Criminal Law

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14.7.25

Criminal Law

Definition of international crimes

The provisions of Ukraine's Criminal Code concerning grave international crimes have remained unchanged since the outbreak of the armed conflict in Ukraine in 2014. In reality, most of the criminal investigations are opened in order to document violations of the laws and customs of war. Despite lengthy discussions and the ongoing need for aligning Ukrainian domestic criminal legislation with international law, including international humanitarian and criminal law, these changes have not been adopted by Ukrainian lawmakers. Consequently, when the Russian Federation invaded Ukraine on 24 February 2022, Ukrainian law enforcement agencies were “ill-equipped” with the same legislative tools for the legal classification of crimes under international law, as they had been since 2014.

The legislative shortcomings particularly arise in relation to the classification of grave international crimes. As a result of the application of the legal regime which had been implemented during the so-called “anti-terrorist operation” from 2014-2018 and then “joint forces operation” from 2018 until 2022 the Ukrainian authorities have made extensive use in cases involving crimes under international law of the Criminal Code's provisions that establish criminal responsibility for the acts of terrorism (please see Annex 1). These include Article 258 ‘Act of terrorism,’ Article 258-1 ‘Involvement in an act of terrorism,’ Article 258-2 ‘Public incitement to commit an act of terrorism,’ Article 258-3 ‘Creation of a terrorist group or terrorist organisation,’ Article 258-4 ‘Facilitation to committing an act of terrorism,’ and Article 258-5 ‘Financing of terrorism’ of the Criminal Code of Ukraine. As a result of the use of terrorism-focused legislation, amendments to the Criminal Code since 2014 have addressed the specifics of criminal liability for such acts.[53]

Regarding the classification of the violations of international humanitarian law and human rights in the armed conflict, the Criminal Code of Ukraine was slightly amended through the addition of Article 146-1. This article addresses the legal classification of enforced disappearances, specifically those carried out by ‘representatives of “irregular illegal armed groups”, armed gangs and groups of mercenaries created by, subordinated to, managed and financed by the Russian Federation, as well as representatives of the occupation administration of the Russian Federation, which consists of its state bodies and structures functionally responsible for the administration of the temporarily occupied territories of Ukraine, and representatives of the self-proclaimed bodies controlled by the Russian Federation, which usurped the power functions in the temporarily occupied territories of Ukraine.’[54].

The Criminal Code of Ukraine had been amended 13 times during the 6 months of the active phase of the armed conflict in Ukraine in 2022[55]. Each of the amended laws addressed the circumstances of the armed conflict and intended to improve criminal legislation. However, none of the amendments in any way adequately addressed the shortcomings in the domestic legislation related to the investigation, prosecution and adjudication of grave international crimes. In particular, the following amendments have been made: the concept of ‘collaboration’ was introduced (Article 111-1 of the CCU); the provisions on high treason were amended (Article 111 of the CCU); the responsibility for cybercrimes was introduced (Article 361 of the CCU); as well as the responsibility for the misuse of humanitarian aid (Article 201-2 of the CCU); dissemination of information about military positions (Article 114-2 of the CCU), and aiding and abetting the aggressor state (Article 111-2 of the CCU).

Among the amendments, two aspects stand out. The first is the clarification of the status of civilians directly engaged in an armed conflict[56]. According to international humanitarian law, under certain circumstances, civilians or other persons who are protected under international humanitarian law lose the protection conferred upon them when they directly participate in hostilities, therefore becoming lawful military objectives. In the case that a civilian directly participates in hostilities, for the duration of the direct participation in hostilities, a civilian may be directly attacked as if he were a combatant.

The Criminal Code of Ukraine had been amended seemingly with a view to prevent civilians from being held criminally liable where they directly participate in hostilities, but the language of the amendment is unclear in relation to the scope of its application, and it applies solely where civilians ‘use firearms against individuals engaged in the armed aggression against Ukraine’. The fact that this condition is included in the Final and Transitional Provisions of the CCU, rather than Section IX, suggests its temporary nature and raises the possibility of its selective application in practice. Furthermore, the legislation does not define the scope of ‘individuals engaged in the armed aggression against Ukraine,’ allowing room for significant interpretation challenges for those implementing the legislation at the level of law enforcement practice. Amongst the foreseeable problems of such legislation is the serious risk of arbitrary interpretation by both law enforcement authorities and judicial authorities, including in the courts.

[The second aspect is that the fulfilment of the duty to defend the Motherland, independence and territorial integrity of Ukraine is provided as a valid criminal defence (a condition that negates criminal liability) according to Article 43-1 of the CCU[57]. Its wording closely resembles that of combatant immunity in international humanitarian law, but the national legislation introduces its own term, ‘combat immunity’.[58] Such a provision is deeply problematic from an impartiality perspective as regards the rule of law, as well as in its human rights compliance, for example in relation to the right to life, right to an effective remedy, and the prohibition of discrimination amongst others. In practice, the legislation has meant that while Russian soldiers can be prosecuted under Article 115 (‘Premeditated murder’) of the CCU for killing Ukrainian soldiers, individuals who stand up to protect Ukraine's territorial integrity according to Article 43-1 of the CCU can be exempt from criminal prosecution Moreover, this provision does not apply to the legal classification of acts under Article 438 of the CCU, which means there is no exemption from criminal prosecution for alleged war crimes.

The amendments to Ukraine's criminal legislation adopted during the first six months of the full-scale invasion primarily addressed the criminal prosecution of those who were allegedly facilitating the actions of the aggressor state on Ukrainian territory (the so-called collaborators); citizens of Ukraine who were believed to be acting against Ukraine's interests. Moreover, a closer examination of certain provisions reveals the duplication of already existing provisions. In particular, Article 111 of the CCU (‘High treason’), Article 111-1 of the CCU (‘Collaboration activities’), and Article 111-2 of the CCU (‘Aiding and abetting aggressor state’) have the same elements of crime, and the rapidly evolving case law is attempting to delineate the scope of their application.

In 2024, Ukraine’s approach to the regulation of core international crimes changed following its ratification of the Rome Statute[59]. On 21 August 2024, the Law of Ukraine “On Ratification of the Rome Statute of the International Criminal Court and Amendments thereto” was adopted. This required amendments to the CCU and the CPCU[60]. After lengthy discussions[61], the Law of Ukraine “On Amendments to the Criminal Code and the Criminal Procedure Code of Ukraine in connection with the Ratification of the Rome Statute of the International Criminal Court and Amendments thereto”[62] was adopted on October 9, 2024.

Even after these amendments, the definitions of core international crimes contained in the Criminal Code of Ukraine are still not fully in line with the international standards:

1. Part 1 of amended article 442 of the CCU (‘Genocide’[63]) mirrors the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide[64].

While Part 2 of previous Article 442 defined the separate crime of “public” incitement to genocide, the amended Part 2 now defines the crime of “direct and public” incitement to genocide. This additional element reflects a more restrictive approach to the crime of incitement to genocide, and is currently being interpreted by national courts.

While the cases concerning allegations of genocide have not yet been considered in Ukrainian courts allowing for an examination of the elements of the crime and establishing how such cases will be considered by judges[65], the crime of incitement to genocide as outlined in Article 442 Paragraph 2 of the CCU is currently being interpreted by national courts[66]. Proceedings in the pre-trial investigation stage should take into account these amendments to the definition of incitement to genocide. It remains uncertain what is to be done with convictions registered and passed under previous, more broadly worded version of Part 2. Article 5(3) of the general provisions of the CCU provides that changes to laws on criminal liability which partially commutes criminal liability or otherwise improves the situation of a person shall have retroactive effect. Therefore, after the law of October 9, 2024 comes into force, those persons previously convicted of “public incitement” to genocide may have grounds for reviewing their convictions, as crimes of solely “public incitement” to genocide may effectively be decriminalised.[67]

2. Article 442-1 of the CCU (‘Crimes against humanity’[68]) is a novelty for the Criminal Code of Ukraine. As this Article was included in the CCU as a result of the amendments of 09.10.2024, it does not have retroactive effect and cannot be used to qualify events committed before the entry into force of the said law. This presents a legal lacuna, as crimes alleged to have been committed between 2014 and the date of the amendment may not be qualified as crimes against humanity. A solution to this may be a provision on the retrospective application of certain provisions regarding crimes committed before the adopted amendments came into force.

