Ireland and 37 states formally refer reports of atrocities in Ukraine to ICC

Evidence of Russian war crimes being gathered by prosecutors

Ireland and 37 other states have formally referred reports of atrocities committed in Ukraine to the international criminal court (ICC). Under ICC rules, such a referral from member states means that the prosecutor does not have to get the approval of ICC judges before opening an investigation, speeding up the process.

Under ICC rules, such a referral from member states means that the prosecutor does not have to get the approval of ICC judges before opening an investigation, speeding up the process.

Minister for Foreign Affairs Simon Coveney said that the referral will enable the prosecutor to “immediately begin his investigation into alleged crimes currently unfolding there and will promote justice and accountability for the Ukrainian people caught in the conflict.”

Earlier, Ukrainian prosecutors and independent researchers had begun collating evidence of war crimes targeting civilians following confirmation by the prosecutor at the International Criminal Court (ICC) that he is seeking urgent permission to investigate indiscriminate battlefield violations.At the same time, the International Court of Justice (ICJ), also in The Hague, said on Wednesday it would hold hearings on March 7th and 8th on whether to order "provisional measures" seeking to halt Moscow's assault on Ukraine.

Unlike the ICJ, which adjudicates in disputes between states, the ICC rules on the culpability of individuals involved in violent conflicts, which means that Russian president Vladimir Putin could ultimately be convicted, probably in absentia, as a war criminal.

Ukraine and its allies called on Monday for a United Nations inquiry into the targeting of civilian infrastructure, such as schools and hospitals, and the UN Human Rights Council has agreed to hold an urgent debate on Thursday at which a Ukrainian resolution will be tabled.

Among those allies, Lithuanian prime minister Ingrida Simonyte said the actions of both Russia and Belarus should be investigated by the ICC, adding: "What Putin is doing is just murder, nothing else. I hope he will end up in The Hague."

Annexation of Crimea

Even before Russia’s most recent invasion of Ukraine on February 24th, the ICC was already investigating possible Russian war crimes in Ukraine since late 2013.

That was the period leading up to Russia's annexation of Crimea in March 2014, during which pro-Russian president Viktor Yanukovych was ousted and state police and soldiers killed scores of protesters and injured hundreds more in the capital, Kyiv.

Former ICC prosecutor Fatou Bensouda, whose term ended in June, announced in 2020 that there was enough evidence from that conflict in eastern Ukraine and Crimea to launch an investigation, but, it is worth noting, judges did not give their approval.

Reviewing that evidence, Ms Bensouda's successor, Karim Khan QC, said he too believed there was evidence that both war crimes and crimes against humanity had been committed in Ukraine – so there was a reasonable basis to "proceed with opening an investigation."

Mr Khan said on Tuesday: “Given the expansion of the conflict in recent days, it is my intention that this investigation will also encompass any new alleged crimes … that are committed by any party to the conflict on any part of the territory of Ukraine.”

Ukrainian prosecutor-general Iryna Venediktova said her staff were preparing for both domestic and international trials by documenting Russian shelling – and passing that data to the ICC.

Ukraine’s proceedings against Russia at the ICJ are quite separate. Ukraine accuses Moscow of launching the February 24th invasion on the false pretext that Kyiv had perpetrated genocide against Russian speakers in Donetsk and Luhansk.