On the 26th February 2014 the Ukrainian Parliament voted to send the country’s president Viktor Yanukovych to the ICC in The Hague. And he is not the only one; at the same time they have also voted that the former interior minister Vitali Zakharchenko and the prosecutor general, Viktor Pshonka should also be tried by the ICC. This is for “crimes against humanity during peaceful protests in Ukraine since November 30, 2013 until February 22, 2014”.
The protests were the result of the President deciding on 21st November 2013 not to agree a trade and association agreement with the EU and instead turn towards Russia. Yanukovych’s actions may have been pragmatic - Ukraine needed money and Russia was willing to provide while the EU was not but the opposition took to the streets. The result was months of standoff with some violence. On the 16th January the Ukranian parliament attempted to end the protests by passing anti-protest laws which included banning any rallys, vaguely defined extremist activity, and clamping down on freedom of speech and the press. The result was the protests became riots and occupations of government buildings.
Throughout the protests there had been attacks, disappearances, and beatings of protestors, but on 18th February protestors advanced on Ukraine’s parliament sparking three days of serious violence. The police used rubber bullets and live ammunition including sniper fire and automatic weapons. On the 20th riot police attempted to regain lost ground and the Minister of the Interior Zakharchenko stated “Law enforcement officers have received service firearms and will use them in accordance with Ukraine’s law on police” so authorising the use of firearms to beat back the protesters. The health ministry said there were 67 dead and 562 wounded in the three days of fighting, though the toll may well have been higher.
The next day Yanukovych agreed to mediation by the French, German and Polish foreign ministers leading to a deal between the opposition and the President. The deal restored the 2004 constitution, provided an amnesty to protestors and promised elections. Despite it seeming to be a deal to stop violence rather than change government Yanukovych decided the game was up and fled with the Ukrainian parliament and the protestors taking over control.
In the short term a trial in either The Hague or Ukraine is unlikely; he has turned up in Moscow. Russia has agreed to give Yanukovych protection so is unlikely to extradite him, especially as he is still a useful player as he still claims to be the President, and until a new election he has some justification to do so. Yanukovych himself says “the Ukrainian parliament is illegitimate” before adding that “Decisions taken in parliament were taken under duress” so any attempt to try him is as illegitimate as the takeover.
 Kersten, Mark, ‘Could Yanukovych Be Tried at the ICC?’, opencanada.org, 27 February 2014, http://opencanada.org/features/the-think-tank/comments/could-yanukovych-be-tried-at-the-icc/
 Traynor, Ian, and Grytsenko, Oksana, ‘Ukraine suspends talks on EU trade pact as Putin wins tug of war’, The Guardian, 21 November 2013, http://www.theguardian.com/world/2013/nov/21/ukraine-suspends-preparations-eu-trade-pact
 Moryl, Alexander J., ‘Taking Yanukovych to the International Criminal Court?, World Affairs Journal, 1 January 2014, http://www.worldaffairsjournal.org/blog/alexander-j-motyl/taking-yanukovych-international-criminal-court
 RIA Novosti, ‘Ukrainian Police Authorized to Use Live Ammo as Battle Rages’, 20 February 2014, http://web.archive.org/web/20140221000210/http://en.ria.ru/world/20140220/187726857/Ukrainian-Police-Authorized-to-Use-Live-Ammo-as-Battle-Rages.html
 Traynor, Ian, ‘Ukraine’s bloodiest day: dozens dead as Kiev protesters regain territory from police’, The Guardian, 21 February 2014, http://www.theguardian.com/world/2014/feb/20/ukraine-dead-protesters-police
 ‘Agreement on the Settlement of Crisis in Ukraine - full text’, theguardian.com, 21 February 2014, http://www.theguardian.com/world/2014/feb/21/agreement-on-the-settlement-of-crisis-in-ukraine-full-text
Even before most of the violence by riot police in February some experts were suggesting that Yanukovych had committed crimes against humanity – crimes committed by a state against a civilian population. Professor Alexander J Motyl argued “The Yanukovych regime may already be guilty of “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” and “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds.”” Now at the very least murder can be added to that count.
Simply committing murder, or imprisonment, or persecution is not enough to make a crime a crime against humanity. It must be “widespread or systematic”. A great many states are involved in individual killings or unjust imprisonments so there has to be a threshold for ICC intervention. Unfortunately this is undefined so it will be up to the prosecutor to decide whether these crimes meet that threshold.
