[34]

The Ukrainian government and the UN accuse LNR and DNR of numerous human rights violations.[35] The Ukrainian government has classified LNR and DNR as terrorist groups.[36] The government considers its own military actions in the Luhansk and Donetsk regions “anti-terrorist operations.”[37] The UN described a total “lack of any human rights protection for the population under [LNR and DNR] control.”[38] The most recent UN report on the eastern Ukraine situation confirmed ongoing human-rights violations and a continued lack of accountability for those crimes.[39]

Amnesty International personnel interviewed a number of prisoners formerly held in relation to the conflict, many of whom were civilians with no connection to the fighting.[40] Many were targeted only for sympathizing with the opposing side.[41] The victims testified as to numerous and severe forms of torture during their captivity: beatings to the point of bone fracture, electric shocks, stabbing and kicking, sleep deprivation, being hung from the ceiling, threatened with death, denied urgent medical care, and subjection to mock executions.[42] The victims recounted such treatment both by separatists and by militias supporting Ukraine’s sitting government in Kiev.[43] Amnesty found prisoners’ statements consistent with one another.[44] Amnesty was also able to corroborate the statements through hospital records, x-rays of broken bones, photos of injuries, scars, and missing teeth, as well as by other documentary evidence.[45] In some cases, victims were still recovering in hospitals.[46] Several witnesses recounted separatists executing Ukrainian prisoners.[47] Through death certificates and post-mortem photos, Amnesty was able to verify the deaths of at least four prisoners whose executions had been posted on YouTube.[48]

The OTP may consider the Amnesty and UN reports in conducting a preliminary investigation.[49] The OTP can also request further details of specific instances of crimes, physical or documentary evidence held by the organizations, and can call anyone, including NGO representatives, to testify.[50] Protective measures for witnesses and victims are available if security concerns outweigh defendants’ due process interests, but are not guaranteed.[51]

Further complications arise from evidence that both sides of the conflict appear to be mistreating civilian prisoners.[52] Additionally, it is well established that the Russian Federation backs the separatist organizations.[53] Ukraine has also filed four interstate applications (claims) against Russia before the European Court of Human Rights.[54] In its recent derogation notice from the European Convention on Human Rights (ECHR), Ukraine specifically did not characterize the conflict in eastern Ukraine as an “armed conflict.” Rather, it refers to the situation as an “anti-terrorist operation” in Russian-“controlled” and “occupied” regions.[55] The Ukraine identified both regular Russian Federation forces and illegal (Russian-backed) armed groups as armed aggressors and perpetrators of war crimes and crimes against humanity.[56] Ukrainian President Petro Poroshenko also recently petitioned the UN General Assembly to limit or cancel Russia’s right to veto as a permanent member of the Security Council.[57] He argued the measure was warranted because of Russia’s aggression against Ukraine and utilization of the veto on votes pertaining to Ukraine.

Declining to categorize the situation as an armed conflict may be a strategy intended to legitimize Ukraine’s own use of restrictive tactics in those regions.[58] The derogation-related strategies may or may not be successful.[59] However, the ICC could theoretically find evidence of human rights violations by the separatist groups, Russian Federation forces, and potentially by Ukrainian military, law enforcement, or pro-government group members.

The difficulty of investigations and access to crimes scenes[60] and evidence are ongoing issues for the ICC. However, it is almost certain that there is a “reasonable basis to believe” the human rights violations, including torture, killings, and inhuman treatment, fall within the Rome Statute subject matter jurisdiction for war crimes and crimes against humanity.[61] The OTP should at the very least have the requisite reasonable basis to believe that the criteria for war crimes and crimes against humanity has been satisfied. This determination would allow the OTP to move to the admissibility phase of the preliminary examination.[62] The reliability and level of detail in the UN and Amnesty reports provide numerous specific instances of violations. In DNR- and LNR-controlled territory, the UN Human Rights Monitoring Mission in Ukraine (HRMMU) continues to “verify allegations of killings, abductions, torture and ill-treatment, sexual violence, [and] . . . forced labor . . . .”[63] Amnesty verified numerous identical allegations, among them incidents of deliberate summary killings of prisoners, torture, and other methods of inhumane detainee treatment.[64]

The next phase of the OTP’s jurisdictional inquiry (admissibility) must determine whether the Ukraine is unwilling or unable to genuinely investigate or prosecute in this situation.[65] As for “inability”, a main concern is victims’ reluctance to report crimes for fear of reprisals, especially if the victims remain in government-controlled areas.[66] Many victims are unable to file charges due to the lack of a functioning mail system in areas controlled by militant groups.[67]

