Draft Law for a
UkrainianHigh War Crimes Court
Prepared by the
Public International Law & Policy GroupDRAFT LAW FOR A UKRAINIAN HIGH WAR CRIMES COURT
PREPARED BY THE PUBLIC INTERNATIONAL LAW & POLICY GROUP
Introductory Note
The International Criminal Court (ICC) has opened an investigation and will likely
prosecute a handful of high-level perpetrators of atrocity crimes committed in Ukraine. Since
the ICC does not have jurisdiction over the crime of aggression with respect to Ukraine, there areproposals to establish a hybrid international or regional tribunal to prosecute high-level Russians
for the crime of aggression currently under discussion. Because these international mechanisms
are designed to prosecute a small number of individuals, there is recognition that most of theperpetrators will need to be prosecuted by domestic courts in Ukraine. Yet, history has shownthat without international assistance and involvement it is inherently difficult to fairly andeffectively prosecute foreign nationals and separatists in ordinary domestic courts during and in
the aftermath of an armed conflict.
This draft Law, prepared by the Public International Law & Policy Group, Weil, Gotshal& Manges LLP, and a number of consulted experts, draws from the Law on the High
Anti-Corruption Court of Ukraine and best practices of other States to provide the template for a
Ukrainian High War Crimes Court to prosecute atrocity crimes committed in Ukraine sinceNovember 2013. It is a discussion draft intended to inform the formulation of a domestic
prosecutorial mechanism that will complement the efforts by existing domestic courts, the ICC,
and any future hybrid international tribunal for the crime of aggression.1 The footnotes include
options and explanations for the proposed provisions.

1

Ukraine is not a member of the International Criminal Court (ICC); however, it has accepted the court’s limited
jurisdiction over alleged crimes committed on its territory since November 2013. The ICC could exercise
jurisdiction over individuals accused of war crimes, crimes against humanity and genocide in cases in whichdomestic courts are unable or unwilling to prosecute, such as if high-level accused perpetrators are present in a third
country which is unwilling to extradite him to Ukraine for prosecution. Because of its limited capacity and thenumber of other situations it is currently investigating and prosecuting, the ICC traditionally asserts jurisdiction over
only a handful of the highest-level defendants, so there would still be a need for the High War Crimes Court ofUkraine to prosecute the next level of culpable civilian and military leaders. Further, the ICC would not havejurisdiction over the crime of aggression since the Russian Federation has not consented to jurisdiction over thatcrime pursuant to the 2010 Aggression Amendment to the Rome Statute.

DRAFT LAW OF UKRAINEOn the High War Crimes Court
Contents
Chapter I.
Article 1. Definitions

4

Article 2. The status of the High War Crimes Court

4

Article 3. The language of the High War Crimes Court

5

Article 4. The legislative framework of the functioning of the High War Crimes
Court.

5

Article 5. Objectives of the High War Crimes Court

5

Chapter II.
Article 6. Powers and Jurisdiction of the High War Crimes Court

6

Article 7. Composition of the High War Crimes Court

16

Article 8. The Chief of the High War Crimes Court, Deputy Chief, the Chief of the
Appeal Chamber of the High War Crimes Court
16
Chapter III.
Article 9. Special requirements to a judge of the High War Crime Court

17

Article 10. Competition for the position of a judge of the High War Crimes Court 18
Article 11. The Public Council of International Experts

20

Article 12. International Legal Advisors

22

Chapter IV.
Article 13. Additional guarantees of safety of judges of the High War Crimes

23

Court
Article 14. Enhancement of the professional competence of a judge of the High War
Crimes Court
23
Article 15. Provision of housing to a judge of the High War Crimes Court

24

Chapter V.

2

Article 16. Financial support of the activity of the High War Crimes Court

24

Article 17. Requirements to the location of the High War Crime Court

24

Article 18. Organizational Support of the Work of the High War Crimes Court

25

Article 19. Protection of Victims and Witnesses

25

Chapter VI.
Article 20. Enforcement

25

Chapter VII.
Article 21. Independence of the High War Crimes Court

26

Article 22. The Right to a Fair Trial

26

Article 23. The Right to a Competent Court

26

Article 24. Equality Before the Law and the Court

26

Article 25. Professional Legal Assistance in the Implementation of the Right to a
Fair Trial
26
Article 26. Transparency and Openness of Court Proceedings
Chapter VIII.

3

26
27

This Law determines the principles of the organization and functioning of the High War Crimes
Court, special requirements to the judges of this court and the guarantees of their activity.

Chapter I.
GENERAL PROVISIONS
Article 1.

Definitions

For the purposes of this legislation, the following terms shall mean:
Atrocity crimes: are those international crimes recognized in the Amended Statute of theInternational Criminal Court (“ICC”), namely war crimes, crimes against humanity, genocide,and crimes of aggression.
Gender: refers to the two sexes, male and female, within the context of society.
International armed conflicts: exist when two or more States resort to armed force.2
International humanitarian law: the set of rules seeking, for humanitarian reasons, to limit theeffects of international armed conflicts and non-international armed conflicts. It protects persons
who have not or are no longer participating in the hostilities and restricts the means and methodsof warfare.3
Non-international armed conflicts: protracted armed confrontations occurring between
governmental armed forces and the forces of one or more armed groups, or between such groups
arising on the territory of a State party to the Geneva Conventions. The armed confrontationmust reach a minimum level of intensity and the parties involved in the conflict must show aminimum of organization.4 Situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar nature are excluded.5
Article 2.

