ICC trial may help unite Ukraine, but move it away from West

The election of a new president with majority support from the voters is an important milestone in the crisis in Ukraine. Now the change of
government that began in Maidan Square finally has democratic legitimacy. Yet the country may still suffer from long term political instability
despite of the free and decisive election, because of a decision taken by the pro-American interim administration to refer leaders of the Yanukovych government to the International Criminal Court.

Ukraine, as with America and Russia, is not a signatory to the Rome Statue, the charter that underpins the ICC. But Ukraine’s parliament chose voluntarily to refer deaths of more than 100 protesters in Maidan Square during the overthrow of the last government to the Court and has called publicly on its Prosecutor Fatou Bensouda to make preparations to investigate. This is understandable when the interim government was seeking to reinforce its legitimacy and given the deep mistrust by Ukrainians of their own justice system: the 2013 Transparency International Corruption Perceptions Index rated Ukraine 144th out of 175 countries – on a par with Central African Republic and Nigeria.

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While the ICC cannot be instructed to prosecute specific individuals, Ukraine’s parliament has publicly named former President Yanukovych as perpetrator of the deaths in Maidan and has called for his international trial along with those closest to him in government. There will no doubt be many in America who would view Yanukovych and his associates sent to The Hague as justice well served. Yet it could not be delivered were only one side of divide put in the dock: indeed the ICC has publicly stated it will not accept a mandate that sees only former Yanukovych government officials prosecuted, and not protest leaders, many of whom are pro-American. To prosecute only those the protesters toppled would smack of “victor’s justice”.

This situation poses as much of a challenge for America and its European allies as it does for the Court. The trial of senior protest leaders who
now support the new pro-Western President Petro Poroshenko would inevitably lead to any information on American and EU support and funding for the demonstrators being made public. When the US has accused Russia of blatant interference in the political affairs of an independent state, leaders in Washington, London and Brussels may feel the moral authority they have monopolised through this crisis would be undermined if evidence became public they had been engaged in similar tactics in order to bring to power those they support.

The danger for the ICC is different, if no less perilous. In its 12-year history the Court has been accused of failing to secure the trials of
those who most benefited from the crimes they investigate. The Court’s most reported cases to-date, of the current President Kenyatta and Deputy President Ruto of Kenya for acts of violence committed during their country’s disputed poll of 2007, are not trials of those who have ever been considered the ultimate beneficiaries of the post-election unrest. Indeed, neither Kenyatta nor Ruto were candidates in the presidential election to which their indictments relate. The violence was unleashed in the names of Mwai Kibaki and Raila Odinga, the two names on the ballot that year.

Similarly in Ukraine, it is unlikely those who most stood to benefit from the violence will be brought to trial. Former President Yanukovych is now in hiding in Russia which, as it does not recognize the ICC's jurisdiction, is highly unlikely to hand over their former ally to the
Court even if extradition were officially requested. The leaders of the street protests have been prominent figures in the pro-Western interim
administration in Kiev, and the chance of them volunteering to stand trial at The Hague is small.

The ICC’s experience of the Kenyan trials also has another parallel for Ukraine. Kenyatta and Ruto were considered politically finished at time of their indictment: both clearly coveted the highest office, but few in Kenya or anywhere else in the world thought they had a chance of being elected once crimes against humanity charges were officially levelled against them. Yet these two youthful leaders who had opposed each other and whose tribes and geographical homelands had long histories of confrontation fused together a joint ticket for the presidency. Their successful bid was based on a game plan that rallied patriotic sympathies of the Kenyan people against external pressure – from the ICC and its mainly Western sponsors. Their victory has led to strained relations, particularly with America and Great Britain, at the very time when the West needs Kenya to address serious challenges from Islamic terrorists emanating from its neighbour Somalia.

It is possible a similar confluence could occur in Ukraine. With only those who did not stand to benefit directly from the violence likely to
head for the dock, Ukraine may well achieve the unity it desperately needs, but through leaders of the future united through circumstance in a battle against both the ICC and its backers.

Trials that, as an unintended consequence, move Ukraine closer to Russia and away from America and the West would not deliver the improvements to governance and the rule of law most Ukrainians desire. That is why the ICC may be wise to think twice before taking this referral forward, even if in the coming months the crisis in Ukraine continues and pressure to begin an ICC investigation grows stronger.

Lakha and Young are barristers at 9 Bedford Row International Chambers, London. Lakha is one of the UK's leading lawyers. Young is Lead Defence Counsel at the Special Tribunal for Lebanon, in the Hague.