The Opinion of the Center for Civil Liberties on the Alignment of the Ukrainian Criminal Legislation with International Criminal Law
Several main important elements are required for the investigation of international crimes committed by the Russian Federation in Ukraine:
- A clear legislation that would define these crimes and be aligned with international law
- Procedures to govern investigations
- Relevant institutions with the capacity to conduct investigations
- Judges with enough expertise for hearing such cases.
This opinion of our Organisation is based on the publication “Chronicles of the Birth of a Cargo Cult: How and Why the Process of Aligning the Ukrainian Criminal Legislation with International Criminal Law is Moving in the Wrong Direction” where each outlined position is much more detailed.
For as long as ten years since the beginning of the Russian Federation’s aggression, Ukraine has been demonstrating its inability to adopt appropriate criminal legislation, which is rather regrettable. Now, we are still debating the need to adapt our national legislation to the requirements of international law, in particular, those of the Rome Statute of the International Criminal Court.
The inconsistency of the national legislation creates serious challenges and complexities for investigating crimes committed by Russia and establishes practices non-compliant with international law.
Since 2015, we have been working hard with many other experts and human rights defenders to address this problem. Initially, human rights defenders and government officials developed draft law No. 9438, which was converted into draft law No. 2689 in the Parliament of the new convocation. The Parliament adopted it on 20 May 2021. It was a product of numerous consultations conducted over many years by authorities, scholars, and civil society. However, since then, the President has been unwilling to sign it.
Later, in 2022, the Government submitted draft law No. 7290 to Parliament, having incorporated many of the provisions of draft law No. 2689 into it. However, it has not yet been considered by the Parliament.
In August of this year, the Parliament finally ratified the Rome Statute of the International Criminal Court. In October, the law, which partly addressed the issue of its implementation, became effective (draft law No. 11484 was adopted). Despite having many shortcomings, it provided slow progress.
This law dated 9 October 2024, introduced the following amendments to the Criminal Code of Ukraine, bringing it partly in line with international law:
a) a provision on universal jurisdiction in respect of crimes under international law has been added to Article 8 of the Criminal Code;
b) the concept of command responsibility has been introduced into the Ukrainian criminal law (Article 31-1 of the Criminal Code);
c) crimes against humanity have been recognized under the criminal law of Ukraine as a distinct type of criminal offense (Article 442-1 of the Criminal Code of Ukraine);
d) the legal classification of the crime of genocide (Article 442 of the Criminal Code) has been brought into better compliance with international law.
However, this Law failed to provide full compliance of the Ukrainian criminal legislation with international law, for instance:
a) Articles 31-1, 442, and 442-1 of the Criminal Code have been formulated, in the absence of any rational reasoning, in several aspects in more broad terms and in several aspects in more narrow terms than required by international law;
b) the title of Article 437 of the Criminal Code has been changed from “Planning, Preparation, Launching and Waging of an Aggressive War” to “Crime of Aggression” however, this change failed to ensure that this Article complies with Article 8bis of the Rome Statute of the International Criminal Court of 1998;
c) instead of introducing an exhaustive and extensive “catalogue” of war crimes, the Law of 9 October 2024 preserved the semi-blanket nature of Article 438 of the Criminal Code and further worsened the wording of its Part 2 by replacing the words “the same acts if combined with intentional murder” with “the same acts if they caused the death of people”;
d) the provisions of the General Part of the Criminal Code require to be amended to exclude impunity for perpetrators of crimes under international law;
e) explanatory notes to Articles 376 and 384 of the Criminal Code added to implement Article 70(1) of the Rome Statute require certain corrections.
Provisions of international law can be implemented in two alternative ways: either by amending criminal and criminal procedural codes or by adopting a separate law exclusively to address international crimes, including all the specifics of their investigation. Both ways are practiced by various countries and if implemented correctly, they are almost equally effective.
Since 2015, Ukraine has been pursuing the first implementation method of amending codes. All the draft legislation considered until now and the law that was recently adopted in October 2024 follow this logic. Over the years, many judges, investigators, and prosecutors have been trained to apply this approach.
However, entirely unexpectedly, with virtually no public discussion or consultation with investigating authorities, the Parliament adopted draft law No. 11538 and draft law No. 11539 related to the former in the first reading.
These projects embody an alternative approach to implementing national legislation that Ukraine has never applied since 2015.
At present, we see no single rational argument as to why the country should fall back for ten years in terms of investigating international crimes and starting everything from scratch. There are no logical arguments or pressing needs that would warrant such a radical legislative revision.
We are urging the Parliament to withdraw both draft laws, in particular, because they are poorly aligned with the effective criminal and criminal procedure codes. Otherwise, the consequences for all ongoing investigations of international crimes in Ukraine can be extremely negative, in particular:
1) Draft law No. 11538 pretends to be a law that, by establishing liability for crimes under international law, would operate autonomously from the Criminal Code (in parallel with it). However, it fails to provide for the termination of Articles 437, 438, 442, and 442-1 of the Criminal Code, which currently criminalizes such conduct to a certain extent.
Instead, draft law No. 11538 suggests that these articles be declared non-applicable. In view of the general legal uncertainty of the definition of a ‘law that is in force but is not subject to application’ and its dubious compatibility with the Constitution of Ukraine, Draft Law No. 11538 will produce a situation where, if adopted, those convicted under it will have reasonable grounds to file constitutional petitions claiming that Article 8 of the Constitution of Ukraine has been violated and applications to the European Court of Human Rights claiming that Article 7 of the European Convention on Human Rights has been violated.