The status of the High War Crimes Court

1.
The High War Crimes Court is a highly specialized court in the judicial system of
Ukraine, consisting of Trial Chambers and an Appeals Chamber similar to the High
Anti-Corruption Court of Ukraine. It will have an initial duration of 10 years that may be
extended in accordance with Ukrainian law.

2

This definition was recommended by the International Committee of the Red Cross (ICRC) in its opinion paper“How is the Term ‘Armed Conflict’ defined in International Humanitarian Law? (March 2008), p. 5, available at:https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf
3International humanitarian law is also known as the law of war or the law of armed conflict. This definition was
taken from ICRC’s paper entitled What is International Humanitarian Law? (2004), available at:https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
4This definition was recommended by the ICRC in its opinion paper “How is the Term ‘Armed Conflict’ defined inInternational Humanitarian Law? (March 2008), p.1, p. 5, available at:https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf
5This language is taken from Article 8(d) of the International Criminal Court (ICC) Statute.

4

2.
The High War Crimes Court is a legal entity, has a seal with the National Emblem of
Ukraine and its name on it.
3.
The High War Crimes Court is located in the city of Kyiv, Ukraine. The Court may
relocate to and conduct proceedings elsewhere in Ukraine when appropriate and feasible.
Article 3.

The language of the High War Crimes Court

The official language of the Court shall be Ukrainian. Working languages of the Court shall
include English and Ukrainian.6 In the event of any discrepancies between documents, theUkrainian version of the document will prevail.7 The Court will make sure that the necessarytranslations of documents and simultaneous interpretations during oral proceedings areavailable.8
Article 4.

The legislative framework of the functioning of the High War Crimes Court.

4.
The legislative framework of the functioning of the High War Crimes Court consists of
the Constitution of Ukraine, the Law of Ukraine “On the Judiciary and the Status of Judges,” thisLaw and other laws of Ukraine, international treaties in force, consented by the Verhovna Radaof Ukraine as binding.
5.
Amendments to this Law may be made exclusively by laws on the introduction ofchanges to the Law of Ukraine “On the High War Crimes Court.”
Article 5.

Objectives of the High War Crimes Court

6.
The objective of the High War Crimes Court is the administration of justice in accordancewith the principles and procedures of the judiciary prescribed by the law with the view to protect
individuals and society from war crimes, crimes against humanity, genocide, the crime ofaggression, and related crimes recognized by Ukraine. Additionally, the High War Crimes Court
will have judicial oversight over pre-trial investigation of these crimes, and observance of rights,
freedoms and interests of individuals in a criminal proceeding.

6

Including English as a working language is justified by the fact that the Court will include foreign legal advisors
and that evidence may have been gathered in the English language by international humanitarian agencies present inUkraine.
7
This is to address potential issues in the domestic legislation arising from having English as a working language of
the Court.
8
Article 12(3) of the Law of Ukraine on the Judiciary and Status of Judges reads: Courts shall use the official
language in the course of the judicial proceedings and guarantee citizens' right to use their native language, or the
language they speak, in the course of the proceedings.” With respect to whether this Article is limited to Ukrainian
citizens, it appears it does not. According to Article 7(2) of the same law (the right to a fair trial), “[f]oreigners,
stateless persons and foreign legal entities shall be entitled to judicial protection in Ukraine on equal basis with thecitizens and legal entities of Ukraine.” In any case, the Court should have whatever translators necessary on its staff
at all times to facilitate the smooth conduction of the proceedings. Further, According to the experience of theInternational Criminal Tribunal for Rwanda (“ICTR”), switching to simultaneous translation during oral proceedings(as opposed to consecutive interpretation), has resulted in a 25% time saving.

5

7.
As a matter of policy,9 the main purpose of the High War Crimes Court is to prosecute
those persons most responsible for committing atrocity crimes in Ukraine since November 2013.
For the purposes of this Law, “persons most responsible” means a person or persons who wereknowingly responsible for any or all of the following acts: planning, instigating, inciting,funding, ordering or providing other logistics which directly or indirectly facilitated thecommission of crimes falling within the jurisdiction of the Court; in determining whether aperson or persons falls within this category for purposes of bringing charges, the Prosecutor10
shall have regard to factors including the leadership role or level of authority or decision making
power or influence of the person concerned and the gravity, severity, seriousness or scale of thecrime committed.11

Chapter II.
ORGANIZATION OF THE FUNCTIONING OF THE HIGH WAR CRIMES COURT
Article 68.

Powers and Jurisdiction of the High War Crimes Court

The High War Crimes Court shall:administer justice as the first-instance and appeal court in criminal proceedings concerning
crimes within its jurisdiction according to procedural law as well as by means of performing, incases and pursuant to the procedure prescribed by the law, judicial oversight over observance ofrights, freedoms and interests of individuals in such criminal proceedings; analyze judicial
statistics, study and generalize judicial practice in criminal proceedings within its jurisdiction,
inform the Supreme Court on the results of such generalization and provide it with proposals forconclusions on draft legislative acts pertaining to the organization and activity of the High War
Crimes Court, special requirements to the judges of this court and guarantees of their activity, as
well as publish them on its official website.