Having the ICC prosecute Yanukovych currently faces a major difficulty; Ukraine has not ratified the Rome statute. It is therefore outside the jurisdiction of the court. Technically this means the parliament can’t ask for ICC prosecution as there is no State Party to refer the situation to the prosecutor. Clearly there is an easy solution to this; Ukraine should ratify the statute. This would have the benefit of reaffirming international criminal law, showing that it can be beneficial in a crisis, and increasing it as an accepted norm.
 ICC, ‘The States Parties to the Rome Statute’, icc.cpi.int, accessed 28/2/2014, http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx
 Rome Statute, Article 14
The ICC has itself said that “No country in the world has a right to ask the ICC to prosecute certain people” and highlighted that even after ratification “only the court’s prosecutor can decide whether there is sufficient ground for conducting an investigation”. Once ratified Ukraine may ask, but the ICC is not bound to prosecute him because of the request.
Justice is about the past. But when prosecuting someone there also needs to be a thought for the present and the future of the country. In the case of prosecuting Yanukovych there could be serious consequences as he had support in one half of the country. Ukraine is a divided country with many in the East considering themselves to not be Ukrainian, and certainly look to Moscow not the EU. The new administration has already abolish a law that made Russian a second language in the country so infringing the rights of many in the East. Trying a former leader in Kiev would be similarly provocative to those who believe Yanukovych is still the legitimate president, or even those who may not agree with Yanukovych but dislike the westward movement even more. While it would be unlikely to cause conflict on its own the action would certainly be an aggravating factor if other actions against the east of the country are being taken.
 Jamison, Alastair, ‘Can Ukraine Avoid an East-West Split and Bloody Civil War?’, NBCnews, 26 February 2014, http://www.nbcnews.com/storyline/ukraine-crisis/can-ukraine-avoid-east-west-split-bloody-civil-war-n38911
 RT, ‘Canceled language law in Ukraine sparks concern among Russian and EU diplomats’, RT.com, 27 February 2014, http://rt.com/news/minority-language-law-ukraine-035/
There is little evidence that Yanukovych still has much support anywhere in Ukraine. However an ICC trial could simply inflame the other side; those who have overthrown Yanukovych are likely to want a trial to take place as soon as possible (which may be a long time off considering he is in Russia) and want it to take place in the Ukraine. The ICC would almost certainly be willing to give in to popular opinion; previously in Libya the prosecutor did not act when it was clear that public opinion did not want an international trial of Saif Gadaffi.
Justice for Yanukovych should be international simply because it would be a much better guarantor of a fair trial. The Ukrainian justice system is unfortunately corrupt, and at the behest of prosecutors; it has an amazing conviction rate of 99.8%. This is because judges are they are only appointed for five years then the government confirms tenure if it believes they have been voting the right way. Yulia Tymoshenko, an opponent of Yanukovych, was imprisoned for making a deal with President Putin to ensure gas supplies – something that was a humanitarian necessity to ensure Russia did not freeze Ukraine into submission.
 Robertson, Geoffrey, ‘Yulia Tymoshenko's trial was a travesty of justice’, The Guardian, 23 February 2014, http://www.theguardian.com/commentisfree/2014/feb/23/ukraine-yulia-tymoshenko-travesty-justice-trail
International help would be available to ensure an impartial trial in the Ukraine. The OSCE has offered “an OSCE role as impartial witness and guarantor to the implementation of concrete steps agreed between the parties” which could also extend to any trial. With other international organisations involved in gathering evidence and providing legal assistance there could be certainty of an impartial trial without having to go to the ICC.
The International Criminal Court only tries a few international crimes. This means that other crimes that Yanukovych has committed that are not covered by ‘international criminal law’ cannot be prosecuted at the ICC. It is possible that not all the charges of violence against protesters may count as the crimes against humanity that the court can charge. Equally Yanukovych’s financial crimes cannot be prosecuted at the ICC. It was already known that Yanukovych became very rich as a result of corruption during his time as president but it is only now beginning to become clear how much corruption there was. Yatsenyuk the new Prime Minister “Over $20bn of gold reserve were embezzled. They took $37bn of loans that disappeared. Around $70bn was moved to offshore accounts from Ukraine's financial system in the last three years” with much of that money finding likely finding its way to Yanukovych or his friends. Considering the hole in Ukraine’s finances it would be far better to pursue these crimes.