3. Article 437 of the CCU(‘Crime of aggression’[69]) sets out the current provision on which investigations and prosecutions for the crime of aggression are based. However, the article falls short of international standards and is not in line with the Rome Statute definition, or comparable provisions in the relevant UNGA resolution. For example, under customary international law, the crime of aggression is considered a ‘leadership’ crime, concerning those persons who are most responsible for committing the crime. However, in the present CCU definition, the liable party in this provision is outlined broadly and also concerns all levels of perpetrators, including direct perpetrators, i.e. any sane natural person who has reached the age of sixteen[70], in contrast to the definition found in the relevant UNGA resolution[71] and Article 8 bis of the Rome Statute of the International Criminal Court, where responsibility for the crime of aggression may extend to ‘persons in a position effectively to exercise control over or to direct the political or military action of a State’.[72] Additionally, article 437 CCU Ukraine does not include a definition of ‘aggressive war,’ nor does it refer to the UN documents that offer insight into the understanding of the term ‘act of aggression’.[73] Instead, the legislation defines ‘armed aggression’[74] and makes prominent use of the term ‘repelling of armed aggression’.[75] Such approaches enable law enforcement agencies to broadly construe acts within armed conflicts as aggressive war, such a possibility raises the prospect of large numbers of lower-level persons being charged with the crime of aggression, which does not reflect an international law understanding of, or approach to the crime, and risks undermining the ‘leadership’ nature and gravity of the crime. Furthermore, the charging of lower-level Russian soldiers under article 437 CCU raises concerns regarding the applicability of combatant immunity, which bars the prosecution of combatants for mere participation in hostilities, unless such acts constitute war crimes. Further, the broad nature of article 437 CCU also raises concerns regarding the principle of specificity which may result in charging practices that fall short of meeting international legal standards, including those of due process. Supreme Court’s most recent interpretation of a ‘perpetrator‘ of the crime reflects such a broad approach to defining the crime of aggression in Ukraine’s domestic law.[76].

The Law of October 9, 2024, amended this article, but did not change the definition of the crime in essence. Instead, its title was changed to “Crime of Aggression” instead of “Planning, Preparation, Initiation and Waging of an Aggressive War” and the prescribed imprisonment terms were increased. There are ongoing discussions that this article should be further revised to comply with the Rome Statute definition of the crime. In this case, its presence in the Criminal Code of Ukraine will be mostly symbolic, since the perpetrators are high-ranking officials with personal immunity, which can only be dealt with by courts with appropriate international jurisdiction.

4. Article 438 of the CCU (‘War crimes’[78]) outlines the legal classification of war crimes within the Criminal Code of Ukraine. The wording of the article differs from the general approach used in the CCU towards defining offences, as it is a blanket provision that makes reference to the provisions of international treaties ratified by Ukraine. In the practice of the conventions’ application authorities have encountered difficulties with the quality of their translation, particularly as related to the terminology and even some of the provisions simply missing (for instance, article 51 of the Geneva Convention 4 is missing in the “Ukrainian” version). The challenge for Ukrainian legal and judicial practitioners is determining whether this provision complies with the principle of legal certainty which is a fundamental element of Ukrainian criminal law. In order to apply a legal classification effectively an investigator, a prosecutor, or a judge is required in practice to understand which international treaties the provision and relevant acts being investigated and prosecuted refer to. In order to act pursuant to article 438 CCU practitioners are therefore required to have an in-depth understanding and expertise on international humanitarian law as well as practical experience in its implementation. Certain elements of war crimes are also detailed in other provisions of the Criminal Code of Ukraine, including Article 439 ‘Use of weapons of mass destruction’, Article 445 ‘Illegal use of symbols of the Red Cross, Red Crescent, Red Crystal’, as well as Article 432 ‘Marauding’, and Article 433 ‘Violence against population in an operational zone’. These provisions pertain specifically to military personnel within the Armed Forces of Ukraine, Security Service of Ukraine, State Border Guard Service of Ukraine, National Guard of Ukraine, and other legally established military formations in accordance with Ukrainian law, as well as the State Special Transport Service, State Service for Special Communications and Information Protection of Ukraine, and any other legal persons as defined by law.[79] However, in reality, these provisions are also applied to members of the armed groups of the RF[80].

The ratification of the Rome Statute also resulted in changes to Article 438 of the CCU. Its content and wording have not changed, except for the wording of part 2, which provides for grave consequences in the form of death instead of a connection with intentional murder. Also, the title of the article was changed from ‘Violations of the rules and customs of war’ to ‘War crimes’.[81]

Forms of commission of core international crimes

Approaches defined by the Criminal Code of Ukraine were used in case law on the consequences of the armed conflict after 2014 to determine the role of perpetrators of crimes. After the start of the anti-terrorist operation in eastern Ukraine[82], the role and characteristics of the perpetrators were often clarified through the additional qualification of Article 258-3 ‘Creation of a terrorist group or terrorist organization’[83] and/or Article 260 ‘Creation of unlawful paramilitary or armed formations’[84] of the CCU in the form of participation in such formations[85]. As individual war crimes proceedings were brought to court by 2022, the practice of prosecuting individuals for participation in illegal armed groups or terrorist organizations became independent. Court verdicts in such proceedings effectively assessed the fact of participation in the armed conflict.

In addition, in proceedings concerning the consequences of the armed conflict, the forms of participation in the commission of crimes provided for by the Criminal Code of Ukraine were actively used as additional qualifications. In particular:

participation in the commission of a crime - Article 27 of the CCU provides for the following types of participants: perpetrator/co-perpetrator, organizer, instigator, aider and abettor[86]. The general legal qualification is supplemented by a separate clause of the article that defines the specific role played by the offender;
joint commission of a crime - depending on the number of persons involved in the commission of crimes and the distribution of roles between them, the CCU defines such types as commission of a crime by a group of persons, by prior conspiracy, by an organized group, by a criminal organization[87];
ordering the commission of a war crime - enshrined as a separate objective element under Article 438 of the CCU[88]. By its wording, it is a separate crime and does not require additional qualification. However, in practice, it is rather difficult to prove, as it requires showing the existence of a direct order to commit a crime in order to prosecute;‍
responsibility of military commanders or persons effectively acting as military commanders and other superiors - Article 31-1 of the CCU, a novelty introduced by the ratification of the Rome Statute, enshrined the principle of command responsibility in Ukrainian legislation[89]. This mode of liability applies exclusively to crimes under Articles 437-439, 442, 442-1 of the Criminal Code of Ukraine.

It should also be noted that in the context of the ongoing discussions around the inclusion of the principle of command responsibility in the Criminal Code of Ukraine, Article 426 of the CCU ‘Omissions of Military Authorities’ was reffered to as a possible alternative to any amendment[90]. By its very nature, this article cannot be an alternative to the responsibility of commanders for the commission of core international crimes by their subordinates. First, Article 426 does not fully reflect the principle of command responsibility, but only refers to the proper fulfilment by military commanders of their duties. Second, the Article 426 is contained within the section on criminal offenses against the established order of military service, which only applies to actions committed by the Ukrainian military.[91].

In practice, the application of these provisions in criminal proceedings, especially after 2022, has become a certain alternative to international standards for the prosecution of core international crimes. The application of the existing provisions in practice has already led to confusion in the legal qualification of acts under Articles 437[92] and 438[93] of the Criminal Code of Ukraine. The quest for alternative solutions in determining the mode of participation in a crime shows that investigators and prosecutors lack an understanding of how to correctly apply, in particular, command responsibility, which may also be manifested in the further application of the October 2024 amendments to the Criminal Code of Ukraine.