9

It is envisioned that the Prosecutors’ Office will select which war crimes cases will be tried by ordinary Ukrainiancourts and which will be directed to the High War Crimes Court.
10
It is understood that the prosecutors acting before the High War Crimes Court are to be special prosecutors trained
in international criminal law, and assisted by international experts. Such a category of special prosecutors shall becreated within the General Prosecutor’s office by an amendment to the applicable law.
11
This is the definition of the Special Tribunal for Kenya Bill of “persons bearing the greatest responsibility.” We
understand that the “persons most responsible” is a broader concept targeting not only the top ranking officials but
also middle level officials. We believe this definition, however, might be broad enough to accomplish such goal. The
Kenyan Tribunal was never created but the bill was drafted following the experience of the Special Court for Sierra
Leone (SCSL), which encountered various jurisdictional challenges based on the “persons bearing the greatest
responsibility” language. In fact, in the context of the creation of the SCSL the United Nations’ Secretary-Generalsuggested to the United Nations Security Council to use the alternative terms “persons most responsible” to replace
the “greatest responsibility” language. He stated: “[w]hile those ‘most responsible’ obviously include the political or
military leadership, others in command authority down the chain of command may also be regarded ‘most
responsible’ judging by the severity of the crime or its massive scale. ‘Most responsible[,]’ therefore, denotes either
a leadership or authority position of the accused, and a sense of the gravity, seriousness or massive scale of thecrime. It must be seen, however, not as a test criterion or a distinct jurisdictional threshold, but as a guidance to theProsecutor in the adoption of a prosecution strategy and in making decisions to prosecute in individual cases.”
Taking all the above into account, the prosecution of the “most responsible” is included here in the objectives of theHigh Court as a matter of policy instead of in the article dealing with jurisdiction.

6

9.
Territorial jurisdiction of the High War Crimes Court shall cover the entire territory of
Ukraine.12
10.
The Court shall have subject matter jurisdiction over atrocity crimes, in particular, thefollowing:13a)– The Crime of Genocide14

i.Article 442 of the Ukrainian Criminal Code defines genocide as “a willfully committed
act for the purpose of total or partial destruction of any national, ethnic, racial, or religious
group by extermination of members of any such group or inflicting grave bodily injuries
on them, creation of life conditions calculated for total or pratial physical destruction of
the group, decrease or prevention of childbearing in the group, or forceful transferring ofchildren from one group to another… and also making any materials with calls to
genocide for the purpose of distribution, or distribution of such materials.”ii.Under principles of international law recognized by the Ukraine contained in theConvention on the Prevention and Punishment of the Crime of Genocide, dated
December 9, 1948, “genocide” means any of the following acts committed with intent todestroy, in whole or in part, a national, ethnical, racial or religious group, as such:1)killing members of the group;2)

causing serious bodily or mental harm to members of the group;3)
deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;4)

imposing measures intended to prevent births within the group; and5)

forcibly transferring children of the group to another group.

iii.The following acts shall be punishable:

121)

genocide;2)

conspiracy to commit genocide;3)

direct and public incitement to commit genocide;4)

attempt to commit genocide; andThis includes areas of Ukraine currently under the control of a foreign State.
In addition to these four internationally recognized atrocity crimes, the High War Crimes Court would havejurisdiction over related crimes contained in the Criminal Code of Ukraine such as: Article 109 (actions aimed atforceful change or overthrow of the constitutional order or take-over of government), Article 110 (trespass against
territorial integrity and inviolability of Ukraine), Article 110-2 (financing of actions committed for the purpose of
forcible change or overthrow of the constitutional order or take-over of government, change of boundaries of theterritory or state border of Ukraine), Article 112 (trespass against life of a statesman or a public figure), Article 155(murder), Article 127 (torture), Article 146 (illegal confinement or abduction of a person), Article 146-1 (hostage
taking), Article 152 (rape), Article 332-2 (illegal crossing of the state border of Ukraine), Article 349 (hostage taking
of a representative of government authorities or a law enforcement officer), Article 437 (planning, preparation andwaging of an aggressive war), Article 438 (violation of rules of the warfare), Article 439 (use of weapons of mass
destruction), and Article 447 (use of mercenaries).
14
The definition of the crime of genocide in this Law is based on Articles II and III of the Convention on thePrevention and Punishment of the Crime of Genocide.
13

7

5)
b)

complicity in genocide.

– Crimes against Humanity15
i. According to internationally recognized principles of customary international law
codified in the Rome Statute for an International Criminal Court, and reflected in various
provisions of the Ukraine Criminal Code, “crimes against humanity” means any of thefollowing acts when committed as part of a widespread or systematic attack directedagainst any civilian population, with knowledge of the attack:1)

Murder;162)

Extermination;173)

Enslavement;

4)

Deportation or forcible transfer of population;18

5)Imprisonment or other severe deprivation of physical liberty in violation of
fundamental norms of international law;19
6)

