• Offene Briefe

Appeal of MEPs to Ms. President of the Commission Ursula Von Der Leyen

Appeal of MEPs in support of the ICC Prosecutor to proceed with opening an
investigation into the Situation in Ukraine and to the States Parties to the Rome Statute of the
ICC – including all EU Member States – to provide effective support to the ICC and align the
jurisdiction on the crime of aggression to the other international crimes

Dear President,

Dear Vice-President/High Representative,

With evidence mounting of Russia’s use of indiscriminate cluster munitions and potential use
of thermobaric weapons on Ukrainian cities, and the levelling of residential buildings in
Kharkiv in particular, we, undersigned Members of the European Parliament, express our
profound concern at the at the unfolding of an increasingly violent and dramatic situation in
Ukraine characterized by the perpetration of war crimes or crimes against humanity.

As reaffirmed by the United Nations’ General Assembly “Uniting for Peace” resolution
adopted on 2 March 2022, which “[d]eplores in the strongest terms the aggression by the
Russian Federation against Ukraine in violation of Article 2 (4) of the Charter”, this tragic
situation has been brought about by a war of aggression that has been the consequence of the
planning, ordering and waging of a crime of aggression, in the meaning of Article 8bis of the
Rome Statute of the ICC.

The newly appointed Prosecutor of the International Criminal Court (ICC) in The Hague, Mr
Karim A. A. Khan, has announced that he will launch an investigation into possible war crimes
or crimes against humanity in Ukraine. The Prosecutor also noted that the Court’s jurisdiction
– as of today – may not extend to the crime of aggression.

Even though neither Russia nor Ukraine are States Parties to the Rome Statute, after the events
of Maidan in November 2013, which had led to a violent repression of street demonstrations
by the government of President Janukovyč and 22 February 2014, Ukraine, sent on 9 April
2014 to the Registrar of the ICC, pursuant to Art. 12(3) of the Statute (and following the
relevant decision of the Ukrainian Parliament), a Declaration of ad hoc acceptance of the ICC’s
jurisdiction over criminal acts committed on its territory from „21 November 2013 to 22
February 2014“, which was later extended to an indefinite period of time, with a further ad hoc
Declaration, which was sent to the Registrar of the Court on 8 September 2015.

In the Resolution of the European Parliament of Tuesday 1 March 2022, we underlined that
“the EU and its Member States will ensure that the perpetrators of war crimes and human rights
violations, including those who assisted such crimes by way of propaganda, will be held
accountable” and therefore we called on the EU and its Member States to “”work with
international bodies to collect evidence and to support and promote the International Criminal
Court’s jurisdiction and investigation of any war crime committed within the territory of
Ukraine since 20 February 2014 onwards.

On the following day, all the 27 EU Member States – jointly with other 12 States Parties to the
Rome Statute (Albania, Australia, Canada, Colombia, Costa Rica, Georgia, Iceland, New
Zealand, Liechtenstein, Norway, Switzerland and UK) referred the situation in Ukraine to the
jurisdiction, hence demonstrating once again that the fight against impunity for international
crimes is instrumental to the affirmation of the primacy of the Rule of Law and to the
restoration of International Peace and Security.

27 EU Member States, the above mentioned 12 States and other 102 States – for a total of 141
States – voted on 2 March 2022 to adopt a UN General Assembly “Uniting for Peace”
resolution, which replaces the Chapter VII resolution, vetoed by Russia, that should have
ascertained the aggression against Ukraine in accordance with Article 39 of the UN Charter.
Similarly, in light of a jurisdictional provision in the Amendments to the Rome Statute of 2010
requiring the consent of the State of nationality of the aggressor for the exercise of the Court’s
jurisdiction on aggression (in the absence of a UN Security Council referral), the ICC has been
blocked on the crime of aggression by the non-ratification by Russia of the amended Rome
Statute. In line with the letter and spirit of the European Parliament Resolution on the crime of
aggression of 17 July 2014, which calls for a revised common position of the EU for the
activation and universalization of the ICC jurisdiction over aggression, it is unacceptable that
the crime of aggression against Ukraine, within which all the other international crimes are
being perpetrated, would remain unpunished.