Standards on forms of commission of core international crimes

One of the key features of core crimes is the need to prove the connection between perpetrators of different levels and their role in the commission of the act. Article 25 of the Rome Statute lists of forms of commission of core international crimes, including:

committing the crime individually[94];
committing a crime jointly with[95] or through another person[96], regardless of whether that person is criminally responsible;
ordering[97];
soliciting or inducing[98];
aiding, abetting or otherwise assisting the commission of a crime[99];
contributing in any way to the commission of a crime by a group of persons acting with a common purpose[100];
direct and public incitement to commit genocide;
attempt to commit a crime[101].

Each of these forms has its own particularities and characteristics, determined by international standards and the jurisprudence regarding core international crimes. Despite sharing common terminology with national law in national law, “aiding and abetting” requires proof that a person provided direct and substantial assistance in the commission of a crime[102]. In the official translation of the Rome Statute into Ukrainian, however, this form of liability is equated with the terms ‘aiding and abetting’[103] by analogy with the modes of complicity under the CCU.

With regard to the crime of aggression, it is specifically stated that these forms of participation in the commission of a crime apply only to persons who have the ability to effectively control or direct the political or military actions of the state[104]. That is, despite the list provided, it is possible to prosecute for this crime only when the individual has the characteristics of a perpetrator of a crime of aggression.

International standards also separately define the responsibility of commanders and superiors for crimes committed by their subordinates[105]. The general guarantee enshrined in IHL[106] has been further developed in the jurisprudence of various criminal tribunals[107]. In order to prove criminal responsibility under this principle, the following elements must be fulfilled: the suspect must be either a military commander or a person effectively acting as such; the suspect must have effective command and control, or effective authority and control over the forces (subordinates) who committed one or more of the crimes; the crimes committed by the forces (subordinates) resulted from the suspect's failure to exercise control properly over them; the suspect either knew or, owing to the circumstances at the time, should have known that the forces (subordinates) were committing or about to commit one or more of the crimes; and the suspect failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution[108].

Proposed Substantive Legislation

Without substantive changes to the domestic criminal code, Ukraine’s ability to investigate and prosecute crimes under international law pursuant to international law standards is severely constrained. While Ukrainian authorities are currently able to conduct investigations and prosecutions, significant shortcomings in the domestic legal framework related to a number of issues, including definitions and the domestication of crimes under international law and modes of individual responsibility will severely hamper domestic authorities’ current and future justice efforts.

A lack of adequate domestic legislation will also undermine Ukraine’s ability to conduct investigations and prosecutions in a manner that such activities could be complementary to other justice processes (see above) – most obviously central to the Rome Statute and the International Criminal Court’s investigation, as well as other potential investigations and international justice developments outside of Ukraine.

It should be recognised that the drafting and adoption of implementing legislation can be a challenging process, requiring specialist legal expertise, as well as resources which may be already over-stretched in meeting demands for justice emerging from the ongoing conflict. However, the adoption of such legislation is a crucial process to enable effective domestic investigations and prosecutions and should be considered a significant priority.

Over the past ten years, there have been several attempts to amend the Criminal Code of Ukraine in order to align the interpretation of grave crimes with international law. Two of these attempts deserve particular attention.

Law No. 2689

On 20 May 2021, the Verkhovna Rada of Ukraine adopted the Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine Regarding Implementation of International Criminal and Humanitarian Law’[109] (No. 2689). On 7 June 2021, the law was passed to the President of Ukraine for approval by way of his signature and approval. However, there has been no update regarding the current status of this document ever since that date. It should be noted that even if the President of Ukraine puts his signature under the text of the law, a constitutional challenge may be brought to the Constitutional Court of Ukraine to challenge its legality due to the violation of the procedure for adopting regulatory acts, namely the failure to adhere to the deadlines prescribed by the law.

The text of Draft Law No. 2689 represented a “middle ground” which considered both international legal practices and operational capacities of Ukraine's domestic justice system to prosecute grave crimes. The draft law was developed by a number stakeholders including Ukrainian law enforcement and judicial bodies, human rights groups, as well as international and domestic experts in international criminal law. The provisions relating to universal jurisdiction and command responsibility, the wording of the crime of aggression, and the retroactive application of the provisions remained a subject of debate throughout the whole period of the draft law consideration by the Parliament of Ukraine and beyond. Ultimately these provisions became the reason for failing to approve the Draft Law 2689 its redrafting that followed.

Law No. 7290

In contrast to the Law No. 2689, a draft law ‘On Amendments to Criminal Code of Ukraine and Criminal Procedure Code of Ukraine’[110] (No. 7290) was officially registered with the Verkhovna Rada of Ukraine on 15 April 2022. The Explanatory Note accompanying this draft law indicates the need to adopt it that stems from the international armed conflict in Ukraine's territory and extensive violations of international law committed by the Russian Federation. The contents of Draft Law No. 7290 duplicate the provisions of Law No. 2689 concerning the definitions of grave international crimes intended to be incorporated into the Criminal Code of Ukraine. However, this draft law introduces fundamentally different approaches to a number of critical provisions, reflecting the contested nature of debates among stakeholders in their drafting.

Perpetrators of the crime of aggression are not clearly defined

The proposed wording of Article 437 of the CC of Ukraine does not limit the range of potential perpetrators of any political level whose actions may be assessed under this article. This is probably explained by the need to preserve the grounds for prosecution of persons already convicted since 2014 under Article 437 of the CC of Ukraine and not to create grounds for their possible release. On the other hand, the ratification of the Rome Statute implies an obligation to bring the definition of international crimes, such as the crime of aggression, in line with international standards. Therefore, legislators and practitioners need to work together to find the best solution to such challenges.

Retroactive application of criminal law

A noteworthy concern arising out from the draft legislation lies in the possible introduction of a retrospective application of provisions concerning grave international crimes. Article 5(2) of the CCU stipulates that a law on criminal liability that establishes criminal unlawfulness of an act, augments criminal liability, or otherwise worsens an individual's situation shall not apply retroactively. Due to this contradiction, the provision on the retroactive application of amendments to the Criminal Code of Ukraine might be recognised as incompatible with the Constitution of Ukraine.[112]

The only argument in favour of incorporating this provision into the draft law is that grave international crimes are rooted in customary international law. The severity of these crimes draws global attention, and the stance on criminalisation and universal prosecution of such acts is widely accepted across nations. Considering that these grave international crimes have already been criminalised at the international level, the retroactive application of these provisions within the framework of Ukraine's national legislation should be deemed acceptable.

The debates in the parliament around the contents of Law No. 2689 have shown that the issue of extending the temporal scope of criminal law provisions to align them with the principles of customary international humanitarian law and international criminal law remains contentious within the context of national law enforcement practices. The risks associated with the rejection of such a provision are quite high, potentially triggering a future review of these provisions by the Constitutional Court of Ukraine. However, without such amendments, the introduction of new articles into Section XXI of the Criminal Code of Ukraine will be meaningless, as the majority of crimes committed after 2014 and the full-scale invasion of Ukraine on 24 February 2022 will still be governed by the current version of Ukraine’s criminal law.

Law No. 4012

Discussions around implementation intensified with the ratification of the Rome Statute by Ukraine[113]. Although the law ‘On Amendments to the Criminal Code and the Criminal Procedure Code of Ukraine in connection with the ratification of the Rome Statute of the International Criminal Court and Amendments thereto’ of 9 October 2024[114], provided for a number of key changes, they failed to address all relevant issues in practice.

Introduction of crimes against humanity

The greatest emphasis in the text of the law is on the incororation of crimes against humanity in the criminal legislation of Ukraine (Article 442-1). Although the article reflects at vision of Article 7 of the Rome Statute of the ICC, the absence of its retroactive application allows this qualification to be applied only to crimes committed after the provision enters into force.

The principle of universal jurisdiction is envisaged

In 2024 the CCU has also been amended with a provision extending the jurisdiction of Ukraine to crimes committed outside its borders (provided for in Articles 437-439, 442, 442-1 of the CCU)[115] so long as the alleged perpetrator is on the territory of Ukraine and cannot be extradited/transferred to a foreign state or international judicial institution for prosecution.