15

Torture;20

The definition of crimes against humanity in this Law is based on Article 7 of the ICC Statute, excluding thecrimes of apartheid and enforced sterilization, which do not appear applicable in the context of the armed conflict in
Ukraine. This definition is widely viewed as reflecting customary international law. The Criminal Code of Ukraine
does not have a specific Article on Crimes Against Humanity, but various Articles of the Code do reflect the types ofcrimes recognized as a Crime Against Humanity when committed on a systematic and widespread basis.
Nevertheless, it is recommended that the Criminal Code of Ukraine be amended to add a specific Article on Crimes
Against Humanity so that Ukraine can satisfy the obligations it has undertaken to the International Criminal Court.
16
Under Article 115 of the Ukrainian Criminal Code, murder is defined as the “willful unlawful causing death ofanother person.”
17
The Nuremburg Tribunal held that if one murder is unlawful, then mass murder is also unlawful. Similarly, since
Article 115 prohibits murder under Ukrainian law, then mass murder, or extermination, must also be unlawful under
the current law of Ukraine.
18
Article 146 of the Ukrainian Criminal Code forbids the illegal confinement or abduction of a person. Similarly,
Article 147 of the Code prohibits hostage taking which it defines as the “[t]aking or holding a person as a hostage
with the intent to induce relatives of the hostage, any government agency or other institution, business ororganization, any natural person or any official to make or refrain from any action as a condition for release of thehostage.” Additionally, Article 149 of the Code proscribes the trafficking in human beings or other illegal transfer
deals with respect to a human being. It defines the trafficking of human beings as the “[s]ale, other transfer for
payment or any other illegal deals with regard to a person, involving legal or illegal movement of that person, withor without his/her consent, across the border of Ukraine for further sale or other transfer to any person (or persons)for the purpose of sexual exploitation, use in pornobusiness, engagement in criminal activities, peonage, adoption
for commercial purposes, use in armed conflicts, labor exploitation…”
19
Article 146 of the Ukrainian Criminal Code prohibits the illegal confinement or abduction of a person.
20
The Ukrainian Criminal Code forbids battery and torture in Article 126. It defines such conduct as “[i]ntended
blows, battery or other violent acts which caused physical pain but no bodily injury.” Article 127 of the Code further
proscribes torture, defining it as the “willful causing of severe physical pain or physical or mental suffering by way
of battery, martyrizing or other violent actions for the purpose of inducing the victim or any other person to commit
involuntary actions.”8

7)
Rape,21 sexual slavery, enforced prostitution,22 forced pregnancy, or any otherform of sexual violence of comparable gravity;
8)
Persecution against any identifiable group or collectivity on political, racial,national, ethnic, cultural, religious, gender or other grounds that are universally
recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Tribunal ;9)

Enforced disappearance of persons;23 and10)
Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
ii.For the purposes of paragraph i):
1)“Attack directed against any civilian population” means a course of conduct
involving the multiple commission of acts referred to in paragraph a) against any
civilian population, pursuant to or in furtherance of a State or organizational policy tocommit such attack;2)“Extermination” includes the intentional infliction of conditions of life, suchas the deprivation of access to food and medicine, calculated to bring about thedestruction of part of a population;
3)“Enslavement” means the exercise of any or all of the powers attaching to theright of ownership over a person and includes the exercise of such power in thecourse of trafficking in persons, in particular women and children;4)“Deportation or forcible transfer of population” means forced displacement of
the persons concerned by expulsion or other coercive acts from the area in which they
are lawfully present, without grounds permitted under international law;

21

Article 152 of the Ukrianian Criminal Code prohibits rape and defines it as “sexual intercourse combined withviolence, threats of violence, or committed by taking advantage of the victim’s helpless condition.” The Code also
outlaws the “violent unnatural gratification of sexual desire” in Article 153. It defines such conduct as the “[v]iolent
unnatural gratification of sexual desire combined with physical violence, or threats of violence, or committed bytaking advantage of the victim’s helpless condition.” Additionally, Article 154 proscribes “compulsion to sexualintercourse” which is defined as “compulsion of a female or male to natural or unnatural sexual intercourse by aperson on whom such female or male is financially or officially dependent.” Article 155 of the Code further outlaws
sexual intercourse with a sexually immature person.
22
Article 303 of the Ukrainian Criminal Code outlaws prostitution or the “compelling to and engaging inprostitution.” It defines such conduct as the provision of “sexual services for a fee by use of violence or threats ofviolence or destruction or endamagement of property, or by blackmail or deceit.”
23
The Ukrainian Criminal Code proscribes the illegal confinement or abduction of a person in Article 146.
Similarly, in Article 147 the Code prohibits hostage taking. It defines such conduct as the “[t]aking or holding aperson as a hostage with the intent to induce relatives of the hostage, any government agency or other institution,business or organization, any natural person or any official to make or refrain from any action as a condition for
release of the hostage.” The Code also outlaws the trafficking in human beings or other illegal transfer deals withrespect to a human being. Article 149 defines such conduct as the “[s]ale, other transfer for payment or any otherillegal deals with regard to a person, involving legal or illegal movement of that person, with or without his/her
consent, across the border of Ukraine for further sale or other transfer to any person (or persons) for the purpose of
sexual exploitation, use in pornobusiness, engagement in criminal activities, peonage, adoption for commercial
purposes, use in armed conflicts, labor exploitation.”95)“Torture” means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the accused;
except that torture shall not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions;
6)“Persecution” means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group orcollectivity; and7)“Enforced disappearance of persons” means the arrest, detention or abductionof persons by, or with the authorization, support or acquiescence of, a State or apolitical organization, followed by a refusal to acknowledge that deprivation of
freedom or to give information on the fate or whereabouts of those persons, with theintention of removing them from the protection of the law for a prolonged period of
time.
c)

