It was expressed in a statement made by the International Criminal Court that Russian annexation of Crimea is a military crisis between Russia and Ukraine, and that with this act Russia violated the territorial integrity of Ukraine. In return, Russia announced on 16.11.2016 the withdrawal of its signature from the Rome Statute, the foundational treaty of the International Criminal Court, which Russia signed as a founding member in 2000. Although Russia had signed the Rome Statute, it had never become a party to it as the treaty was never approved within the Russian Parliament. In other words, as Russia never carried out the legal transactions which would make the Statute binding for itself, the Rome Statute had never entered into force in Russia. States are not forced to approve the treaties that they sign. In other words, if a signed treaty is not approved within the domestic legal order, there can be no international responsibility for the state. However, the 18th article of the Vienna Convention on the Law of Treaties (VAHS) imposes a set of obligations for states who sign a treaty until the treaty is approved within its domestic legal order. Accordingly, until states clarify their will to not ratify a treaty, they have to abstain from all sorts of actions and demeanour intended to abolish the subject matter of a treaty. In other words, even if a state is not obliged to approve a treaty, it has to abstain from all actions and demeanour intended to abolish the subject matter of a treaty until it makes public to other states that it will not sign it. If this obligation is violated, there is international liability for the state. In this regard, Russia had been forced to follow the liabilities put in place by the Rome Statute and to abstain from all actions and demeanour intended to abolish the subject matter of the treaty, from the year 2000 when it signed it, until 16.11.2016 when it made public its will to withdraw from it. Even if it was not a party to the Statute, it can be said that the root cause of why Russia made this announcement is to evade from an obligation to abstain from all actions and demeanour intended to abolish the subject matter of the treaty. Another possibility for withdrawing its signature from the Rome Statute is to escape the responsibility of the war crimes they committed in cooperation with Assad forces against the civilian population in Syria. In addition, Great Britain’s recent petition in the International Criminal Court for the investigation of the war crimes Russia committed in Syria may have pushed Russia into making such a move. Even with such a step, it seems that it is no longer possible to put Russian officials on trial in the International Criminal Court for the war crimes they committed. This is because only under certain situations the International Criminal Court assumes juridical power. Accordingly, the court has jurisdiction if the crime is committed in a country that is a party to the Rome Statute (the principle of territoriality) or by a citizen of a country that is party to the Rome Statute (nationality principle). Apart from these two basic conditions, there are some exceptional cases where the court gains jurisdiction without the requirement of these two criteria. The first of these; with the decision made within the 7th article of the Charter of the United Nations, on situations where such crimes threaten or infringe international peace and security, the Security Council may pass the situation to the Prosecution Office of the International Criminal Court and launch an investigation on the parties involved. The second; states that are not a party to the Statute may announce recognition of jurisdiction to the International Criminal Court with regards to crimes committed within their states or in places under their domination. In conditions where the Security Council passes the crimes on to the Court, or in situations where not-party states authorize the court on their own accord, the territoriality and nationality principles are not required.
As is seen, as Russia is no longer a party to the Statute, the principles of nationality and territoriality are not to be found for Russia. Apart from this, it is not virtually possible for the Security Council to make a decision. Being one of the five permanent members and maintaining a veto power, it is unthinkable for Russia to allow such an action for itself. By announcing its withdrawal from the Rome Statute, Russia has also eliminated the liabilities originating from the 18th article of the Statute. As a result, it is no longer possible to investigate the war crimes committed by Russia in cooperation with the Assad Regime in Syria.
1. http://www.bbc.com/turkce/haberler-turkiye-37999518, Date of access, 21.11.2016.
2. http://tr.euronews.com/2016/11/17/rusya-uluslararasi-ceza-mahkemesi-nden-ucm-cekildi-ucm-nedir-nasil-isler, Date of access, 21.11.2016.
Tacettin ÇALIK, Analiyst, Strategic Outlook
* This article is published at the site of the International Strategic OutlookInstitute. For accessing the article: Strategic Outlook: http://www.strategicoutlook.org/asia—pasific/news-the-results-of-rubian-withdrawal-from-the-rome-statute.html