According to these amendments, the crime of aggression may also be prosecuted applying this same principle. Despite the fact that Ukrainian courts are developing their own jurisprudence and approaches to this crime, there is still criticism that its definition in national legislation is inconsistent with international standards. As a result, the possibility of prosecution of the crime of aggression within this framework remains questionable.

Moreover, there are no proposals to amend the CPCU that would allow for the practical implementation of universal jurisdiction in Ukraine. Therefore, this innovation remains more of a declarative provision in the criminal law, especially given the workload of the national justice system in dealing with crimes committed in Ukraine.

Introduction of command responsibility

For a long time, the question of the incorporation of the principle of command responsibility into the CCU was one of the most controversial challenges in its reform. Even at the time of adoption of this law, there were opinions that this specific provision did not meet the requirements of the Constitution of Ukraine regarding the individual nature of criminal responsibility[116].

Command responsibility has now been incorporated into Ukrainian criminal law. Its application is limited to cover only core international crimes. While the text contains contradictions in wording (e.g., “failed to act” vs “failed to take action”), its adoption was anticipated by law enforcement agencies.

Terminology changes

While the determination to not amend Articles 437 and 438 of the CCU was a compromise, when the law was adopted, it introduced the terms “crime of aggression” and “war crimes” into domestic law through the titles of these articles. A way to mitigate against additional procedural burdens on the judiciary related to possible re-qualification of criminal acts, at the same time this left unresolved contradictions between the new terms and the content of these articles.

Following the 2024 amendments to the Criminal Code of Ukraine, the further implementation of international law into national legislation remains a pressing issue. In parallel with the law of 9 October 2024, the Verkhovna Rada of Ukraine registered the draft law ‘On Criminal Liability for International Crimes’ (reg. No. 11538 of 02.09.2024)[117]. As stated in the explanatory note to the bill, it aims to bring Ukrainian legislation into full compliance with the provisions of the Rome Statute and represents a revised approach that was previously proposed in draft laws No. 2689 and No. 7290[118].

Draft law No. 11538 was adopted by the Verkhovna Rada of Ukraine on 5 December 2024, in the first reading[119]. The vote was unexpected for practitioners and the expert community, and CSOs unanimously opposed its adoption[120]. The approaches and proposals of the text are fundamentally different from previous drafts, which were more or less unanimous in the proposed formats for making changes. While the discussions on the text of draft law No 11538 leave hope that the draft will not move forward within the legislative procedure or receive support in the parliament, it unfortunately remains under consideration.

A separate law on core international crimes, such as represented by draft law No. 11538 would complicate the qualification of crimes. Its application would mean that in criminal proceedings, it will be the courts that will be obliged to make the final decision on the application of the provisions of the CCU or a separate law in each specific case, taking into account the temporal effect of the law. Such an approach may lead to the formation of disparate and sometimes conflicting practical approaches to the assessment of crimes. And such an approach to legal regulation would contradict the rule of law principle under Article 8 of the Constitution of Ukraine.[121]

In addition, draft law No. 11538 proposes certain rules that contradict the general provisions of the Criminal Code of Ukraine and cannot be applied in practice, such as the concept of an ‘international crime,’ which is not defined; the denial of personal immunity from prosecution[122]; changes in the types of punishment (imprisonment for up to thirty years)[123], and the establishment of command responsibility as a separate crime. The text also uses the Ukrainian terminology of the Rome Statute, which contradicts both the already amended CCU as well as the Ukrainian versions of the Geneva Conventions of 12.08.1949 and their Additional Protocols. For example, there is a discrepancy in the use of the term ‘inhuman treatment’ in the law ('нелюдське поводження')[124] and in the Ukrainian terminology of the Geneva Conventions of 12.08.1949 ('нелюдяне поводження').[125]

Moreover, the amendments do not address the question of dealing with the here to fore broad approach to the current version of Article 438 of the Criminal Code of Ukraine in the event a clear list of war crimes is introduced in line with Article 8 of the Rome Statute. A number of acts, such as the issuance of passports to civilians in the occupied territories, will be decriminalized after such amendments, and investigations into these facts would be closed. In addition, the draft law proposes its own format for understanding the different forms of participation in the commission of crimes. In some cases, they are included as separate elements of crime (for example, Article 18 ‘Directing the commission of the crime of genocide’[126]). In others, they are omitted. For example, giving an order is set out as a separate form of the objective side of the crime under the current Article 438 of the Criminal Code of Ukraine.

The adoption of the draft law No. 11538 by the Verkhovna Rada of Ukraine in its first reading intensified the discussion around the domestic implementation of international law at the level of state bodies, individual experts and civil society. The selective adoption of amendments over the past six months has shown that it is too challenging in practice to prioritize issues that need to be addressed, and this approach does not significantly affect the efficiency of justice processes.

Overall, a lack of alignment between national legislation and international standards continues to create a number of challenges. For example, the reliance on domestic legislation which does not meet international standards results in the inaccurate, inconsistent, and often arbitrary classification of acts. This, in turn, may lead to national prosecutorial and judicial practices which are ineffective and raise concerns about their fairness and compliance with human rights, and which pave the way for subpar and distorted justice for victims of grave crimes. Presently, an extensive number of proceedings are registered and opened under Article 438 of the CCU for the offences which do not pertain to war crimes, adding an unjustified burden on law enforcement agencies and leading to wasteful utilisation of already scarce resources.[127]

Additionally, proposals of the amendments do not include provisions pertaining to complicity in commission of international crimes. While provisions of the CCU[128] determine a general approach to the accountability of accomplices depending on their roles in committing criminal offences, they are not aligned with the international criminal law standards and do not allow for a broad interpretation such as equating them with “joint criminal enterprise” under Tadic[129] for instance. Insofar as proposed amendments to the CCU are concerned it would be important to propose those pertaining to the modes of participation in committing international crimes, which would include joint criminal enterprise and aiding and abetting.

classification of international crimes

CCU

Art. 442 CCU

art. 442-1 CCU

art. 437 CCU

modes of participation standards

international-standarts

crime of aggression

war crimes

[53] Law of Ukraine ‘On Amendments to Criminal Code and Criminal Procedure Code of Ukraine Regarding Inevitability of Punishment for Certain Crimes Against Foundations of National Security, Public Safety, and Corruption Crimes,’ No. 1689-VII, 07.10.2014: https://zakon.rada.gov.ua/laws/show/1689-18#n15. Law of Ukraine ‘On Prevention and Counteraction to Legalisation (Laundering) of Proceeds from Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction,’ No. 361-ІХ, 06.12.2019: https://zakon.rada.gov.ua/laws/show/361-20#n898.

[54] Criminal Code of Ukraine, No. 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text. Law of Ukraine ‘On Legal Status of Persons Missing Under Special Circumstances,’ No. 2505-VIII, 12.07.2018: https://zakon.rada.gov.ua/laws/show/2505-19#n239.