– War Crimes24

Article 438 of the Criminal Code of Ukraine on Violations of the Rule of the Warfare defines
war crimes as consisting of “cruel treatment of prisoners of war or civilians, deportation ofcivilian population for forced labor, pillage of national treasures on occupied territories, useof methods of the warfare prohibited by international instruments, or any other violations ofrules of the warfare recognized by international instruments consented to by binding by the
Verkhovna Rada (Parliament) of Ukraine, and also giving an order to commit any suchactions.”
For the purposes of Article 438 25 of the Criminal Code “methods of the warfare prohibited byinternational instruments, or any other violations of rules of the warfare recognized byinternational instruments consented to by binding by the Verkhovna Rada,” “war crimes”
means:
i.Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of thefollowing acts against persons or property protected under the provisions of the relevant
Geneva Convention:

24

1)

Willful killing;

2)

Torture or inhuman treatment, including biological experiments;26

The definition of war crimes in this Law is based on Article 8, paragraph 2, of the ICC Statute. This includes both
war crimes committed in an international armed conflict (Article 8, paragraphs 2 (a) and 2(b)) and war crimes
committed in an armed conflict not of an international character (Article 8, paragraphs 2 (c), 2 (d), 2 (e) and 2 (f)).
25
Article 438 of the Ukrainian Criminal Code states: Cruel treatment of prisoners of war or civilians, deportation ofcivilian population for forced labor, pillage of national treasures on occupied territories, use of methods of thewarfare prohibited by international instruments, or any other violations of rules of the warfare recognized byinternational instruments consented to by binding by the Verkhovna Rada (Parliament) of Ukraine, and also giving
an order to commit any such actions, - shall be punishable by imprisonment for a term of eight to twelve years. 2.
The same acts accompanied with a murder, - shall be punishable by imprisonment for a term of ten to fifteen years,
or life imprisonment.
26
Article 127 of the Ukrianian Criminal Code defines torture as a “willful causing of severe physical pain or physicalor mental suffering by way of battery, martyrizing or other violent actions for the purpose of inducing the victim or
any other person to commit involuntary actions.”

10

3)

Willfully causing great suffering, or serious injury to body or health;27

4)
Extensive destruction and appropriation of property, not justified by militarynecessity and carried out unlawfully and wantonly;
5)
Compelling a prisoner of war or other protected person to serve in the forcesof a hostile power;
6)
Willfully depriving a prisoner of war or other protected person of the rights offair and regular trial;
7)

Unlawful deportation or transfer or unlawful confinement; and8)

Taking of hostages.28

ii.Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of thefollowing acts:
1)
Intentionally directing attacks against the civilian population as such oragainst individual civilians not taking direct part in hostilities;
2)
Intentionally directing attacks against civilian objects, that is, objects which
are not military objectives;
3)
Intentionally directing attacks against personnel, installations, material, units
or vehicles involved in a peacekeeping mission in accordance with the Charter of theUnited Nations or in a humanitarian assistance mission, as long as they are entitled tothe protection given to civilians or civilian objects under the international law ofarmed conflict;4)
Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which would beclearly excessive in relation to the concrete and direct overall military advantage
anticipated;
5)
Attacking or bombarding, by whatever means, towns, villages, dwellings orbuildings which are undefended and which are not military objectives;
6)
Killing or wounding a combatant who, having laid down his arms or having
no longer means of defense, has surrendered at discretion;
7)
Making improper use of a flag of truce, of the flag or of the military insignia
and uniform of the enemy or of the United Nations, as well as of the distinctive
emblems of the Geneva Conventions, resulting in death or serious personal injury;
27

Article 121 of the Ukrainian Criminal Code defines intended grievous bodily injury as “a willful bodily injury
which is dangerous to life at the time of infliction, or resulted in a loss of any organ or its functions, or caused amental disease or any other health disorder attended with a persisting loss of not less than one-third of working
capability, or interruption of pregnancy, or permanent disfigurement of face.”
28
Article 147 of the Ukrainian Criminal Code defines hostage taking as “[t]aking or holding a person as a hostage
with the intent to induce relatives of the hostage, any government agency or other institution, business ororganization, any natural person or any official to make or refrain from any action as a condition for release of thehostage.”11

8)
The transfer, directly or indirectly, by the occupying power of parts of its own
civilian population into the territory it occupies, or the deportation or transfer of all orparts of the population of the occupied territory within or outside this territory;
9)
Intentionally directing attacks against buildings dedicated to religion,29
education, art, science or charitable purposes, historic monuments,30 hospitals andplaces where the sick and wounded are collected, provided they are not military
objectives;
10)
Subjecting persons who are in the power of an adverse party to physicalmutilation or to medical or scientific experiments of any kind that are neither justified
by the medical, dental or hospital treatment of the person concerned nor carried out in
his or her interest, and which cause death to or seriously endanger the health of such
person or persons;
11)
Killing or wounding treacherously individuals belonging to the hostile nationor army;12)

Declaring that no quarter will be given;

