The Ukrainian Week of International Criminal Justice was held in Kyiv under the auspice of the CCL
The 17th of July commemorates the anniversary of the Rome Statute adoption on 17 July 1998 and the foundation of the International Criminal Court in the Hague, the first-ever permanent body of international justice that has jurisdiction directly under international law to prosecute the most serious crimes.
In order to commemorate the anniversary, CCL together with partners organized a Ukrainian International Criminal Justice Week (18-22 July 2022) discussion focusing in particular on the implementation of the Statute, as well as on achievements, best practices and challenges in that regard.
It is our joint undertaking together with the PILPG (Public International Law & Policy Group), the Ukrainian Association of International Law, the Taras Shevchenko National University of Kyiv, and the Mission of the President of Ukraine in the Autonomous Republic of Crimea.
This Conference brings together eminent lawyers, researchers, experts, state servants and representatives of international and regional organizations and civil society.
17 July unites people all over the world who wish to strengthen justice, promote victims’ rights, and help prevent crimes that threaten the peace, security and well-being of the world.
This day is also a reminder to honor the work of individuals working to advocate the fundamental human rights of victims affected by criminal acts.
In the course of the 20th century, failing twice to liberate humanity from the horrors of world war and witnessing the most terrifying, inhuman events (Holocaust), the international community put a great effort into the development of International humanitarian law. The adoption of the Geneva Conventions (GC) in 1949 brought radical changes – the convention straightened the applicability of IHL by regulating IAC (international armed conflict ) more thoughtfully and paying more attention to NIAC (non-international armed conflict). Nowadays, the following controversial question arises: Can IHL in its current state, address the instruments of modern warfare during the Russian Federation’s illegal aggression against Ukraine.
While the Geneva Convention exists to anticipate and prevent human rights violations via the promotion of IHL compliance, the Rome Statute adoption on the 17th of July 1998 enables criminal prosecution. The ICC began operations on the 1st of July 2002, upon the entry into force of the Rome Statute, a multilateral treaty.
The Rome Statute grants the ICC jurisdiction over our main crimes: The crime of genocide, crimes against humanity, war crimes and the crime of aggression. Yet, neither Ukraine nor Russia is a state party to the ICC Rome Statute. However, Ukraine lodged two declarations (first from 21.11.2013 to 22.02.2014, second from 20 February onwards) with the Court, thereby accepting ICC jurisdiction over the alleged crimes committed on the territory of Ukraine. Russia on the other hand withdrew its signature from the Rome Statute (2016).
Correct law application is crucial for thousands of soldiers and non-combatants from both sides of barricades. For instance, the application of the Geneva Convention III, among others, defines guarantees and standards of imprisonment assigned to prisoners. Rebels, on the other hand, enjoy minimal standards of imprisonment guaranteed by international customary law, international human rights law and national criminal legislation. Such issues as combatant status, use of deadly force, status-based targeting, humanitarian assistance, restrictions on weapons and methods of warfare are those significant implications of conflict classification.
Discussion topic of the first day: The 20th anniversary of the International Criminal Court: from a controversial past to a successful future?
Mykola Hnatovsky – “The dream of international criminal justice: expectations, reality and prospects“.
Judge of the European Court of Human Rights (ECHR, Strasbourg, France), First Vice President of UAMP, Associate Professor of International Law, Institute of International Relations, Taras Shevchenko National University of Kyiv, PhD, Associate Professor
Gaiane Nuridzhanian – “International Criminal Court in the Ukrainian Context: Obstacles and Achievements“.
Lawyer, researcher, and lecturer of the Department of International and European Law of the National University. “Kyiv-Mohyla Academy”, researcher of the “FAKENEWS” project at the University of Tromsø, Norway. PhD in Law (University College London), Master of Laws (University of Cambridge). She worked as a lawyer at the European Court of Human Rights, the Council of Europe and the International Criminal Court.
Kate Gibson – “The Fairness of Trials at the ICC“.
Lawyer specializing in International Criminal Law and International Human Rights Law, who has been appearing before the international criminal courts and tribunals since 2005, in cases arising out of conflicts in Rwanda, the DRC, the former Yugoslavia, Sierra Leone, Cambodia and Kosovo. In particular, she has appeared as counsel for two accused as counsel before the ICC (Jean-Pierre Bemba and Bosco Ntaganda), and was a legal consultant to the UN Fact-Finding Mission for Myanmar. Kate is also a Senior Legal Advisor with the Public Interest and Policy Law Group (PILPG) in Washington, DC.
To learn more, watch a video.
Discussion topic of the second day is: The crime of aggression against Ukraine – possible mechanisms of criminal prosecution and punishment at the international level
Sergiy Petukhov – “We live in a world where dictators are not responsible for aggression. How can we change that?“
Ukrainian scholar and politician, senior lecturer of the Department of International and European Law of the National University “Kyiv-Mohyla Academy”, Deputy Minister of Justice of Ukraine for European Integration in 2015-2019.
Frederika Schweighoferova – “Overview of PGA project in Ukraine and worldwide” Director, Rome Statute system Campaign, Parliamentarians for Global Action.