[55] Law of Ukraine ‘On Amendments to Certain Legislative Acts Regarding Establishment of Criminal Liability for Collaboration Activities,’ No. 2108-ІХ, 03.03.2022: https://zakon.rada.gov.ua/laws/show/2108-20#n6. Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine Regarding Strengthening of Criminal Liability for Production and Distribution of Prohibited Information Products,’ No. 2110-ІХ, 03.03.2022: https://zakon.rada.gov.ua/laws/show/2110-20#n6. Law of Ukraine ‘On Amendments to Criminal Code of Ukraine Regarding Strengthening of Liability for Crimes against Foundations of National Security of Ukraine under Martial Law,’ No. 2113-ІХ, 03.03.2022: https://zakon.rada.gov.ua/laws/show/2113-20#n2. Law of Ukraine ‘On Ensuring Participation of Civilians in Defence of Ukraine,’ No. 2114-ІХ, 03.03.2022: https://zakon.rada.gov.ua/laws/show/2114-20#n18. Law of Ukraine ‘On Amendments to Criminal Code of Ukraine Regarding Strengthening of Liability for Looting,’ No. 2117-ІХ, 03.03.2022: https://zakon.rada.gov.ua/laws/show/2117-20#n2. Law of Ukraine ‘On Amendments to Criminal Code of Ukraine and Other Legislative Acts of Ukraine on Determining Circumstances that Preclude Criminal Unlawfulness of Act and Provide for Combat Immunity in Conditions of Martial Law,’ No. 2124-ІХ, 15.03.2022: https://zakon.rada.gov.ua/laws/show/2124-20#n5. Law of Ukraine ‘On Amendments to Criminal Code of Ukraine on Improving Efficiency of Combating Cybercrime in Conditions of Martial Law,’ No. 2149-ІХ, 24.03.2022: https://zakon.rada.gov.ua/laws/show/2149-20#n2. Law of Ukraine ‘On Amendments to Article 263 of Criminal Code of Ukraine Regarding Abolition of Liability in Case of Voluntary Surrender of Weapons, Ammunition, Explosives or Explosive Devices,’ No. 2150-ІХ, 24.03.2022: https://zakon.rada.gov.ua/laws/show/2150-20#n2. Law of Ukraine ‘On Amendments to Criminal Code of Ukraine Regarding Liability for Illegal Use of Humanitarian Aid,’ No. 2155-ІХ, 24.03.2022: https://zakon.rada.gov.ua/laws/show/2155-20#n2. Law of Ukraine ‘On Amendments to Criminal and Criminal Procedure Codes of Ukraine Regarding Counteraction to Unauthorised Dissemination of Information on Shipment or Transportation of Weapons, Armaments and Ammunition to Ukraine, Movement, Disposition or Deployment of Armed Forces of Ukraine or Other Military Formations Created in Accordance with Laws of Ukraine, Committed During Martial Law or State of Emergency,’ No. 2160-ІХ, 24.03.2022: https://zakon.rada.gov.ua/laws/show/2160-20#n6. Law of Ukraine ‘On Amendments to Article 114^-2 of the Criminal Code of Ukraine Regarding Improving of Liability for Unauthorised Dissemination of Information About Means of Countering Armed Aggression of Russian Federation,’ No. 2178-ІХ, 01.04.2022: https://zakon.rada.gov.ua/laws/show/2178-20#n2. Law of Ukraine ‘On Amendments to Criminal and Criminal Procedure Codes of Ukraine Regarding Improving of Liability for Collaboration Activities and Peculiarities of Application of Preventive Measures for Crimes Against Fundamentals of National and Public Security,’ No. 2198-ІХ, 14.04.2022: https://zakon.rada.gov.ua/laws/show/2198-20#n6. Law of Ukraine ‘On Amendments to Criminal Code, Code of Criminal Procedure and Other Legislative Acts of Ukraine Regarding Regulation of Procedure for Exchange of Persons as Prisoners of War,’ No. 2472-ІХ, 28.07.2022: https://zakon.rada.gov.ua/laws/show/2472-20#n6.

[56] Law of Ukraine ‘On Ensuring Participation of Civilians in Defence of Ukraine,’ No. 2114-ІХ, 03.03.2022:https://zakon.rada.gov.ua/laws/show/2114-20#n18.

[57] Law of Ukraine ‘On Amendments to Criminal Code of Ukraine and Other Legislative Acts of Ukraine Regarding Determining of Circumstances that Negate Criminal Unlawfulness of Act and Provide for Combat Immunity during Martial Law,’ No. 2124-ІХ, 15.03.2022: https://zakon.rada.gov.ua/laws/show/2124-20#n5.

[58] Combat immunity is the exemption of military commanders, servicemen, and volunteers of the Territorial Defence Forces of the Armed Forces of Ukraine; law enforcement officers who in accordance with their duties participate in the defence of Ukraine; and persons defined by the Law of Ukraine ‘On Ensuring Participation of Civilians in Defence of Ukraine’ from liability, including criminal liability, for the loss of personnel, military equipment or other military property; consequences of using armed and other force while repelling armed aggression against Ukraine, or terminating (neutralising) an armed conflict, or performing other tasks for the defence of Ukraine while using any type of weapon (armament), the occurrence of which could not have been foreseen with reasonable care when planning and performing such actions (tasks) or which are covered by a justified risk, except in cases of violations of the laws and customs of war or the use of armed force as defined by international treaties ratified by the Verkhovna Rada of Ukraine. // Law of Ukraine ‘On Defence of Ukraine,’ No. 1932-ХІІ, 06.12.1991: https://zakon.rada.gov.ua/laws/show/1932-12#Text.

[59] Post on the page of Iryna Mudra // Facebook, 09.10.2024: https://www.facebook.com/share/p/1XLCxxcA2v/.

[60] Law of Ukraine “On Ratification of the Rome Statute of the International Criminal Court and Amendments thereto”, No. 3909-ІХ, 21.08.2024: https://zakon.rada.gov.ua/laws/show/3909-20#Text.

[61] “We have to protect our military”. Deputy Head of the OP Mudra on the Rome Statute, the tribunal for Putin and reparations // Suspilne, 30.08.2024: https://suspilne.media/824671-maemo-zahistiti-nasih-vijskovih-zastupnica-kerivnika-op-mudra-pro-rimskij-statut-tribunal-dla-putina-ta-reparacii/. Why does Ukraine need the Rome Statute and what does its ratification change? Ambassador-at-Large of the Ministry of Foreign Affairs Anton Korynevych explains // Suspilne, 16.08.2024: https://suspilne.media/815005-naviso-ukraini-rimskij-statut-i-so-zminue-jogo-ratifikacia-poasnue-posol-z-osoblivih-dorucen-mzs-anton-korinevic/.

[62] Law of Ukraine “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in connection with the Ratification of the Rome Statute of the International Criminal Court and Amendments thereto”, No 4012-ІХ, 09.10.2024: https://zakon.rada.gov.ua/laws/show/4012-20#n6.

[63] Article 442. Genocide
1. Genocide, that is an act intentionally committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such:
1) killing members of this group;
2) causing serious harm to members of the group;
3) inflicting on the group conditions of life aimed at its physical destruction in whole or in part;
4)imposing measures aimed at preventing births within the group;
5) forcibly transferring children from one group to another, - shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
2. Direct and public incitement to commit the acts under part one of this Article, proclaimed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such, as well as the production of materials containing incitement to commit such acts with the intent to disseminate them, or the dissemination of such materials, shall be punishable by imprisonment for a term of three to seven years. // Criminal Code of Ukraine, № 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text

[64] Convention on the Prevention and Punishment of the Crime of Genocide, UN GA Resolution 260 (ІІІ), 09.12.1948: https://www.un.org/ru/documents/decl_conv/conventions/genocide.shtml. Ratified by Ukrainian SSR dated 15.11.1954.

[65] President of the Supreme Court: Ukrainian courts will soon start hearing cases on Russian genocide en masse // Ukrainska Pravda, 04.03.2023: https://www.pravda.com.ua/news/2023/03/4/7392022/; 'Hallmarks of genocide' in Russian crimes across Ukraine, Ukrainian prosecutor says // Reuters, 02.04.2024: https://www.reuters.com/world/europe/hallmarks-genocide-russian-crimes-across-ukraine-ukrainian-prosecutor-says-2024-04-02/.

[66] Notice of suspicion to T.M. Sergeytsev (original and translation) // Office of the Prosecutor General, 06.05.2022: https://www.gp.gov.ua/ua/posts/povidomlennya-pro-pidozru-sjergjeicevu-tm-original-ta-pereklad. Calls for genocide of the Ukrainian people - the court sentenced the director of the Russian propaganda TV channel "RT" // Office of the Prosecutor General, 17.02.2023: https://www.gp.gov.ua/ua/posts/zakliki-do-genocidu-ukrayinskogo-narodu-sud-vinis-virok-rosiiskomu-propagandistskogo-telekanalu-rt. In Ukraine, Russian propagandist Gasparyan was sentenced in absentia to 10 years in prison // Livyi Bereg, November 15, 2023: https://lb.ua/society/2023/11/15/584383_ukraini_rosiyskogo_propagandista.html. Ukrainian justice sanctions "call for genocide" // Justice.Info, 21.04.2023: https://www.justiceinfo.net/uk/116826-%D1%83%D0%BA%D1%80%D0%B0%D1%97%D0%BD%D1%81%D1%8C%D0%BA%D0%B5-%D0%BF%D1%80%D0%B0%D0%B2%D0%BE%D1%81%D1%83%D0%B4%D0%B4%D1%8F-%D1%81%D0%B0%D0%BD%D0%BA%D1%86%D1%96%D0%BE%D0%BD%D1%83%D1%94-%D0%B7.html.

