Ukraine: Stuck between Europe and Russia’s Crossfire

BY ALEXANDRA MARBAN — The first thing that comes to mind when someone mentions the Ukraine is the infamous conflict over the supply of Russian natural gas to the European Union member states through pipelines located on Ukrainian sovereign territory. Approximately one quarter of the European Union’s natural gas supply comes from Russia and 80% of it is piped through Ukraine.[1] The problem has repeatedly turned on the fact that Ukraine has not been able to pay Gazprom, the Russian company that produces and supplies all the natural gas.[2] The consequent large debts and supply shut-offs have resulted in the European Union’s involvement to bail out Kiev’s natural gas budget deficit in order to re-establish the natural gas supply in Europe.[3] One could say Kiev is the Achilles heel of the European Union when it comes to energy security and Russia, while Ukraine is highly dependent on natural gas, and without it, their economy would come to a screeching halt.[4]

After Ukrainian President Viktor F. Yanukovych broke his promise to integrate the country with the European Union by signing sweeping political and trade agreements with the European Union, a wave of pro-European protests has led to his downfall.[5] He is now in hiding, while his country is torn between the western more pro-European (supporters of recently released from jail ex-prime minister Yulia Volodymyrivna Tymoshenko) and the eastern Russian-speaking citizens.[6] The European Union is not without blame. Last year, Europe underestimated Russia’s displeasure and willingness to retaliate, gave no prospect of eventual European Union membership to Ukraine, and focused too much on what Ukraine needed to do to satisfy European demands rather than helping it prepare for economic change.[7]

As of February 2014, Yanukovych was declared unfit to be president with a veto-proof majority of more than 300 of the 450 seats in Parliament, due to his unwillingness to resign.[8] On February 26^th, Ukraine’s interim general prosecutor reported that an international arrest warrant had been requested for the ousted president due to his implication in the mass murder of civilians during the Kiev protests.[9] Unsurprisingly, the UN Office of the High Commissioner for Human Rights (OHCHR) had, in January, called for an investigation into torture allegations against Ukraine following widespread arrests of protesters, which have now been offered amnesty.[10]

The Ukrainian parliament has taken further steps and voted to adopt a resolution referring the fugitive former president Yanukovich and other high-ranking state officials (including former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka) to the jurisdiction of the International Criminal Court (ICC).[11] Among the claims against state officials are “ordering law enforcement officers to use improper suppression measures, including improper use of physical force, illegal detention, torture of prisoners, use of water cannons in near-freezing temperatures and other extreme measures” such as “the use of ‘organized criminal groups’ to attack, kidnap, torture, kill, and destroy the property of individuals based solely on their political beliefs.”[12] However, referring the corrupt individuals to the ICC will not be enough. Ukraine is not a signatory to the Rome Statute, and hence the ICC does not have jurisdiction unless the government formally invites the organization into the country, at which point the investigators will be the only persons responsible for determining whether to proceed with an investigation and who will be prosecuted.[13] It is not unpredictable that the Ukrainian parliament might be hesitant to open the floodgates to a full-on ICC investigation, especially with the country still in chaos and the interests the country has in appeasing Russia’s Vladimir Putin, but might feel pushed to comply through European pressures. Nonetheless, the purpose of the ICC is to work with a state’s judicial system and may only exercise its jurisdiction when national courts of signatory states are unwilling or unable to investigate.[14] This principle of complementarity restricts the court’s actions to cases where there has not been a previous investigation or prosecution by a State with jurisdiction.[15] Consequently, if Ukraine is serious about prosecuting former president Yanukovich through the ICC, they will abstain from trying him in their own courts and invite the ICC to intervene.