You can listen to the lectures of the second day of the Ukrainian Week of International Criminal Justice here.
David Donat-Cattin speak about “The crime of aggression: between UN broad definition and advantages of amending Rome Statute”.
General Secretary of Parliamentarians for Global Action (PGA); Associate Professor of International Law, Center for Global Affairs, New York University (NYU). Watch here.
Special guest of the Ukrainian International Criminal Justice Week – Sir Howard Morrison.
Mr. Morrison speaking: “On the way to the establishment of the Special Tribunal for the Punishment of the Crime of Aggression against Ukraine”.
Sir Howard Andrew Clive Morrison
Order of St Michael and St George, The Most Excellent Order of the British Empire, Queen’s Counsel. Distinguished British lawyer, from 2011 to 2021 a Judge of the International Criminal Court based in The Hague, Netherlands, independent adviser to the Prosecutor General of Ukraine Iryna Venediktova on war crimes. Alma mater: the University of London, Gray’s Inn
Among others, he touched upon the scope of a crime of aggression; possible ways and legal mechanisms of the future court processes on Russian war crimes committed in Ukraine; the difference between a case before ICC or a Separate Special Tribunal; the work of the UN Security Council and peacekeeping operations.
The lecture was followed by a conversation with Mr. Morrison and questions and answer session moderated by CCL project coordinator Mr. Roman Nekoliak.
Discussion topic of the third day is: Perspectives of transitional justice in Ukraine: what changed after February 24, 2022?
Denis Chistikov – “Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol in the context of the armed attack by the Russian Federation”.
Report by the Deputy of a Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea
Kateryna Busol – “Transitional Justice before Transition to Peace? Ukraine’s Precedent for the World.”
Kateryna Busol is a Senior Lecturer at the National University of Kyiv-Mohyla Academy. As a practicing lawyer, she cooperated on different issues of accountability and transitional justice concerning the Russia-Ukraine armed conflict with Global Survivors Fund, UN Women, Global Rights Compliance, Ukraine’s criminal justice authorities and NGOs. Kateryna is an Academy Associate at Chatham House and was a Visiting Professional at the Office of the Prosecutor of the International Criminal Court.
Commenting on the issue of sexual violence in conflict zones CCL reminds that written and customary body of International Humanitarian Law prohibits sexual violence. The infliction of sexual violence upon enemy civilians, combatants and persons accompanying them, along with POW (prisoners of war) is prohibited.
Most victims of such notorious crimes are most likely to be civilian women and girls. Often they are left alone to face lasting physical and emotional damage in a culture of impunity. In conflict zones, women in general and journalists, activists, peacebuilders, and human rights defenders become subjected to reprisals and intimidation.
Currently, the Russian army weaponized sexual violence as a tactic of war, torture and terrorism. There are a dozen of cases that are being investigated by the law-enforcement bodies. We condemn and call for the end of conflict-related sexual violence. We believe that the concern of eradicating these crimes going together with human development, education and human rights, disarmament must represent a qualitative shift in the interests of the international community.
Oleksandra Matviychuk, the head of the Center for Civil Liberties (CCL) believes that sexual violence is integral to the policy of terror, which the Russian army are pursuing in Ukraine. Also, sexual violence during a war is the most latent crime. People who survive it frequently are not ready to go to the police and discuss it, even with human rights workers, because they see being raped as a shame.
You can listen to the lectures of the third day of the Ukrainian Week of International Criminal Justice here.
Discussion topic of the fourth day is: Criminal prosecution and punishment of international crimes in Ukraine: what pitfalls threaten law enforcement practice?
Dmytro Koval – “Article 438 of the Criminal Code of Ukraine application “violation of the laws and customs of war“: what pitfalls threaten law enforcement practice?”
Associate Professor of International and European Law NAUKMA, Candidate of Law, Fulbright Scholar at Stanford University (USA) – 2019-2020.
Konstantin Zadoya – “Ukrainian judicial practice in war crimes cases: quo vadis?“
Professor of the Department of Criminal Law Policy and Criminal Law, Taras Shevchenko National University of Kyiv, PhD, Associate Professor.
Commenting on the issue of the “death sentences” to foreign servicemen of the Ukrainian Armed Forces. CCL reminds that such a decision is not lawful under any circumstances. These trials of prisoners of war are classified as a war crimes.
In this particular case, three concepts of IHL are applicable to captured soldiers: lawful combatants, combatant privilege and POW status.
Lawful combatants. The mercenary claim is invalid because Ukraine has accepted them into UAF (Ukrainian Armed Forces) under lawful procedures. They were active-duty soldiers who must be protected by the Geneva conventions on prisoners of war.
Combatant privilege. As lawful combatants they have a combatant privilege, they have a right to participate in hostilities together with responsibilities and obligations, such as to respect IHL, to avoid inflicting extensive suffering, to distinguish between military and civilian objects, to not put civilians at risk ect.