The UN describes a pattern of Ukrainian law enforcement conducting none or extremely limited investigations, where law enforcement cites the difficulty of accessing crimes sites and in “identifying suspects and weapons.”[68] Any court decisions resulting in punishment of armed group members pertain to relatively minor charges unrelated to human rights crimes.[69] The government’s ability to investigate seems to be significantly hindered by the ongoing separatist control of territory in eastern Ukraine. It is also affected by the probability that pro-government and government-affiliated persons have committed a number of violations. The latter factor, however, shades into an “unwillingness” determination. It seems plausible that the OTP will encounter similar difficulties in evidence gathering, but Ukraine’s obstacles to carrying out judicial proceedings probably do not rise to the level of a “partial collapse” of an effective justice system.[70]

The source of the OTP’s jurisdiction is more likely to be through the determination that Ukraine is “unwilling” to genuinely investigate and prosecute humanitarian and war crimes.[71] The OTP should consider the following indications of Ukraine’s unwillingness: reluctance to prosecute its own personnel, attempts to abrogate from major human rights treaties, citing the “difficulties” of investigating, handing down sanctions only for non-war crimes or human rights violations, possible coercion of plea bargains through torture[72], and making multiple attempts to refer its case to international judicial bodies.[73]

Conclusions: ICC Investigation and Prosecution of Rome Statute Crimes in the Eastern Ukraine

Based on the available evidence, it is almost certain that there is reasonable basis to believe eastern Ukraine is the site of numerous crimes against humanity and war crimes, as required by a preliminary examination under the Rome Statute. The evidence probably meets a higher burden of proof than that required by Phase 2. A review of Ukraine’s apparent unwillingness to genuinely investigate and prosecute the crimes, as well as the gravity of crimes, indicates that the case is admissible under the next phase (Phase 3).[74] This leaves only Phase 4, in which the OTP determines whether a full investigation is in the interests of justice.[75] A recommendation that it would be against the interests of justice is extremely rare.[76] Ultimately, a full ICC investigation is warranted.

[1] Rome Statute of the International Criminal Court (“Rome Statute” or “Statute”), July 17, 1998, 2187 U.N.T.S. 90, art. 5, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (PDF)

[2]Rome Statute art. 12(3), http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/registry/pages/declarations.aspx [http://perma.cc/65JA-2EMC]. Rome Statute art. 12(3), http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (PDF) (p. 11).

[3] Rome Statute art. 17.

[4] Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, (Sept. 2004), https://www.hrw.org/legacy/backgrounder/africa/icc0904/icc0904.pdf (PDF) [https://perma.cc/59FC-F642].

[5] Rome Statute art. 7(1), available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (PDF).

[6] Rome Statute art. 7(1), available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (PDF).

[7] Rome Statute art. 8(2)(e).

[8] Rome Statute art. 8.

[9] Rome Statute art. 17(1), available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (PDF); see also id. art. 17(3) (“In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”), available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (PDF).

[10] See Human Rights Watch, supra note 4, at 9.

[11] See Human Rights Watch, supra note 4, at 9.

[12] See Human Rights Watch, supra note 4, at 9.

[13] Rome Statute art. 15(1)-(2).

[14] See Human Rights Watch, supra note 4, at 10. The Court and Prosecutor act as independent organs. The Trial Chamber decides the guilt or innocence of the person charged and assesses punishment and/or damages. The Prosecutor or the convicted person may appeal to the Appeals Chamber, and that Chamber may reverse, amend, or order a new trial.

[15] See ICC, Preliminary Examinations, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx (describing the referral process, Phases 1 through 4 of ICC preliminary examination, links to current situations in nine states, and the “filtering process” for each phase (akin to vague standards of proof or review).

[16] See Yasmin Naqvi, “Amnesties and the ICC,” http://www.peaceandjusticeinitiative.org/implementation-resources/amnesties-and-the-icc [http://perma.cc/AX9H-4CKU].

[17] David P. Stewart, Recent Books on International Law: Review Essay: The Norms and Challenges of International Criminal Law, 109 Am. J. Int’l L. 214, 214 (2015) (reviewing Kai Ambos, Treatise on International Criminal Law: Volume I: Foundations and General Part. (2013)).

[18] Declaration by Ukraine Lodged Under Article 12(3) of the Rome Statute, Apr. 9, 2014, available at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/997/declarationRecognitionJuristiction09-04-2014.pdf (PDF)

[19] Declaration by Ukraine Lodged Under Article 12(3) of the Rome Statute, Sept. 8, 2015, available at http://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf (PDF).

[20] Id.

