Euromaidan SOS: a new government bill № 7290 artificially reduces opportunities to prosecute Russian military commanders and civilian superiors liable for war crimes
For over 50 days Ukraine has been fighting with the new armed aggression where the Kremlin uses war crimes and crimes against humanity as a war tactic. The President of Ukraine and other officials always stress that those liable for these international war crimes both those who actually committed them and high-level political figures, military command of the Russian Federation, and their allies will be brought to justice.
It is a little-known fact that bringing to justice in Ukraine for international crimes is not feasible. The Criminal Code does not stipulate liability for crimes against humanity as a legal norm, while liability for war crimes is quite obscure which makes it impossible to apply. That is why since the war started in 2014 and until today Ukrainian courts have passed only four (!) verdicts of guilty for war crimes committed.
The bill on war crimes № 2689, which was expected to help solve this legal conundrum, was passed by the Verkhovna Rada of Ukraine and submitted to the President for ratification. This bill hasn’t been ratified for more than 10 months. However, human rights defenders and international organizations urged to sign it. Therefore, when Russia invaded Ukraine in February, one of the key legal fronts remained unprotected.
Nonetheless, the government decided to draft a new bill № 7290 which contains a number of problematic provisions that make it difficult to prosecute military commanders and civilian leadership of the Russian Federation for war crimes.
Yes, indeed draft law 7290 only partially implements in the national criminal law the institute of command responsibility, which is customary for modern international law. This institute provides the capacity of Ukraine to prosecute military commanders and civilian heads of the Russian Federation, commanders controlled by the Russian authorities of illegal armed formations.
The Ukrainian investigation and court in perspective will face some difficulties with showing the evidence and proving the involvement of some Russian military command in committing war crimes, for example in Bucha, Irpin, Vorzel and Motyzhyn and other towns and townships in the Kyiv region. However, pursuant to international legal norms, it is of vital importance to identify and bring to justice Russian commanders who knew about crimes committed by their inferiors, could avert and stop them, but didn’t do this, as well as didn’t ensure coming after those committing atrocities.
Unfortunately, draft law 7290 only partially uses the opportunities that open international law to the Ukrainian system of criminal justice. In particular:
– does not take into account such a form of the inaction of the commander as an infringement of international crimes of subordinates;
– according to international law, military commanders, those who actually act as military commanders and other commanders are not considered to be responsible not only when they knew of the crimes of the subordinates, but also because of the information available.
These inconsistencies, which may not be crucial at a first glance, in fact considerably narrowing the ability of Ukrainian law enforcement officers and courts to carry out criminal prosecution and punishment of the perpetrators of international crimes committed on the territory of Ukraine.
In addition, draft law № 7290 proposes to punish military commanders, persons who act as military commanders, and other chiefs for their inaction with the deprivation of liberty for a term from 7 to 10 years. At the same time, according to the provisions of the draft, the subordinates can be punished and longer-term deprived of their will or even long term deprivation of freedom, while under international law, the punishment of the inaction of commanders and superiors must be no less than for the punishment of their subordinates.
Furthermore, the style of the legal language used in the provision, which is called to present in the Ukrainian criminal law the institute of command responsibility according to the draft law №7290. This style, which is suitable for peaceful times, when it comes to sporadic and isolated cases of unlawful behavior of subordinates, demands to prove the inaction of the commander or chief in respect of each of the dozens or even hundreds of war crimes committed by their subordinates.
Under the international law, the institute of command responsibility takes much better account of the context of mass violence/atrocities and allows the commander or chief to be prosecuted and punished even if, for example, they did not stop the war crime of one subordinate, which has caused numerous war crimes of other subordinates, even if these other crimes commander or chief really tried to stop. That is, from the point of view of international law, it is important not to inaction of the commander or chief in each specific situation, but whether he provoked inaction in a specific situation further illegal behavior of subordinates.
Other shortcomings of the new government draft law 7290, are listed in the appendix to this appeal.
We do not know why the President of Ukraine did not sign the law on war criminals (№2689), supported by human rights defenders and international organizations, and who decided to prepare a new draft law and adopt it at a government meeting in this version.
We continue to hope for a constructive solution to this issue and appeal to the People’s Deputies to make the necessary changes to the draft law №7290. At a time when Russian troops raping women and children, targeting families in their homes, attack evacuation forces – one cannot deprive military commanders and civilian leaders of the Russian Federation of the possibility of avoiding responsibility for war crimes and crimes against humanity.