Under the Geneva conventions, they should be treated as combatants. It is reasonable and lawful to treat soldiers in uniforms as soldiers. Meaning that prisoners of war are entitled to combatant immunities. To put it blankly, they are “licensed to kill”. Soldiers can’t be prosecuted for executing lawful orders, or serving lawful military objectives during their participation in the hostilities.
POW status. As lawful combatants, entitled to combatant privilege, they deserve proper treatment entitled to them by international law. While the internment of armed forces is a longstanding military practice, the trials are not.
What DPR did is completely out of the scope of the law. It violated the law of armed conflict. Under international law, Donetsk is a part of Ukraine. It is not a legitimate state. Even so, DPR is required to respect the fundamental principles of LOAC (Law of Armed Conflict)..
We believe that it is a Soviet-Nazi era show trial intended to imitate the war crimes trials of Russian soldiers taking place in Kyiv. Russia is using its proxies to discourage foreigners from joining the UAF. Such a “court” is a propaganda effort to justify the existence of DPR and to undermine the Ukrainian government.
Since 1997, Russia has imposed a moratorium on the death penalty. Therefore, this decision contradicts the Constitution of the Russian Federation, and the Russian Federation must stop the extrajudicial execution of soldiers of the Ukrainian Armed Forces, as this is a crime under both Russian law and international criminal law.
Both Ukraine and Russia are parties to the four 1949 Geneva Conventions and the 1977 Additional Protocol I, II. Furthermore, customary international humanitarian law applicable to IAC in the majority of provisions binds NIAC too. In addition, international human rights law continues to apply during times of both types of armed conflict.
Such handling of prisoners by Russia and its proxies is a grave violation of IHL.
Yuriy Bilous, а lawyer who collects evidence of the occupiers’ crimes, told us about – “What is genocide and is Russia committing it in Ukraine?” under the framework of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) and the Rome Statute.
It is the first legal instrument to codify genocide as a crime, and the first human rights treaty unanimously adopted by the United Nations General Assembly, on 9 December 1948 (during the third session of the United Nations General Assembly.) The Convention entered into force on 12 January 1951 and has 152 state parties as of 2021.
The CPPCG was conceived largely in response to World War II mass atrocities crimes as the Holocaust that lacked an adequate description or legal definition. The term was coined by Polish-Jewish lawyer Raphael Lemkin, who genocide in 1944 to describe Nazi policies in occupied Europe and the Armenian Genocide.
You can listen to the lectures of the fourth day of the Ukrainian Week of International Criminal Justice here.
Discussion topic of the fifth day is: Kyiv – The Hague: is everything done for effective cooperation between Ukraine and the International Criminal Court?
Victoria Mozgova, Director of the Department of Interaction with the National Police of Ukraine, the Ministry of Internal Affairs of Ukraine, PhD, senior researcher told us about the “Organizational and legal features of Ukraine’s cooperation with the International Criminal Court at the stage of the Court’s preliminary investigation“.
Mykola Pashkovskyi – “Cooperation with the International Criminal Court: why the Criminal Procedure Code is essential?”.
Lawyer, PhD, associate professor, a researcher at the Stashis Scientific Research Institute for the Study of Crime Problems. National Academy of Law Sciences of Ukraine, member of the Board of the Ukrainian Association of International Law, scientific advisor of Barristers JSC
Frederika Schweighoferova – “Cooperation with the ICC: Purpose, modalities, and why an effective domestic legislation is a key to its success“.
She is a director of a Rome Statute system Campaign, Parliamentarians for Global Action.
Prof. David M. Crane (SES, Ret.) was speaking on – “The setting up of the Special Tribunal for Ukraine on the Crime of Aggression”.
Founding Chief Prosecutor UN Special Court for Sierra Leone, distinguished scholar in residence, Syracuse University College of Law, Founder, Global Accountability Network.
Author: Every Living Thing-Facing Down Terrorists, Warlords, and Thugs in West Africa-A Story of Justice.
David Crane is an American lawyer who was the first American since Justice Robert Jackson at Nuremberg in 1945 to be named the Chief Prosecutor of an international war crimes tribunal, he was the Chief Prosecutor of the Special Court for Sierra Leone (SCSL).
Prof. Crane served on active duty in the US Army for over twenty years. He is a recipient of the Legion of Merit and the Defense Distinguished Civilian Service Medal.
He recently retired from his position as Professor of Practice at Syracuse University College of Law. Where he was teaching international criminal law, international law, international humanitarian law, and national security law at the Syracuse University College of Law.
In 2017, Prof. Crane founded the Global Accountability Network to investigate international crimes in Syria, Yemen, Venezuela, and China.
The Global Accountability Network is a network of prosecutors, lawyers, academics and other experts who collect and analyze information on international crimes.
In 2022, the organization published a white paper titled “Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation” which is avaliable publically.
You can listen to the lectures of the fifth day of the Ukrainian Week of International Criminal Justice here and Prof. Crane lecture here.
To learn more, please visit:
Rome Statute of the International Criminal Court (pdf)
Customary International Humanitarian Law (ICRC, pdf)
Geneva Conventions (ICRC official page)
Additional Protocol I (pdf)