[67] A law on criminal liability that partially mitigates criminal liability or otherwise improves the situation of a person, and partially increases criminal liability or otherwise worsens the situation of a person, has retroactive effect in time only to the extent that it mitigates criminal liability or otherwise improves the situation of a person. / Part 3 of Article 5 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[68] Article 442-1. Crimes against humanity
1. Intentionally committing as part of a widespread or systematic attack directed against civilian population:
1) persecution of any identifiable group or community, i.e. restriction of human rights on political, racial, national, ethnic, cultural, religious, sexual or other grounds (signs) of discrimination recognized as impermissible under international law;
2) deportation of the population, that is, the forcible displacement (eviction) in the absence of grounds permitted by international law of a group of persons from the area in which they were legally present to the territory of another state;
3) forced displacement of the population, that is, the forcible displacement (eviction) in the absence of grounds permitted by international law of a group of persons from the area in which they were legally present to another area within the same state;
4) rape, sexual exploitation, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence;
5) enslavement or trafficking in persons;
6) enforced disappearance;
7) unlawful deprivation of liberty;
8) torture;
9) other intentional inhumane acts of a similar character, accompanied by the causing of great suffering, moderate or severe bodily injury or serious harm to mental or physical health, - shall be punishable by imprisonment for a term of seven to fifteen years.
2. Intentional commission of the crime of apartheid, extermination, or murder as part of a widespread or systematic attack against the civilian population shall be punishable by imprisonment for a term of ten to fifteen years or life imprisonment. // Criminal Code of Ukraine, No. 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[69] Article 437. Crime of aggression
1. Planning, preparation or waging of an aggressive war or armed conflict, or conspiring to commit any such acts shall be punishable by imprisonment for a term of ten to fifteen years.
2. Conducting an aggressive war or aggressive military actions shall be punishable by imprisonment for a term of twelve to fifteen years or life imprisonment. // Criminal Code of Ukraine, No. 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[70] Articles 18 and 22 of the Criminal Code of Ukraine // Criminal Code of Ukraine, № 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[71] Definition of aggression, General Assembly Resolution: https://legal.un.org/avl/ha/da/da.html.

[72] Rome Statute of the International Criminal Court, 17.07.1998 [Eng]: https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.

[73] Ibid at 65.

[74] Armed aggression is the use of armed force by another state or group of states against Ukraine. Any of the following actions shall be considered to be the armed aggression against Ukraine: invasion or attack of Ukrainian territory by the armed forces of another state or group of states; occupation or annexation of a part of the territory of Ukraine; blockade of ports, coasts or airspace, disruption of communications of Ukraine by the armed forces of another state or group of states; attack of the armed forces of another state or group of states on the military land, sea or air forces or civilian sea or air fleets of Ukraine; sending by or on behalf of another state of armed groups of regular or irregular forces which commit acts of armed force against Ukraine of such a serious nature that they are tantamount to the acts listed in indents five to seven hereof, including the significant participation of a third state in such acts; actions of another state(s) that allows its territory, which it has made available to a third state, to be used by that third state(s) to perform the actions referred to in indents five to eight hereof; use another state’s or group of states’ units of the armed forces located in the territory of Ukraine in accordance with international agreements concluded with Ukraine against a third state or group of states, other violations of the terms and conditions stipulated by such agreements, or prolongation of the stay of these units in the territory of Ukraine after the termination of the said agreements. / Article 1 // Law of Ukraine ‘On Defence of Ukraine,’ No. 1932-ХІІ, 06.12.1991: https://zakon.rada.gov.ua/laws/show/1932-12#Text.

[75] First introduced by Law of Ukraine ‘On Peculiarities of State Policy on Ensuring State Sovereignty of Ukraine in Temporarily Occupied Territories in Donetsk and Luhansk Regions,’ No. 2268-VIII, 18.01.2018: https://zakon.rada.gov.ua/laws/show/2268-19#Text.

[76] 47. …for example: heads of states and governments; members of the parliaments; leaders of political parties; diplomats; heads of special services; commanders of the armed forces, subordinated to the state, but also of the illegal armed groups; other persons who de facto act as military commanders; heads of the executive departments tasked with the development and implementation of state policies and legal frameworks as related to the activities of the armed groups and arms circulation; heads whose legal status is not included in the notion of a “military commander” and those who exercise the power or control over those persons who participate in the aggressive war or aggressive military actions, who although are not in formal positions, but are capable of influencing military and political processes, connected with the planning, preparation, and launching of an aggressive war or armed conflict and conducting aggressive war or aggressive military activities/Supreme Court Resolution, case № 415/2182/20, 28.02.2024: https://reyestr.court.gov.ua/Review/117555176.

[77] Law of Ukraine “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in connection with the Ratification of the Rome Statute of the International Criminal Court and Amendments thereto”, No. 4012-IX, 09.10.2024: https://zakon.rada.gov.ua/laws/show/4012-20#n6.

[78] Article 438. War crimes
‍1. Cruel treatment of prisoners of war or civilians, driving civilian population to forced labor, pillage of national treasures in the occupied territory, use of methods of warfare prohibited by international law, other violations of the laws and customs of war provided as stipulated by international treaties ratified by the Verkhovna Rada of Ukraine, or issuing an order to commit such acts shall be punishable by imprisonment for a term of eight to twelve years.
2. The same actions, if they resulted in the death of a person, shall be punishable by imprisonment for a term of ten to fifteen years or life imprisonment. // Criminal Code of Ukraine, No. 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[79] Criminal Code of Ukraine, No. 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text. The Legal Framework for Adjudicating War Crimes in Ukraine. Assessment Report and Recommendations on Ensuring Efficient and Fair Adjudication of War Crimes Cases // USAID Activity Office: Office of Democracy and Governance, 29.08.2022: https://drive.google.com/file/d/1AKf1wtvKjv5VKoFuvFnd4nMI-IG2kOL9/view.

[80] Notice of suspicion to R.D. Kochermin (original and translation) // Office of the Prosecutor General, 12.05.2022: https://www.gp.gov.ua/ua/posts/povidomlennya-pro-pidozru-kocerminu-rd-original-ta-pereklad.

[81] Law of Ukraine “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in connection with the Ratification of the Rome Statute of the International Criminal Court and Amendments thereto”, No. 4012-IX, 09.10.2024: https://zakon.rada.gov.ua/laws/show/4012-20#n6.

[82] On the Decision of the National Security and Defense Council of Ukraine of April 13, 2014 ‘On urgent measures to overcome the terrorist threat and preserve the territorial integrity of Ukraine’ // Decree of the President of Ukraine, No. 405/2014, 14.04.2014: https://www.president.gov.ua/documents/4052014-16886

[83] 1. Creation of a terrorist group or terrorist organization, leadership of or participation in such a group or organization, as well as organizational or other assistance to the creation or activity of a terrorist group or terrorist organization shall be punishable by imprisonment for a term of eight to fifteen years with or without confiscation of property. / Article 258-3 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text .

[84] 4. Participation in an attack on enterprises, institutions, organizations or citizens as provided for in parts one or two of this article shall be punishable by imprisonment for a term of seven to twelve years with or without confiscation of property. / Article 260 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[85] Sentence of the Sosnivskyi District Court of Cherkasy, case No. 712/5682/20, 15.11.2021: https://reyestr.court.gov.ua/Review/101080267. Verdict of the Zhovtnevyi District Court of Zaporizhzhia, case no. 331/2599/19, 23.07.2019: https://reyestr.court.gov.ua/Review/83218352. Verdict of Pavlohrad City District Court of Dnipropetrovska oblast, case no. 201/8846/23, 02.10.2023: https://reyestr.court.gov.ua/Review/113869347. Judgment of the Koroliovskyi District Court of Zhytomyr, case no. 296/3045/21, 01.09.2023: https://reyestr.court.gov.ua/Review/113187315. Verdict of the Shevchenkivskyi District Court of Kyiv, case No. 761/14625/23, 08.09.2023: https://reyestr.court.gov.ua/Review/113347533.