[21] Aaron Matta & Tom Buitelaar, Guest Post: Do All Roads Lead to Rome? Why Ukraine Resorts to Declarations Rather than Ratification of the Rome Statute, Opinio Juris (Oct. 14, 2015, 10:56 AM), http://opiniojuris.org/2015/10/14/guest-post-do-all-roads-lead-to-rome-why-ukraine-resorts-to-declarations-rather-than-ratification-of-the-rome-statute [http://perma.cc/42GN-VFGJ].

[22] Rome Statute art. 12(3); see ICC, Declarations Art. 12(3), http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/registry/Pages/declarations.aspx.

[23] See ICC, supra note 24.

[24] See ICC, Preliminary Examinations, supra note 16.

[25] See Matta & Buitelaar, supra note 21 (discussing the legal and political obstacles to Rome Statute ratification, including concerns over the implications of ICC jurisdiction).

[26] Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine, Nov. 15, 2014 (“OHCHR 7th Report”), available at http://www.ohchr.org/Documents/Countries/UA/OHCHR_seventh_reportUkraine20.11.14.pdf (PDF); Amnesty Int’l, Breaking Bodies: Torture and Summary Killings in Eastern Ukraine (2015), https://www.amnesty.org/en/documents/eur50/1683/2015/en [http://perma.cc/74MG-ANU4].

[27] See, e.g., Stewart, supra note 12.

[28] See Stewart, supra note 12; see also Press Release, ICC, Kenyatta Case: ICC Trial Chamber Rejects Request for Further Adjournment and Directs the Prosecution to Indicate Either Its Withdrawal of Charges or Readiness to Proceed to Trial (Dec.3, 2014), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/PR1071.aspx. The Trial Chamber rejected the prosecution’s request for more time. It also (separately) rejected a request for a finding of “non-cooperation” against the Kenyan Government and referral to the Assembly of State Parties.

[29] See Stewart, supra note 12; see Omar al-Bashir Celebrates ICC Decision to Halt Darfur Investigation, Guardian, Dec. 14, 2014, http://www.theguardian.com/world/2014/dec/14/omar-al-bashir-celebrates-icc-decision-to-halt-darfur-investigation [http://perma.cc/2GAD-ARKT]. The Security Council’s hesitancy is attributed to deep divisions stemming from China’s support of the Khartoum regime. The ICC also asked (and was refused by) Qatar, Saudi Arabia, Egypt and Ethiopia to arrest al-Bashir during his recent visits. Al-Bashir was indicted in 2009.

[30] See Omar al-Bashir Celebrates ICC Decision to Halt Darfur Investigation, supra note 29.

[31] Id.

[32]The Ukraine’s Prosecutor General’s Office classified the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) as terrorist groups in May 2014. Interfax-Ukraine, Ukraine’s Prosecutor General Classifies Self-Declared Donetsk and Luhansk Republics as Terrorist Organizations, May 16, 2014, http://www.kyivpost.com/content/ukraine/ukraines-prosecutor-general-classifies-self-declared-donetsk-and-luhansk-republics-as-terrorist-organizations-348212.html [http://perma.cc/XS7D-SQDT].

[33] Andrew E. Kramer, Nowhere to Run in Eastern Ukraine, N.Y. Times, Nov. 13, 2014, http://www.nytimes.com/2014/11/14/world/europe/nowhere-to-run-in-eastern-ukraine-.html [https://perma.cc/PUY7-73Z5?type=source].

[34] Kramer, supra note 17.

[35] See Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine, May 16, 2015, to Aug. 15, 2015 (“OHCHR 11th Report”) 3, available at http://www.ohchr.org/Documents/Countries/UA/11thOHCHRreportUkraine.pdf (PDF).; see also Declaration by Ukraine, supra note 20; Declaration by Ukraine, supra note 21.

[36] See Interfax-Ukraine, supra note 32.

[37] See Interfax-Ukraine, supra note 32; see Press Release, Eur. Ct. H.R., European Court of Human Rights Communicates to Russia New Inter-State Case Concerning Events in Crimea and Eastern Ukraine, ECHR 296 (Oct. 1, 2015), http://hudoc.echr.coe.int/eng-press?i=003-5187816-6420666. The Ukrainian government has also recently announced that it exercises its right to derogate from the International Covenant on Civil and Political Rights and the European Convention on Human Rights (with respect to regions where the government is conducting actions against separatist groups and/or Russian forces); see also Marko Milanovic, Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application Against Russia, Blog Eur. J. Int’l L. (Oct. 5, 2015), http://www.ejiltalk.org/ukraine-derogates-from-the-iccpr-and-the-echr-files-fourth-interstate-application-against-russia [http://perma.cc/7TMY-K6E2].

[38] OHCHR 7th Report, supra note 9, at 4.

[39] OHCHR 11th Report, supra note 35, at 3.

[40] AMNESTY INT’L, supra note 25, at 8.

