Brussels/The Hague/Kyiv/Kuala Lumpur/ London:
Parliamentarians for Global Action (PGA), the largest network of individual Lawmakers from 132 Parliaments in all regions of the world, strongly welcomes the referral of the ongoing conflict by 40 States to the ICC between 1 and 7 March 2022, and the subsequent decision by the ICC Prosecutor to open an investigation into the situation in Ukraine on 2 March 2022. To ensure an effective and expeditious investigation, PGA urges States to increase their financial support to the ICC and amend jurisdictional requirements on the crime of aggression so that this crime falls under the scope of the current ICC investigation.
The gravity of the events and the urgency of the situation stress the need to live up to our commitments to human rights, democracy, Rule of Law, peace and the enforcement of international criminal justice in the fight against impunity. The opening of the investigation at the ICC is one important step towards achieving this- no one is above the law and everyone can and will be held accountable for the international crimes. Ms. Maryna Bardina, MP (Ukraine- Servant of the People), PGA Member
We welcome the opening of the ICC investigation and look forward to the ICC staff in Ukraine. We have already collected and are ready to hand over materials on targeted shelling of civilian objects and civilians in different cities. And we continue this work in hotspots in the hope that soon or later justice will be restored. Ms. Oleksandra Matvyichuk, Chairwoman of Centre for Civil Liberties of Ukraine
In order to ensure that the ICC can launch a full-scale investigation without any delay and enhance effectiveness and global impact of ICC investigations, PGA calls on all States to support, and mobilize support for the urgent expansion of the resources of the ICC Office of the Prosecutor.
The Russian military forces kill our civilians and children in targeted attacks. The Russian military and its leadership must be held to account for these egregious crimes. We therefore welcome the decision by ICC Prosecutor to open an investigation into these atrocities committed in our country. Peace and justice go hand in hand: only by ensuring that those responsible for these crimes will face justice, we can achieve a lasting peace, deterring other leaders and dictators from resorting to the same deplorable acts. Mr. Vladlen Nekliudov, MP (Ukraine- Servant of the People), PGA member
THE APPEAL BY 31 MEMBERS OF THE EUROPEAN PARLIAMENT TO EU LEADERS
The global PGA network welcomes today’s letter from Members of the European Parliament (MEPs) in support of the investigation into the situation in Ukraine. The letter calls on the EU and its 27 Member States to (i) provide effective support to the ICC; (ii) align the jurisdiction on the crime of aggression with other three international crimes, namely through removing the procedural conditions of Article 15bis that exempt nationals of States non Parties to the Statute (e.g. the leaders of the Russian Federation) from the ICC jurisdiction on the crime of aggression; and (iii) support the Member States’ offers of voluntary contributions to address the lack of means denounced by the ICC Prosecutor.
The Appeal is addressed to the President of the European Commission Ursula Von Der Leyen and to the High Representative for Foreign and Security Policy Joseph Borrel. 31 representatives of all major political groups in Europe co-signed it, with Mr. Fabio Massimo Castaldo, MEP (Italy – Independent), Chairperson of the PGA Group in the European Parliament as the first signatory. Other prominent PGA Members signatories include Ms. Heidi Hautala, MEP (Finland – Greens), Vice-President of the EP in charge of human rights and democracy, Mr. Juan Fernando Lòpez Aguilar, MEP (Spain – Socialists & Democrats), Chair of the Committee on Civil Liberties, Justice and Home Affairs, and Mr. Urmas Paet, MEP (Estonia – Renew Europe), Vice-Chair of the Committee on Foreign Affairs.
The President of PGA, Ms. Kasthuri Patto, MP (Malaysia – Democratic Action Party), welcomed the initiative of her European colleagues:
The entire world is shocked by the aggressive war waged by the Russian Federation against Ukraine and the atrocities that are victimizing the civilian populations. Given that the EU has been a driving force behind the creation of the ICC in The Hague, the PGA global network supports the initiative of our European colleagues who call for more support and resources for effective investigations and prosecution in this tragic crimes’ scene, and a swift deliberative process within the Assembly of States Parties to ensure that the crime of aggression perpetrated against Ukraine will be also adjudicated.
Even if Ukraine is not yet a State Party to the Rome Statute, the ICC has jurisdiction over crime of genocide, crimes against humanity and war crimes committed in Ukraine following the acceptance of the ICC jurisdiction by the Government of Ukraine in 2015, upon request of the Verkhovna Rada (Parliament) of Ukraine, in which PGA Members played a leading role.
Planning, ordering and waging a war of aggression is not only a crime under International Law defined in Article 8bis of the Rome Statute of the ICC, but also a punishable offence under the Russian Criminal Code (Articles 353 and 354). In light of a provision adopted in 2010 requiring the acceptance of the jurisdiction by both the State in which aggression is committed (e.g. Ukraine) and the State of nationality of the aggressor(s) (e.g. the Russian Federation), the ICC is facing a procedural bar to exercise jurisdiction on the crime of aggression, while it can advance with investigations and prosecutions of the other three international crimes. PGA therefore fully supports the Appeal by the Members of the European Parliament and the amendment on the crime of aggression which would grant the ICC jurisdiction over the crime if either the aggressor State or the victim State were a State Party to the ICC (or accepted the ICC jurisdiction). In practice, it would enable the ICC to investigate the crime of aggression in this aggressive war triggered by the Russian Federation.
In order to address and resolve this problem, Mr. Fabio Massimo Castaldo MEP stated:
The ICC is blocked on the crime of aggression due to a procedural norm in Article 15 bis of the Rome Statute that our States included in the 2010 Amendments to fulfil the demands of the United States. This norm is unintendedly shielding the leader(s) of Russia from their individual criminal responsibility for the crime of aggression, within the framework of which all the atrocities of the war in Ukraine are being committed. We call upon the EU to request the convening of an extraordinary session of the Assembly of States Parties to the Rome Statute to remove this procedural clause.
While the Rome Statute is characterized by a complex procedure for the adoption and entry into force of amendments, under the general International law of treaties, States Parties may unanimously agree to amend an amendment procedure of the treaty for a specific change, delete the procedural bar of Article 15 bis (paragraph 5), and decide for its immediate entry into force without creating a precedent. Any State Party can draft and circulate via the UN Secretary-General amendments to the Statute and propose to the Presidency and the Bureau of the Assembly of States Parties the organization of an extraordinary session, without waiting for the regular session that will take place in The Hague in December 2022.
An extraordinary session of the Assembly of States Parties can also serve to solicit and receive urgent support, including additional funding, as repeatedly requested by the ICC Prosecutor Karim Khan Q.C., since he became the third ICC Prosecutor in June 2021.
PGA Board Member Mr. Mark Pritchard, MP (UK – Conservative), Chair of the All Parties Parliamentary Group on Ukraine, who led a PGA delegation in Kyiv to promote ratification of the ICC as early as in December 2015 (see video), stated today from the House of the Commons:
All Parliamentarians and Governments of the world committed to human rights must unite their voice and action in support of Ukraine. A war of aggression is attacking the democratic principles and values that inform our societies. The UK, EU Members and all the States Parties should support the PGA proposal for an extraordinary session of the Assembly of States Parties of the ICC to ensure that all the most serious crimes of international concern may not remain unpunished.