[86] Article 27 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[87] Article 28 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[88] Article 438 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[89] Article 438 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[90] Article 426. Inaction of the military authorities
1. Intentional failure to prevent a criminal offence committed by a subordinate, or failure of a military official to report to a pre-trial investigation body a criminal offence committed by a subordinate, as well as other intentional failure of a military official to perform actions that they were required to perform by their official duties, which caused significant damage, shall be punishable by a fine of one thousand to four thousand tax-free minimum incomes, or restriction of service for a term of up to two years, or deprivation of liberty.
2. The same acts, if they caused grave consequences, shall be punishable by imprisonment for a term of three to seven years.
3. Acts envisaged by parts one or two of this Article, committed during a special period, except for martial law, shall be punishable by imprisonment for a term of five to seven years.
4. Acts envisaged by parts one or two of this Article committed under martial law or in a combat situation shall be punishable by imprisonment for a term of seven to ten years.// Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[91] Servicemen of the Armed Forces of Ukraine, the Security Service of Ukraine, the State Border Guard Service of Ukraine, the National Guard of Ukraine and other military formations established under the laws of Ukraine, the State Special Transport Service, the State Service for Special Communications and Information Protection of Ukraine, as well as other persons determined by law, shall be liable under the relevant articles of this Section.
Special Forces police officers of the National Police of Ukraine who are directly involved in hostilities during martial law shall be liable under Articles 402, 403, 414-416, 422, 427, 429, 430, 432-435 of this Section / Article 401 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[92] Sentence of the Snihuriv District Court of Mykolaiv Region, case No. 485/1015/23, 05.07.2024: https://reyestr.court.gov.ua/Review/120200633. Message from the official account of the Security Service of Ukraine // Telegram, 27.03.2024: https://t.me/SBUkr/11565. Message from the official account of the Security Service of Ukraine // Telegram, 24.06.2024: https://t.me/SBUkr/12241. Message from the official account of the Security Service of Ukraine // Telegram, 24.08.2024: https://t.me/SBUkr/12730. Message from the official account of the Security Service of Ukraine // Telegram, 30.08.2024: https://t.me/SBUkr/12782. Message from the official account of the Security Service of Ukraine // Telegram, 03.10.2024: https://t.me/SBUkr/13030. Message from the official account of the Security Service of Ukraine // Telegram, 20.12.2023: https://t.me/SBUkr/10687. Message from the official account of the Security Service of Ukraine // Telegram, 30.07.2023: https://t.me/SBUkr/8821. Message from the official account of the Security Service of Ukraine // Telegram, 29.09.2023: https://t.me/SBUkr/9818. Message from the official account of the Security Service of Ukraine // Telegram, July 13, 2023: https://t.me/SBUkr/8949. ‘These are war crimes’. Poklonskaya received the status of a suspect - Lutsenko // Krym.Realii, 10.10.2018: https://ru.krymr.com/a/news-poklonskaya-poluchila-status-podozrevaemoj/29535846.html. Kyiv Court of Appeal granted permission to detain a former so-called “prosecutor” of annexed Crimea suspected of high treason // Kyiv Court of Appeal, 07.12.2021: https://www.kas.gov.ua/?p=28189&fbclid=IwAR04Bfqnu0UGLAwIJkI6PqmOKzo-k5Khi3dcwsJ6EcN-PPFsoTpZ5KcYOPE. Ukraine completes investigation into treason of Aksyonov, Poklonska and Co. // Ukrayinska Pravda, 11.06.2021: https://www.pravda.com.ua/news/2021/06/11/7296936/.

[93] Notice of suspicion and summons to appear to A.P. Kuzminykh // Office of the Prosecutor General, 07.01.2025: https://www.gp.gov.ua/ua/posts/povidomlennya-pro-pidozru-ta-povistka-pro-viklik-kuzminix-ap-ukr-ta-ros. Notice of suspicion to Mr. Skitskyi O.I. // Office of the Prosecutor General, 03.01.2025: https://www.gp.gov.ua/ua/posts/povidomlennya-pro-pidozru-grskitskogo-oi-ukrayinskoyu-ta-pereklad-rosiiskoyu. Sentence of the Suvorovskyi District Court of Odesa, case No. 523/224/23, 27.03.2024: https://reyestr.court.gov.ua/Review/117988682. Sentence of the Trostianets District Court of Sumy region, case no. 588/1363/23, 14.02.2024: https://reyestr.court.gov.ua/Review/116968500. Sentence of the Chervonozavodskyi District Court of Kharkiv, case No. 646/4862/23, 16.10.2024: https://reyestr.court.gov.ua/Review/122340678. Sentence of the Chernihiv District Court of Chernihiv Oblast, case no. 748/1278/23, 11.03.2024: https://reyestr.court.gov.ua/Review/117537510. Message from the official account of the Security Service of Ukraine // Telegram, 20.12.2024: https://t.me/SBUkr/13621. Message from the official account of the Security Service of Ukraine // Telegram, 06.01.2025: https://t.me/SBUkr/13709.

[94] ICTY, Prosecutor v. Brđanin, Appeals Chamber, Judgment, 3 April 2007, ICTY-99-36-A, para. 362.

[95] ICC, Prosecutor v. Lubanga, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29 January 2007, ICC-01/04-01/06-803. ICC, Prosecutor v. Lubanga, Trial Chamber I, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842, para. 984. ICC, Prosecutor v. Katanga, Trial Chamber II, Judgment pursuant to article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436, para. 1399.

[96] ICC, Prosecutor v. Katanga and Ngudjolo, Pre-Trial Chamber I, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717, para. 495. ICC, Prosecutor v. Lubanga, Pre-Trial Chamber I, Decision on the confirmation of charges, 29 January 2007, ICC-01/04-01/06, para. 330. ICC, Prosecutor v. Blé Goudé, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 11 December 2014, ICC-02/11-02/11-186, para. 137.

[97] ICC, Prosecutor v. Bemba et al, Trial Chamber VII, Judgment, 19 October 2016, ICC-01/05-01/13, paras. 76-77, 847-848. ICC, Prosecutor v. Katanga and Ngudjolo, Pre-Trial Chamber I, Amended Document Containing the Charges Pursuant to Article 61(3)(a) of the Statute, 26 June 2008, ICC-01/04-01/07-649-AnxlA, para. 94.

[98] ICC, Prosecutor v. Bemba et al, Trial Chamber VII, Judgment, 19 October 2016, ICC-01/05-01/13, paras. 76-77, 847-848. ICC, Prosecutor v. Katanga and Ngudjolo, Pre-Trial Chamber I, Amended Document Containing the Charges Pursuant to Article 61(3)(a) of the Statute, 26 June 2008, ICC-01/04-01/07-649-AnxlA, para. 94.

[99] ICC, Prosecutor v. Bemba et al, Trial Chamber VII, Judgment, 19 October 2016, ICC-01/05-01/13, paras. 84-96. ICC, Prosecutor v. Mbarushimana, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 16 December 2011, ICC-01/04-01/10-465-Red, para. 279. ICC, Prosecutor v. Lubanga, Trial Chamber I, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842, para. 997.

[100] ICC, Prosecutor v. Mbarushimana, Pre-Trial Chamber I, Prosecution’s Application under Article 58, 20 August 2010, ICC-01/04-573, p. 68. ICC, Prosecutor v. Mbarushimana, Pre-Trial Chamber I, Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana, 11 October 2010, ICC-01/04-01/10-1, para. 39. ICC, Prosecutor v. Mbarushimana, Pre-Trial Chamber I, Decision on the confirmation of charges, 16 December 2011, ICC-01/04-01/10-465-Red, para. 273.

