The day after the Russian invasion of Ukraine, which occurred in the early morning hours of February 24, 2022, the Prosecutor of the International Criminal Court (ICC), Karim Khan, stated he had been “closely following recent developments in and around Ukraine with increasing concern.” With this immediate response, somehow uncommon for its fastness in the history of the ICC Office of the Prosecutor (OTP), Karim Khan reminded all sides conducting hostilities that pursuant to the article 12 Rome Statute declaration lodged by Ukraine on September 8, 2015, the OTP can “exercise its jurisdiction over and investigate any act of genocide, crime against humanity[,] or war crime committed within the territory of Ukraine since February 20, 2014[,] onwards.”

Notwithstanding an existing Ukrainian self-referral of jurisdiction to the ICC [with] respect [to] war crimes and crimes against humanity in reference to an earlier Russian incursion, as well as the opening of an investigation, the recent invasion will not allow the ICC to expand its case to include potential charges of aggression.

In this Article, we will explore and propose our view on the main procedural challenges of the ICC investigation into the situation of Ukraine, namely (1) the procedural issues related to the preliminary examination, which are only apparent since the preliminary examination framework itself is based on extra juridical rules; (2) the insurmountable issues related to a de facto lack of declaration of acceptance of jurisdiction and the lack of Rome Statute membership; and (3) the inherent procedural weaknesses that characterize the ICC statutory law as a whole, specifically its composition, which could negatively impact the efficiency of the entire proceeding.