Annex to the appeal: Other shortcomings of the new government bill 7290
In addition to the problems with the institute of command responsibility, the draft law 7290, has other disadvantages:
1. Unlike the draft law №2689, the draft law №7290, does not contain a provision on universal jurisdiction, according to which Ukraine could carry out international crimes regardless of the place of their act and the citizenship of the person who committed such crimes. This provision may not be too relevant in the context of Russian aggression, since now international crimes are committed either against Ukraine or directly on the territory of Ukraine, which allows building criminal prosecution on the basis of other jurisdictional principles. However, it would be an important sign of Ukraine’s failure to prosecute international crimes and its readiness to assist other states in the prosecution of international crimes such as those committed by Russian citizens against Ukraine or on its territory, based on the principle of universal jurisdiction.
2. Proposed in bill № 7290 does not indicate the leadership character of the crime of aggression. According to the current international law, only military and political leaders of the state are responsible for the crime of aggression. The draft law of № 7290 provides that any person should be responsible for the crime of aggression. In practical terms, it means that each Russian prisoner of war should automatically become the suspect, then the accused and the convicted person for having committed the crime of aggression as per the criminal law of Ukraine. Considering massive atrocities committed by the combatants fighting on the side of the Russian Federation against the Ukrainians, this decision may seem fair. However, it is hard to consider it reasonable due to the consequences it may entail:
– a refusal from the leadership nature of the crime of aggression means that each Russian military taken captive should automatically have the status of a suspect in the criminal proceedings regarding a crime of aggression. As a result, they are being exchanged for Ukrainian prisoners of war will be artificially complicated by the need to abolish the applicable preventive measures and possibly the conclusion of the criminal proceedings. Such decisions, which surely have nothing in common with the administration of justice, may be interpreted by the international community as the evidence of unserious demands of Ukraine regarding the condemnation of the Russian aggression and the provision of assistance in combating the latter;
– further on, it will be practically impossible to exchange the Russian military, convicted for the aggression, for the Ukrainian military, because pursuant to the draft law, registration number 7290, the amnesty and granting of pardon for the crime of aggression are prohibited. Therefore, every case of convicting a Russian military for the crime of aggression will decrease the chances for fast repatriation of the Ukrainians taken captive;
– the practice of automatic and total criminal [proceedings] against the combatants of the other side will definitely be disapproved by the international organizations as a violation of the international humanitarian law, which could be used by the Russian authorities to discredit Ukraine among the Western partners.
3. Finally, contrary to draft law r.n. 2689, the draft law r.n. 7290 does not contain a provision, indicating the need to consider the provisions of the international legislation while applying the provisions of the Ukrainian legislation on international crimes. During the criminal proceedings of these crimes, the Ukrainian law enforcement agencies and courts will surely have to refer to the norms of the international legislation in their proceedings documents. For the accused or their unfair attorneys not to use it in their manipulations, claiming that this practice allegedly violates the principle of legality or other rights of the accused, there should be a clear legislative precaution, which would be legitimized by the reference to the norms of the international legislation in the national criminal proceedings on international crimes. The absence thereof may become “an explosive timing device” under the national practice of criminal prosecution of international crimes.
The initiative is supported by:
Center for Civil Liberties
Kharkiv Human Rights Protection Group
Ukrainian Helsinki Union on Human Rights
Ukrainian women lawyers association “JurFem”
NGO “Territory of success”
NGO “Culture against rudeness”
Crimean Center for Business and Cultural Cooperation Ukrainian House
Ukrainian center of PEN International
Ukrainian women’s veteran movement
Ukrainian women’s guard
NGO People’s Defense
NGO Human Rights Platform
International charitable organization “IZOLYATSIA. Platform for cultural initiatives”
Kharkiv based foundation Public Alternative
Association of relatives of political prisoners of the Kremlin
Regional Center for Human Rights
Tavrian Humanitarian Platform
Directors Guild of Ukraine
Open Dialogue Foundation
Anti-Сorruption Action Center
SaveDnipro / SaveEcoBot
Advocacy Advisory Panel
Human Rights Center ACTION
Cherkasy Human Rights Center
You can support the appeal via this link.