 Walker, Shaun, and Grytsenko, Oksana, ‘Ukraine’s new leaders begin search for missing billions’, The Guardian, 27 February 2014, http://www.theguardian.com/world/2014/feb/27/ukraine-search-missing-billions-yanukovych-russia
Even if the former President cannot be prosecuted at the ICC for his corruption there can still be investigations into his wealth, his assets can be frozen and the money found repatriated to Ukraine without specifically indicting him for corruption. Switzerland has already said that it is freezing any of Yanukovych’s assets in the country while the EU is considering an inquiry into his embezzlement. Clearly there will be action taken against corruption even as Yanukovych is being tried for other more serious crimes.
 Fraher, John, ‘Yanukovych to Appear in Russia Tomorrow as Swiss Freeze Assets’, Bloomberg, 27 February 2014, http://www.bloomberg.com/news/2014-02-27/yanukovych-to-appear-in-russia-tomorrow-as-swiss-freeze-assets.html
It is questionable whether Yanukovych’s crimes, as abhorrent as they may be, really qualify for the ICC. It is clear that he does not qualify for three of the four crimes the ICC charges; genocide, war crimes, and the crime of aggression (this is for attacking other states not your own people). This leaves crimes against humanity. Crimes against humanity can include murder when “committed as part of a widespread or systematic attack directed against any civilian population” so the ICC will need to decide whether less than 100 dead is widespread and grave enough to justify the charge – and this is something that is up to the prosecutor. Moreover as yet we don’t know if Yanukovych himself was directly responsible for ordering attacks on the protesters in the last couple of days before the fall of his government.
 States Parties, ‘Rome Statute of the International Criminal Court’, icc-cpi.int, A/CONF.183/9 17 July 1998, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf, Article 7
Clearly whether Yanukovych was directly responsible for the deaths and injuries by ordering assaults is something the prosecutor will need to investigate. It is likely that Yanukovych authorised attacks, there have already been leaks that he was planning to go much further with a large military “antiterrorist” operation to break up the protesters. It seems almost certain that one of the three that the parliament voted to send to the ICC will be responsible for the deaths. It would be far better that the ICC were to be the one who decided who is directly responsible for what than an interim administration that has every reason to dislike Yanukovych and therefore influence the charges.
 Robins-Early, Nick, ‘Ukraine’s President Yanukovych Planned Crackdown As He Fled Documents Show’, The Huffington Post, 25 February 2014, http://www.huffingtonpost.com/2014/02/25/yanukovych-crackdown-documents_n_4854228.html
The ICC recognises that a case is inadmissible where “The case is being investigated or prosecuted by a state which has jurisdiction over it”. The state of which Yanukovych is a national, and where the crimes took place has precedence. Ukraine therefore has first right to try Yanukovych, indeed the ICC will only act if Ukraine is unwilling or unable to do so itself. As the crimes he is alleged to have committed took place entirely in Ukraine, over Ukrainian issues he should be tried in Ukraine. This would allow the Ukrainian people to see justice done themselves rather than relying on others to do it for them.
 States Parties, ‘Rome Statute of the International Criminal Court’, icc-cpi.int, A/CONF.183/9 17 July 1998, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf, Article 17
The Ukraine is perfectly at liberty to decide that it wants its former president to be tried at the ICC rather than at home. The crimes may have taken place in Ukraine but the reasoning behind the need for the ICC is that some crimes – including crimes against humanity – are so great that they are the responsibility of all, they affect other nations. The Ukrainian people would see justice done just as well by it being carried out in The Hague as in Kiev.
has resulted in a conviction is against Thomas Lubanga – the trial took eight years from arrest to conviction. The option of trying Yanukovych in the Ukraine with outside help in the process is therefore a better idea. The Council of Europe’s Secretary General has already offered “legal… expertise… by the International Advisory Panel (IAP), which will oversee investigations into recent acts of violence. I expect the IAP to start its work in Ukraine as early as next week.” The OSCE too will help “efforts to establish facts on acts of violence and human rights violations.” Clearly the Ukraine would be in a good position to provide a free and fair trial for its former president that could bring justice much faster than the ICC while also showing justice being done in the right place.
 Jagland, Thorbjørn, ‘Secretary General Jagland welcomes the Agreement on the Settlement of the Crisis in Ukraine’, coe.int, 21 February 2014, http://www.coe.int/web/secretary-general/-/le-secretaire-general-jagland-salue-l%E2%80%99accord-sur-le-reglement-de-la-crise-en-ukraine
Slow might potentially be beneficial in this instance. It would mean that there is time for the worst of the scars of the protest, crackdown and change in power to heal so reducing the chance of any instability or violence when the outcome – whichever way it goes – is announced.