[101] Article 25 (3) / Rome Statute of the International Criminal Court // ICC, 17.07.1998: https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf. ICC, Prosecutor v. Banda and Jerbo, Pre-Trial Chamber I, Decision on the Conformation of Charges, 7 March 2011, ICC-02/05-03/09, paras. 96–99. ICC, Prosecutor v. Katanga and Ngudjolo, Pre-Trial Chamber I, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717, para. 460.

[102] Prosecutor v. Tadic, Case No. IT-94-1-T, 7 May 1997, paras. 674. Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Case No. IT-96-21-T, 16 Nov. 1998, paras. 325. Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, 10 Dec. 1998, paras. 190-249. Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, 2 Sept. 1998, para. 484.

[103] The Rome Statute of the International Criminal Court // Verkhovna Rada of Ukraine, 17.07.1998: https://zakon.rada.gov.ua/laws/show/995_588#Text.

[104] Article 25 (3 bis) / Rome Statute of the International Criminal Court // ICC, 17.07.1998: https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.

[105] Article 28 / Rome Statute of the International Criminal Court // ICC, 17.07.1998: https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.

[106] Article 86 - Failure to act
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87 - Duty of commanders
1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.
2. In order to prevent and Protocol.
3. The High Contracting Parties asuppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and thisnd Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof. // Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

[107] ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, paras. 333- 343. ICTR, Ndindiliyimana et al., TC II, Judgement, Case No. ICTR-00-56-T, 17 May 2011, para. 126.

[108] ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 407.

[109] Draft Law on Amendments to Certain Legislative Acts of Ukraine Regarding Implementation of International Criminal and Humanitarian Law, No. 2689, 27.12.2019: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=67804.

[110] Draft Law On Amendments to Criminal Code of Ukraine and Criminal Procedure Code of Ukraine, No. 7290, 15.04.2022: https://itd.rada.gov.ua/billInfo/Bills/Card/39449.

[111] Criminal Code of Ukraine, No. 2341-ІІІ, 05.04.2001: https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[112] Decision of the Constitutional Court of Ukraine in a case opened upon a constitutional petition filed by 46 Ukrainian MPs seeking the official interpretation of provisions of Article 58 of the Constitution of Ukraine, Articles 6 and 81 of the Criminal code of Ukraine (case on the retroactive application of criminal law), No. 6-рп/2000, 19.04.2000: https://zakon.rada.gov.ua/laws/show/v006p710-00#Text.

[113] Post by Iryna Mudra // Facebook, 09.10.2024: https://www.facebook.com/share/p/15UsFNhfxc/.

[114] Law of Ukraine “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in connection with the Ratification of the Rome Statute of the International Criminal Court and Amendments thereto”, No. 4012-IX, 09.10.2024: https://zakon.rada.gov.ua/laws/show/4012-20#n6.

[115] Foreigners or stateless persons who do not permanently reside in Ukraine and who have committed any of the crimes provided for in Articles 437-439, 442, 442-1 of this Code outside Ukraine shall be liable in Ukraine under this Code regardless of the instances (conditions) provided for in part one of this Article, if such persons are on the territory of Ukraine and cannot be extradited (transferred) to a foreign state or international judicial institution for prosecution or if their extradition (transfer) is denied. / Part 2 of Article 8 // Criminal Code of Ukraine, No. 2341-III, 05.04.2001:https://zakon.rada.gov.ua/laws/show/2341-14#Text.

[116] Comment on the Draft Law of Ukraine on Amendments to the Criminal and Criminal Procedure Codes of Ukraine in connection with the ratification of the Rome Statute of the International Criminal Court and amendments thereto // Verkhovna Rada of Ukraine: https://itd.rada.gov.ua/43b7b251-b13f-42a5-9226-13670ac8e49d,

[117] Draft Law on Criminal Liability for International Crimes // Verkhovna Rada of Ukraine, No. 11538, 02.09.2024: https://itd.rada.gov.ua/billInfo/Bills/Card/44789.

[118] Explanatory Note to the Draft Law on Criminal Liability for International Crimes // Verkhovna Rada of Ukraine, No. 11538, 02.09.2024: https://itd.rada.gov.ua/f2066168-87d8-4b4b-8ccc-d98d2ab1b244.

[119] The Verkhovna Rada adopted in the first reading two bills necessary for the implementation of the Rome Statute // Ukrinform, 05.12.2024: https://www.ukrinform.ua/rubric-polytics/3934712-vr-uhvalila-v-persomu-citanni-dva-zakonoproekti-neobhidni-dla-implementacii-rimskogo-statutu.html.

[120] Draft Laws No. 11538 and No. 11539 will block the investigation of international crimes in Ukraine and should not be adopted / Joint Appeal of the representatives of the Ukraine 5AM Coalition and the Tribunal for Putin Initiative // Center for Civil Liberties, December 19, 2024: https://ccl.org.ua/claims/zakonoproyekty-%e2%84%96-11538-ta-%e2%84%96-11539-zablokuyut-rozsliduvannya-mizhnarodnyh-zlochyniv-v-ukrayini-i-ne-mayut-buty-pryjnyatymy/.

[121] A requirement of the rule of law is compliance with the principle of legal certainty, which ensures uniform application of a legal provision and prevents opportunities for its arbitrary interpretation. Legal certainty of a legal provision is a key condition for ensuring effective judicial protection by an independent court for everyone.” / Paragraphs 1, 2 of subsection 2.3 of section 2 of the reasoning part // Decision of the Constitutional Court of Ukraine (Grand Chamber) in the case of the constitutional petition of 55 MPs of Ukraine on the compliance of Article 375 of the Criminal Code of Ukraine with the Constitution of Ukraine (constitutionality) of June 11, 2020, No. 7-r/2020: https://zakon.rada.gov.ua/laws/show/v007p710-20#Text.

[122] Draft Law on Criminal Liability for International Crimes // Verkhovna Rada of Ukraine, No. 11538, 02.09.2024: https://itd.rada.gov.ua/billInfo/Bills/Card/44789.

[123] Draft Law on Criminal Liability for International Crimes // Verkhovna Rada of Ukraine, No. 11538, 02.09.2024: https://itd.rada.gov.ua/billInfo/Bills/Card/44789.

[124] Draft Law on Criminal Liability for International Crimes // Verkhovna Rada of Ukraine, No. 11538, 02.09.2024: https://itd.rada.gov.ua/billInfo/Bills/Card/44789.

[125] Article 147 / Geneva Convention relative to the Protection of Civilian Persons in Time of War // Verkhovna Rada of Ukraine, 12.08.1949: https://zakon.rada.gov.ua/laws/show/995_154#Text.

[126] Directing the commission of a crime of genocide, that is, the intentional commission by a person who actually directed or controlled the political or military activities of a state, personally or jointly with another person or through another person 1) developing a plan to commit the crime of genocide, 2) participating in the political decision-making process for its commission, 3) ordering the commission of the crime of genocide, 4) inciting the commission of such a crime, or 5) directing actions constituting the crime of genocide, shall be punishable by imprisonment for a term of twenty to thirty years or 6 life imprisonment / Article 18 // Draft Law on Criminal Liability for International Crimes // Verkhovna Rada of Ukraine, No. 11538, 02.09.2024: https://itd.rada.gov.ua/billInfo/Bills/Card/44789.

[127] For example, actions such as the confiscation of vehicles and communication devices from civilians by the military, which could be substantiated by military necessity; the shelling of military positions within civilian areas; and the consequences for civilians caused by explosive remnants of war, among others.

[128] Arts 27-28 CCU: https://media.ellinikahoaxes.gr/uploads/2023/09/%D0%9A%D1%80%D0%B8%D0%BC%D1%96%D0%BD%D0%B0%D0%BB%D1%8C%D0%BD%D0%B8%D0%B9-%D0%BA%D0%BE%D0%B4%D0%B5%D0%BA%D1%81-%D0%A3%D0%BA%D1%80%D0%B0%D1%97%D0%BD%D0%B8-_-on-April-5-2001-%E2%84%96-2341-III-Print-version.pdf

[129] Judgement, Tadic (IT-94-1), Appeals Chamber, 15 July 1999, para 185 et seq.