In its Annual Human Rights and Democracy in the world Report, the EU reputedly confirmed
its full support to the global fight to end impunity and its continued commitment to ensure
that perpetrators of the most serious crimes under international law are held accountable for
their actions. The efforts to achieve justice for victims of genocide, war crimes, crimes against
humanity and the crime of aggression also include providing support and assistance to the
International Criminal Court (ICC) and to cooperate with it.

The support of States Parties and the international community more broadly will be essential
as we seek to meet the inherent challenges faced in the conduct of the investigation into the
crimes committed in Ukraine. In particular, in a statement dated 28 February 2022, the ICC
Prosecutor has announced that he “will be calling for additional budgetary support, for
voluntary contributions to support all our situations, and for the loan of gratis personnel. The
importance and urgency of our mission is too serious to be held hostage to lack of means.”
(Cf. www.icc-cpi.int/Pages/item.aspx?name=20220228-prosecutor-statement-ukraine).

We therefore want to express our preoccupation concerning the unfolding of events in Ukraine
and reiterate the European Union and EU Member States support to the ICC and we call on
you, as Commission President and VP/HR, by virtue of your roles,

– to call on all those engaged in hostilities in Ukraine to adhere strictly to the applicable rules
of international humanitarian law, human rights law and international criminal law;

– to speak on behalf of the European Union to clearly and publicly support the Prosecutor in
the fulfilment of his statutory mandate;

– coordinate and support the Member States’ offers of voluntary contributions to address the
lack of means denounced by the ICC Prosecutor in his statement of 28 February 2022 in which
he announced the opening of an investigation on the situation in Ukraine;

– re-open the EU Decision (common position) of 2011 on the ICC and include the strongest
possible support for the criminalization of aggression, as defined in Article 8bis of the Rome
Statute, and launch a joint initiative by all like-minded States in the Assembly of States Parties
to the Rome Statute for the removal of the procedural conditions of Article 15 bis that exempt
nationals of States Non Parties to the Statute (e.g. the leaders of the Russian Federation) from
the ICC jurisdiction on the crime of aggression: This will align the jurisdictional regime on the
crime of aggression to the one applicable to genocide, crimes against humanity and war crimes
in accordance with the Rome Statute;

– to clarify what initiatives the UE intends to take to reaffirm this stronger support for the ICC
and their role in upholding international law and contribute to the fight against impunity
worldwide, which shall include the support of global civil society advocacy-campaigns against
impunity and in support of international criminal justice.

We believe greater efforts from the European Union are needed now more than ever to protect
the global rule of law and the civilian population of Ukraine.

Yours sincerely,

Fabio Massimo CASTALDO, MEP, NI, Chair of the PGA Group in the European
Parliament

Chiara Maria GEMMA, MEP, NI

Peter VAN DALEN, MEP, EPP

Miriam LEXMANN, MEP, EPP

Tiziana BEGHIN, MEP, NI

Thijs REUTEN, MEP, S&D

Urmas PAET, MEP, RENEW

Domènec RUIZ DEVESA, MEP, S&D

Mario FURORE, MEP, NI

Eugen TOMAC, MEP, EPP

Jan-Christoph OETJEN, MEP, RENEW

Juozas OLEKAS, MEP, S&D

Pierre LARROUTUROU, MEP, S&D

Andrus ANSIP, MEP, RENEW

Bettina VOLLATH MEP, S&D

Anja HAZEKAMP, MEP, The Left

Petras AUŠTREVIČIUS, MEP, RENEW

Mounir SATOURI, MEP, GREENS/EFA

Patryk JAKI, MEP, ECR

Vlad GHEORGHE, MEP, RENEW

Sergey LAGODINSKY, MEP, GREENS/EFA

María Soraya RODRÍGUEZ RAMOS, MEP, RENEW

Rasmus ANDRESEN, MEP, GREENS/EFA

Dorien ROOKMAKER, MEP, ECR

Nils UŠAKOVS, MEP, S&D

Dino GIARRUSSO, MEP, NI

Juan Fernando LÓPEZ AGUILAR, MEP, S&D

Reinhard BÜTIKOFER, MEP, GREENS/EFA

Heidi HAUTALA, VP, GREENS/EFA

Nikolaj VILLUMSEN, MEP, The Left

Helmut SCHOLZ, MEP, The Left