Argument: Does Yanukovych really qualify for the ICC?

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” [1] 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. [2] 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.

[1] 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

[2] Kersten, 2014, http://opencanada.org/features/the-think-tank/comments/could-yanukovych-be-tried-at-the-icc/

Candidate 1: "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. [1] Clearly there will be action taken against corruption even as Yanukovych is being tried for other more serious crimes.

[1] 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"
Candidate 2: "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."
Candidate 3: "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. [1] 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.

[1] 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"
Candidate 4: "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."

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. [1] 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.

[1] 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