13)
Destroying or seizing the enemy’s property unless such destruction or seizure
be imperatively demanded by the necessities of war;
14)
Declaring abolished, suspended or inadmissible in a court of law, or otherwise
depriving, the rights and actions of the nationals of the hostile party;
15)
Compelling the nationals of the hostile party to take part in the operations of
war directed against their own country, even if they were in the belligerent’s service
before the commencement of the war;
16)

Pillaging a town or place, even when taken by assault;

17)

Employing poison or poisoned weapons;

18)
Employing asphyxiating, poisonous or other gasses, and all analogous liquids,
materials or devices;
19)
Employing bullets which expand or flatten easily in the human body, such asbullets with a hard envelope which does not entirely cover the core or is pierced withincisions;
20)
Committing outrages upon personal dignity, in particular humiliating anddegrading treatment;
21)
Committing rape,31 sexual slavery, enforced prostitution,32 forced pregnancy,
or any other form of sexual violence of comparable gravity;
29

The Ukrainian Criminal Code Article 197 prescribes punishment for “the illegal retention, desecration, or
destruction of religious sanctities.”
30
Article 289 of the Ukrainian Criminal Code prescribes punishment for “willful spoiling, destruction of or
impairment of historical or cultural monuments.”
31
Rape is defined as “sexual intercourse combined with violence, threats of violence, or committed by taking
advantage of the victim's helpless condition” under Article 152 of the Ukrainian Criminal Code.
32
Article 152 of the Ukrainian Criminal Code defines enforced prostitutition as “provid[ing] sexual services for a
fee by use of violence or threats of violence or destruction or endamagement of property, or by blackmail or deceit.”

12

22)
Utilizing the presence of a civilian or other protected person to render certain
points, areas or military forces immune from military operations;23)
Intentionally directing attacks against buildings, material, medical units andtransport, and personnel using the distinctive emblems of the Geneva Conventions inconformity with international law;
24)
Intentionally using starvation of civilians as a method of warfare by depriving
them of objects indispensable to their survival, including wilfully impeding relief
supplies as provided for under international law; and25)
Conscripting or enlisting children under the age of fifteen years into thenational armed forces or using them to participate actively in hostilities.
iii.In the case of an armed conflict not of an international character, any of the following
acts committed against persons taking no active part in the hostilities, including membersof armed forces who have laid down their arms and those placed hors de combat bysickness, wounds, detention or any other cause:
1)
Violence to life and person, in particular murder of all kinds, mutilation, crueltreatment33 and torture;
2)
Committing outrages upon personal dignity, in particular humiliating anddegrading treatment;
3)

Taking of hostages; and4)
The passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.
iv.Other serious violations of the laws and customs of war applicable in armed conflict
not of an international character, within the established framework of internationallaw, namely, any of the following acts:
1)
Intentionally directing attacks against the civilian population as such oragainst individual civilians not taking direct part in hostilities;
2)
Intentionally directing attacks against buildings, material, medical units andtransport, and personnel using the distinctive emblems of the Geneva Conventions inconformity with international law;
3)
Intentionally directing attacks against personnel, installations, material, units,
or vehicles involved in a peacekeeping mission in accordance with the Charter of theUnited Nations or in a humanitarian assistance mission, as long as they are entitled tothe protection given to civilians or civilian objects under the international law ofarmed conflict;

33

Article 438 of the Ukrainian Criminal Code prohibits cruel treatment of civilians.

13

4)Intentionally directing attacks against buildings that are dedicated toreligion,34 education, art, science, or charitable purposes, historic monuments,35
hospitals and places where the sick and wounded are collected, provided they are notmilitary objectives;
5)

Pillaging a town or place,36 even when taken by assault;

6)
Committing rape,37 sexual slavery, enforced prostitution,38 forced pregnancy,
or any other form of sexual violence of comparable gravity;
7)
Conscripting or enlisting children under the age of fifteen years into armed
forces or groups or using them to participate actively in hostilities;
8)
Ordering the displacement of the civilian population for reasons related to theconflict, unless the security of the civilians involved or imperative military reasons so
demand;9)

Killing or wounding treacherously a combatant adversary;

10)

Declaring that no quarter will be given;

11)
Subjecting persons who are in the power of another party to the conflict tophysical mutilation or to medical or scientific experiments of any kind that are neither
justified by the medical, dental or hospital treatment of the person concerned nor
carried out in his or her interest, and which cause death to or seriously endanger thehealth of such person or persons;
12)
Destroying or seizing the property of an adversary, unless such destruction or
seizure be imperatively demanded by the necessities of the conflict;
13)

Employing poison or poisoned weapons;

14)
Employing asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices; and15)
Employing bullets which expand or flatten easily in the human body, such asbullets with a hard envelope which does not entirely cover the core or is pierced withincisions.
d)34– Crime of Aggression 39

Article 179 of the Ukrainian Criminal Code prescribes punishment for “the illegal retention, desecration, or
destruction of religious sanctities.”
35
Article 289 of the Ukrainian Criminal Code outlines punishment for “willful spoiling, destruction of or
impairment of historical or cultural monuments.”
36
Article 179 of the Ukrainian Criminal Code prohibits the “pillag[ing] of national treasures on occupied
territories.”
37
The Ukrainian Criminal Code defines rape in Article 152, as “sexual intercourse combined with violence, threatsof violence, or committed by taking advantage of the victim's helpless condition.”
38
Article 152 of the Ukrainian Criminal Code defines enforced prostitutition as “provid[ing] sexual services for a
fee by use of violence or threats of violence or destruction or endamagement of property, or by blackmail or deceit.”
39
The definition of the crime of aggression in this Statute is based on Article 8 of the ICC Statute.

