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Ukraine Should Join the International Criminal Court to Push Back Putin

As Russia’s military continues to fortify its position in the Crimea, the government in Kiev could advance its position on the chessboard by ratifying the treaty for the International Criminal Court. This would not be the first time for a government to use the Court as a part of a broader strategy to address a tough political situation. But it might be one of the wisest.    

Kiev has recently shown some willingness to embrace the Court. In late February, Ukraine’s Parliament took a half-step by attempting to enter an ad hoc agreement with the Court to address past crimes of former President Yanukovych and his associates.  The Court allows ad hoc arrangements under Article 12(3) of the Statute. But there are strong reasons for Kiev, through whatever constitutional actions might be required, to take the full step of ratifying the treaty to cover future international crimes.

What’s the strategic value of the Court’s broader involvement in Ukraine?

Most importantly, it would increase the costs of Mr. Putin’s military intervention. Looking over the Russian military’s shoulders would be a relatively important international body. The prospect of criminal punishment might make a difference in the cost-benefit calculation involved in a prolonged stay. Indeed, Jack Goldsmith has argued that US ratification of the Court’s statute would discourage the US government from using force to protect minorities in foreign countries. Moscow would also never ratify the ICC statute because its leaders understand the potential power of the Court and the complications it would inject into Russian military operations. It is time for Mr. Putin to feel those complications in the Ukraine.

Wouldn’t joining the international court also place Kiev in jeopardy for its own actions? Yes, and that’s another good reason to accept the Court’s jurisdiction. Many states use the Court for this very purpose, according to an empirical study by Beth Simmons and Allison Danner. Assigning the Court oversight power is a device—a “credible commitment,” explain Simmons and Danner–for a government to assure others that it will live up to international standards such as protecting minority rights. Mr. Putin has invoked the protection of the Russian-speaking population in the Crimean peninsula as a reason for his advance. Ukraine’s handing power over to the Court could help counteract Mr. Putin’s position and, indeed, help assure those groups of their safety in Ukraine’s future.

There is one final benefit to this strategy. As events unfold in Ukraine, it is easy to envision a future in which the legitimacy of the current Ukrainian government is contested—either in Crimea or the capital itself. Because international law is on their side, the present government’s interests would be served by having an international body adjudicate that question. There are few global or regional institutions with the independence and authority to decide such matters. But cases brought before the International Criminal Court could very well include such legal questions as part of the adjudication. For example, the Court may have to determine which government properly represents the Ukraine in various proceedings, or pass judgment on whether Russia is involved in an armed conflict on the side of an essentially exiled government (Yanukovych’s letter).

There are other international and regional organizations that can help steer Ukraine out of the present crisis. And, on its own, joining the international court would not be a major move on the chessboard.  But it could help to advance other important pieces.

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter (@rgoodlaw).