The sanctions provided for in Articles 437, 438, 442, and 442-1 of the Criminal Code, which, under the logic at play in Draft Law No. 11538, should remain ‘in force but not applicable,’ are considerably more lenient than those proposed in the provisions of Draft Law No. 11538. Consequently, the defendants will most likely be able to prove that the harsh penalties imposed on them were unforeseeable to them;
2) Draft Law No. 11539, supplementary to Draft Law No. 11538, introduces amendments to the Criminal Code that are intended to adapt the Code to the realities of its ‘coexistence’ with another law also criminalizing the same acts. However, these amendments are manifestly insufficient, meaning that most provisions of the General Part of the Criminal Code will either be non-applicable to international crime cases or force courts to use legal analogy in criminal law.
In particular, many provisions of the Criminal Code’s General Part are formulated using the wording “this Code” or its derivatives. Given the fact that Part 5 of Article 3 of the Criminal Code of Ukraine prohibits using an analogy in criminal law, these words cannot be interpreted as covering both the Criminal Code and the Law of Ukraine “On Criminal Liability for International Crimes”, should the latter be adopted. Accordingly, it will not be possible to apply the provisions of the Criminal Code that use the wording “this Code” or its derivatives, for instance, the definitions of an attempted criminal offense (Part 1 of Article 15 of the Criminal Code), guilt (Article 23 of the Criminal Code), perpetrator of a criminal offense (Part 1 of Article 27 of the Criminal Code) to crimes covered by draft law No. 11538. This problem can be resolved only through systemic revision of the General Part of the Criminal Code, which is something that Draft Law No. 11539 avoids for unclear reasons. Should the draft law No. 11538 be adopted as a law, the lack of such revision poses the risk of either the impossibility of the “normal” application of its provisions or widespread violations of the principle of legality when applying them.
3) Draft law No. 11538 manifestly fails to reach its goal and to bring the Ukrainian laws on criminal liability in full compliance with the requirements of the Rome Statute of the International Criminal Court.
Numerous provisions of the draft law have been formulated using terminology alien to the official translation of the Rome Statute as approved by the Verkhovna Rada of Ukraine. For instance, Article 7(1) of the Rome Statute refers to “severe deprivation of physical liberty,” but Article 21 of draft law No. 11538 refers to “strict deprivation of physical liberty”; Article 7(1) of the Rome Statute refers to “other grounds that are universally recognized as impermissible under international law,” but Article 21 of draft law No. 11538 refers to “discriminative motives recognized as impermissible under international law.” These and other instances will definitely generate unjustified and unnecessary difficulties for the effective criminal prosecution and punishment of individuals who committed crimes under international law.
4) Draft law No. 11538 contains a lot of apparent distortions of international law, which result in a narrower criminalization of crimes under international law at the national level compared to international law.
For example, Article 8(2)(a) of the Rome Statute makes a distinction between the war crimes of “inhuman treatment” and “wilfully causing great suffering”. However, for unclear reasons, Article 25 of draft law No. 11538 “merges” them into a single crime of “performing other inhuman treatment in respect of a person consisting of causing great suffering.”
Hence, both draft laws No. 11538 and No. 11539 not only fail to provide that the issues remaining after the Law of Ukraine became effective on 9 October 2024 are eliminated but, moreover, threaten to entirely undermine Ukraine’s efforts to prosecute and punish crimes under international law that have been committed as part of Russia’s armed aggression. The shortcomings that both draft laws are densely packed with can not be comprehensively addressed within the second reading procedure provided that the Law of Ukraine “On the Rules of Procedure of Verkhovna Rada of Ukraine” is complied with.
Importantly, the entire transformation of the approach to the legal definition of international crimes will require revising and adapting the current practice developed over the past ten years. It will require substantial material and time resources to train investigators, prosecutors, and judges and to align new procedures. This will significantly slow down or even stop the investigation of cases or hearing them in courts.
We see no single substantial reason why Ukraine must bear all these disastrous consequences. The introduction of this regulation produces no positive effects in practice or even in theory compared to the current model. We are starting from scratch instead of finally focusing our efforts on refining the applicable laws.
Under these circumstances, we believe that draft laws No. 11538 and No. 11539 should be withdrawn.
We deem it critically necessary that the Parliament, the Ministry of Justice, investigative authorities, scholars, and civil society consolidate their efforts to promptly finalize the implementation of Ukrainian legislation’s provisions.
We call on all the stakeholders to continue working on aligning the Ukrainian criminal legislation with international criminal law based on the governmental draft of the Law of Ukraine “On Introducing Amendments to the Criminal Code of Ukraine and the Criminal Procedural Code of Ukraine” No. 7290.
We are convinced that the investigation of Russia’s crimes in Ukraine is a matter of national importance. We are all responsible for ensuring that these crimes end in real investigations, a real search for the guilty worldwide that will last for the rest of their lives, and the real administration of justice. Given the number of committed crimes, these investigations will last for decades. In the face of crime victims and future generations, we have no moral right to be complacent about our incapacity to arrange investigations properly. This work begins with fixing national legislation. We must not allow that, after ten years, someone could claim that these crimes did not happen because they were not investigated.