14

i. According to Article 437 40 of the Criminal Code of Ukraine on Planning, Preparation,and Waging of an Aggressive War– the “[p]lanning, preparation or waging of anaggressive war or armed conflict, or conspiring for any such purposes, - shall bepunishable by imprisonment for a term of seven to twelve years” and “[c]onducting an
aggressive war or aggressive military operations, - shall be punishable by imprisonment
for a term of ten to fifteen years.”
ii.In addition, under international law recognized by the Ukraine, the “crime of aggression”
means the planning, preparation, initiation or execution, by a person in a position
effectively to exercise control over or to direct the political or military action of a State,of an act of aggression which, by its character, gravity and scale, constitutes a manifest
violation of the Charter of the United Nation.
iii.For the purpose of paragraph a), “act of aggression” means the use of armed force by aState against the sovereignty, territorial integrity or political independence of anotherState, or in any other manner inconsistent with the Charter of the United Nations. Any of
the following acts, regardless of a declaration of war, shall, in accordance with United
Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as anact of aggression:
1)
The invasion or attack by the armed forces of a State of the territory of
another State, or any military occupation, however temporary, resulting from suchinvasion or attack, or any annexation by the use of force of the territory of anotherState or part thereof;
2)
Bombardment by the armed forces of a State against the territory of anotherState or the use of any weapons by a State against the territory of another State;
3)
The blockade of the ports or coasts of a State by the armed forces of anotherState;
4)
An attack by the armed forces of a State on the land, sea or air forces, or
marine and air fleets of another State;5)
The use of armed forces of one State which are within the territory of anotherState with the agreement of the receiving State, in contravention of the conditions
provided for in the agreement or any extension of their presence in such territory
beyond the termination of the agreement;
6)
The action of a State in allowing its territory, which it has placed at thedisposal of another State, to be used by that other State for perpetrating an act ofaggression against a third State; and7)
The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to the acts listed above, or its substantial involvement therein.

40

Article 437 of the Ukrainian Criminal Code states that (1) “planning, preparation or waging of an aggressive war
or armed conflict, or conspiring for any such purposes, - shall be punishable by imprisonment for a term of seven to
twelve years” and (2) “conducting an aggressive war or aggressive military operations, - shall be punishable byimprisonment for a term of ten to fifteen years.”

15

11.
The Court shall have jurisdiction for crimes committed in Ukraine since November
2013..
12.
In interpreting the crimes within its jurisdiction, theories of liability, evidentiary matters,
and standards for sentencing, the Court may consider rulings of international courts to help
inform their decision.
Article 7

Composition of the High War Crimes Court

13.
The number of judges of the High War Crimes Court shall be determined in accordancewith the Law of Ukraine “On the Judiciary and the Status of Judges” keeping in mind thefinancial means of the High War Crimes Court, and include a specific number of judges for the
Appeal Chamber of the High War Crimes Court.41
14.
In order to perform judicial oversight over observance of rights, freedoms and interests ofindividuals in criminal proceedings within the jurisdiction of the High War Crimes Court,
investigative judges shall be elected from among the staff of this court for the period of one year
without the right to be re-elected for the position of the investigative judge two years in a row.
15.
A judge of the Appeal Chamber of the High War Crimes Court may not be elected for the
position of the investigative judge.
16.
Determination of the number of investigative judges in the High War Crimes Court, theirelection, performance of duties of a judge of the first instance in the High War Crimes Court
shall be carried out pursuant to the procedure prescribed by the Law of Ukraine “On the
Judiciary and Status of Judges” for the purposes of determination of the number of investigative
judges, their election and performance of duties of a judge in local courts.
Article 8
The Chief of the High War Crimes Court, Deputy Chief, the Chief of the Appeal
Chamber of the High War Crimes Court
17.
The Chief Judge of the Appeal Chamber of the High War Crimes Court shall be the Chiefof the High War Crimes Court. He or she exercises administrative powers prescribed by the Law
of Ukraine “On the Judiciary and Status of Judges” and this Law.
18.
The Chief of the High War Crimes Court shall have one deputy exercising administrative
powers determined by the Chief of the High War Crimes Court.

41

With regard to the number of chambers of the Court, Article 31 of the Law of Ukraine “On the Judiciary andStatus of Judges” reads: “[t]he decision on establishing a judicial chamber, its composition and on election of theSecretary of the Chamber shall be adopted by the meeting of judges of the respective high specialized court, upon
the proposal of the Chief Judge.” With regard to the term of the Chief judges, Article 20 of Section 2 Chapter 1 of
the Law of Ukraine “The Chief Judge of the trial court, their Deputy, Chief Judge of the appellate court, their
Deputies, Chief Judge of the high specialized court and their Deputies shall be elected to their position by meetingof judges by secret ballot by a majority of the judges of a relevant court for a three-year term but not exceeding theterm of office of a judge within the procedure established by law.”

