Journal of International Criminal Justice Advance Access originally published online on May 26, 2005
Journal of International Criminal Justice 2005 3(3):621-626; doi:10.1093/jicj/mqi048
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The ICC and Russian Constitutional Problems
* Professor of International Law, Diplomatic Academy, Moscow; btuz{at}newmail.ru. The views expressed in this paper are those of the author; they may differ from those of the Russian Government, and should not be attributed to persons or institutions with which the author may be associated.
The Statute of the International Criminal Court (the ICC Statute) has not yet been submitted to the Russian parliamentary chambers, the Duma, and the Council of the Federation. However, an Inter-Agency Panel led by the Ministry of Justice has been set up, with a view to drafting amendments to current Russian legislation and facilitating Russia's cooperation with the ICC. Major problems standing in the way of Russia's ratification include certain provisions of Russia's Constitution, which, for instance, do not provide for an international court substituting national courts, and lay down the right to jury trial and the right to seek pardon. However, there are various ways of reconciling the Constitution with the ICC Statute. In short, there are no insurmountable legal hurdles to harmonizing the Russian Constitution and laws with the ICC Statute: the question of Russia's ratification is mostly a question of political will.
1 Ironically, both have signed bilateral ‘Article 98’ agreements with the United States. To the best of this author's knowledge, Russia had been approached with an offer to conclude a similar accord but suggested, as part of a deal, certain measures in the field of mutual legal assistance in criminal matters that the US side found unacceptable.
2 For a more detailed discussion, see this author's Konstitutsiya Rossiyskoy Federatsii i Statut Mezhdunarodnogo Ugolovnogo Suda: Vozmozhniye Puti Garmonizatsii [The Constitution of the Russian Federation and the Statue of the International Criminal Court: Approaches to Harmonization], in Russian Yearbook of International Law, Special Issue (in Russian, 2003), at 124–132.
3 Article IV of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
4 See the Judgment of 11 July 2000.
5 Incidentally, the Constitutional Court of the Ukraine found an inconsistency between the Statute and the Ukrainian Constitution for this very reason. See opinion of the Court #3-b, of 11 July 2001. The English translation is on file with the author. See also Progress Report by Ukraine: The Implications for Council of Europe Member States of the Ratification of the Rome Statute of the International Criminal Court, CE doc. Consult/ICC (2001), Strasbourg, 9 August 2001, 26.
6 See, B. Tuzmukhamedov, ‘The Implementation of International Humanitarian Law in the Russian Federation’, 85 International Review of the Red Cross (30 June 2003) no. 850, at 393.