[41] AMNESTY INT’L, supra note 25, at 13.

[42] AMNESTY INT’L, supra note 25, at 5.

[43] AMNESTY INT’L, supra note 19, at 6. Amnesty notes that inquiries to the Prosecutor General of Ukraine to clarify the legal status of pro-government militia groups remain unanswered. The legal status of groups like Right Sector and their ability to detain separatists is not certain. Amnesty int’l, supra note 19 at 9. Some volunteer groups have been incorporated into the National Guard but many continue to operate with a high degree of autonomy. Amnesty int’l, supra note 19, at 12.

[44] AMNESTY INT’L, supra note 19, at 8.

[45] AMNESTY INT’L, supra note 19, at 8.

[46] AMNESTY INT’L, supra note 19, at 8.

[47] AMNESTY INT’L, supra note 19 at 17.

[48] AMNESTY INT’L, supra note 19 at 8.

[49] See Human Rights Watch, supra note 4, at 17.

[50] See Human Rights Watch, supra note 4, at 17.

[51] See Human Rights Watch, supra note 4, at 22.

[52] AMNESTY INT’L, supra note 16.

[53] See, e.g., generally OHCHR 11th Report, supra note 35. Russia itself is a party that has not ratified the Rome Statute. Other major signatories that have not ratified the Rome Statute include the U.S., Israel, and Ukraine. Among others, China and India are neither parties nor signatories. United Nations Treaty Collection, Rome Statute of the International Criminal Court, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en

[54] See Press Release, Eur. Ct. H.R., supra note 22.

[55] Permanent Representation of Ukraine to the Council of Europe, Note Verbale JJ7979C, Tr./005-185 (June 10, 2015), https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2761813&SecMode=1&DocId=2278178&Usage=2 (including copy of Ukrainian parliament’s adoption of the Declaration “On Derogation from Certain Obligations Under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms”).

[56] Id.

[57] Citing Violations of International Law, Ukraine Urges the United Nations to Remove Russia’s Right to Veto, Int’l L. Prof Blog (Sept. 30, 2015), http://lawprofessors.typepad.com/international_law/2015/09/ukraine.html [http://perma.cc/RCP3-G9CH].

[58] See Milanovic, supra note 19.

[59] See Milanovic, supra note 19.

[60] See OHCHR 11th Report, supra note 35, at 28.

[61] See ICC, Preliminary Examinations, supra note 25 (discussing Phase 2’s requirement that a preliminary examination determine ICC subject-matter jurisdiction).

[62] See ICC, Preliminary Examinations, supra note 25. Admissibility is analyzed “in terms of complementarity [whether the state itself is effectively investigating] and gravity.”

[63] OHCHR 11th Report, supra note 35, at 4.

[64] See AMNESTY INT’L, supra note 19 at 5, 8, 16.

[65] See Rome Statute art. 17, supra note 9.

[66] See OHCHR 11th Report, supra note 35, at 23, 28

[67] See OHCHR 11th Report, supra note 35, at 28 (“According to Ukrainian legislation and internal regulations of the law enforcement agencies, formal complaints can only be filed: (i) personally; (ii) via postal mail; and (iii) through a trustee empowered with a power of attorney certified by a notary. … [Ukrainian law enforcement] are reluctant to open an investigation [without a formal report].”).

[68] See OHCHR 11th Report, supra note 35, at 4 (suggesting skepticism toward such police assertions); see also Daryna Krasnolutska & Kateryna Choursina, Ukraine Failing to Probe Pro-Russia Protester Deaths, Panel Says, Bloomberg News (Nov. 4, 2015) (describing similar findings by Council of Europe investigatory panel), http://www.bloomberg.com/news/articles/2015-11-04/ukraine-failing-to-probe-pro-russia-protester-deaths-panel-says [http://perma.cc/5ST7-2TYQ].

[69] See OHCHR 11th Report, supra note 35, at 4 (discussing charges including trespassing, weapons violations, and violating Ukraine’s territorial integrity).

[70] See Human Rights Watch, supra note 4 at 9.

[71] See Human Rights Watch, supra note 4 at 9.

[72] See OHCHR 11th Report, supra note 35, at 4

[73] See generally OHCHR 11th Report, supra note 35; see also Press Release, Eur. Ct. H.R., supra note 22.

[74] See ICC, Preliminary Examinations, supra note 25.

[75] See ICC, Preliminary Examinations, supra note 25.

[76] See ICC, Preliminary Examinations, supra note 25.

Posted by Jennie L. Cunningham on Wed. November 4, 2015 12:00 PM
Categories: International Criminal Court, Reports (longer, analytical blog posts), Russia, Ukraine

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