The precedent of Ukraine
One well known example of a successful filing of a court case with the ICC is the case of Ukraine over crimes against humanity committed during the events on the Maidan after November 21, 2013, and other events in the country after February 20, 2014 (Russia’s annexation of Crimea and military intervention in the eastern regions of Ukraine). At the time of the crimes, Ukraine was not one of the countries of the Rome Statute, but immediately after the new government came to power in the country, the Verkhovna Rada of Ukraine lodged a declaration under article 12(3) of the Rome Statute accepting the ICC’s jurisdiction over alleged crimes committed on its territory, which allowed the International Court to initiate a preliminary examination of the situation in Ukraine. This precedent may be important for Belarus to study particularities of ICC proceedings on the example of a country that, while still not among the signatories of the Rome Statute, still retains a good prospect that the International Court will start investigations of crimes committed on its territory.
Preparing the dossier and initiating the case
There is every reason to expect the fall of the Aleksander Lukashenka’s regime in the nearest future in Belarus. It is very likely as well that the new government will request ratification of the Rome Statute as soon as it is installed. In the very least, there will be a possibility to ask the ICC to accept jurisdiction over the case of alleged crimes against humanity that took, and are still taking place in Belarus.
In anticipation of that, the work on preparing a dossier of factual materials on crimes against humanity should be started. Once the ICC has the jurisdiction over the crimes committed on the territory of Belarus, the dossier will be send for consideration by the Prosecutor of the ICC, who can initiate an investigation proprio motu, that is, on her own initiative. The precedent of Ukraine can be used as a template case, from which Belarus can learn – whether regarding mistakes to avoid, or successful practice to use. Moreover, the scale and severity of the crimes committed in the wake of August elections suggest that Belarus has probably a stronger case than Ukraine in terms of those crimes to be qualified as crimes against humanity by the ICC.
In any event, preparing a court case will require substantial time and a lot of work. The main task we are now facing is to collect the necessary amount of materials with factual evidence of crimes and prepare it in a format that meets the standard of international courts.