The ICC’s investigation into the situation in Ukraine on the basis of referrals by third states parties to the Rome Statute: A commentary

This commentary discusses the decision taken by the Prosecutor of the International Criminal Court (ICC) to open an investigation into the situation in Ukraine on the basis of referrals by a number of state parties to the Rome Statute. In particular, it is interested in the prior decision that the Prosecutor had to make and actually made for that move to be procedurally possible. Indeed, the Prosecutor had to renounce to his steps towards an investigation proprio motu, i.e. on his own initiative. The most important of these steps was the request of judicial authorisation by the ICC Pre-trial Chamber. This commentary argues that for that reason, the Prosecutor’s decision was ill-advised, despite being in conformity with the Rome Statute. It argues that in that specific situation where neither Ukraine nor the Russian Federation are parties to the Rome Statute and where the Security Council has not and could not play its Rome Statute role, judicial oversight was an important – arguably the most important – legitimising factor for the investigation. The Office of the Prosecutor (OTP) could therefore not have neglected it. Going into the details of the starting investigation, the commentary also weighs the pros and cons of the Prosecutor’s decision. In other words, it balances what was actually lost and what was supposed to be gained by way of that change of procedural paths to investigation.