16

19.
The position of the Chief or Deputy Chief of the High War Crimes Court shall not grant a
judge of the High War Crimes Court relief from exercising the powers of a judge prescribed by
the law nor suspend this judge from work in the respective judicial chamber or duties of thesecretary of a judicial chamber of the High War Crimes Court.
20.
The Chief Judge of the Appeal Chamber of the High War Crimes Court and the Chief
Judge of the trial court of the High War Crimes Court shall be elected pursuant to the procedureand exercise powers prescribed by the War Crimes “On the Judiciary and Status of Judges.”

Chapter III.
PROCEDURE OF TAKING THE POSITION OF A JUDGE OF THE HIGH WAR CRIMES
COURT
Article 9Special requirements to a judge of the High War Crime Court

21.
An individual complying with the requirements to the candidates for the position of ajudge defined by the Constitution of Ukraine and the Law of Ukraine “On the Judiciary andStatus of Judges”42 as well as additional special requirements established by this article may be a
judge of the High War Crimes Court.
22.
A citizen of Ukraine may be appointed for the position of a judge of the High War Crimes
Court if he or she complies with the requirements to the candidates for the position of a judge
specified in the Law of Ukraine “On the Judiciary and Status of Judges” and possesses
knowledge and practical skills necessary for performing judicial functions in international
humanitarian law, international law or human rights related cases, as well as complies with anyof the following requirements:a)
has at least five years of experience as a judge;b)holds a law degree and has at least seven years of scholarly experience in law;c)
has at least seven years of professional experience as a defense attorney, including
representation in court and/or defense from criminal charges;d)has at least seven years of total experience of work (professional activity) for
items a-c of this paragraph.
23.
For the purposes of paragraph 2 of this Article, the terms “professional experience inlaw,” “scholarly experience,” “degree” are used in the meaning prescribed in Article 69,
paragraph 6, of the Law of Ukraine “On the Judiciary and Status of Judges.”24.

An individual shall not be eligible for the position of a judge if:a)within the ten years prior to the appointment, this individual:
has worked (served) in bodies of interior affairs of Ukraine, the Armed Forces of Ukraine, theNational Police of Ukraine, the State Investigation Bureau, other law enforcement agencies, tax
police, the Security Service of Ukraine, customs bodies, the National War Crimes Bureau of
Ukraine, has held political office or a representative mandate.
42

Chapter 4 Section 2 of the Law of Ukraine “On the Judiciary and Status of Judges” is devoted to “Highspecialized courts,” including the High Anti-Corruption Court.

17b)within the past five years, the individual has been among the top management of apolitical party or had labor or other contractual relationship with a political party;c)the individual has been a member of the High Qualification Commission ofJudges of Ukraine or the High Council of Justice before the Law of Ukraine “On the
Restoration of Trust in the Judicial Power in Ukraine” came into effect;d)a court verdict which came into force and prohibits the individual to hold office orengage in activity connected with the performance of functions of the state of local
self-government (with the exception of rehabilitated individuals) regardless of such aconviction having been expunged or removed from official records, or if the individual
had a criminal record for any intentional crime regardless of such a conviction having
been expunged or removed from official records.
Article 10

Competition for the position of a judge of the High War Crimes Court

25.
The competition for the position of a judge of the High War Crimes Court shall take placepursuant to the procedure determined by the Constitution of Ukraine and the Law of Ukraine“On the Judiciary and Status of Judges,” taking into account the peculiarities prescribed by this
Article.
26.
The transfer of judges of other courts to the positions of judges of the High War Crimes
Court without competition or within disciplinary measures shall not be permitted.
27.
To be admitted to the qualification assessment to participate in the competition for the
position of a judge of the High War Crimes Court pursuant to the special procedure, a candidate
for the position of a judge submits to the High Qualification Commission of Judges of Ukraine,in addition to the documents defined by the Law of Ukraine “On the Judiciary and the Status ofJudges,” documents confirming the compliance with the requirements provided in Article 10,paragraph 2 of this Law as well as a statement on the absence of circumstances stated in Article
10, paragraph 4 of this Law.
28.
In order to assist the High Qualification Commission of Judges of Ukraine in theestablishment of compliance of the candidates for the positions of judges of the High War Crimes
Court with the criteria of integrity (moral, honesty, incorruptibility) for the purposes ofqualification assessment, namely in terms of lawfulness of the origin of sources of thecandidate’s property, correspondence of the standard of living of the candidate or his or her
family members with the declared income, correspondence of the candidate’s lifestyle to his or
her status, knowledge and practical skills that the candidate possesses for the consideration ofcases within the jurisdiction of the High War Crimes Court, the Public Council of International
Experts shall be formed. The Public Integrity Council, established and acting in accordance with
the Law of Ukraine “On the Judiciary and the Status of Judges,” shall not be involved in theestablishment of compliance of the candidates for the positions of judges of the High War Crimes
Court to the criteria prescribed by the Law for the purposes of qualification assessment for theduration of activity of the Public Council of International Experts.
29.
Upon initiative of at least three members of the Public Council of International Experts,
the question of compliance of any candidate for the position of a judge of the High War Crimes
Court with the criteria established in paragraph 4 of this Article, shall be reviewed at a special
18joint meeting of the High Qualification Commission of Judges of Ukraine and the Public Councilof International Experts. The decision on compliance of this candidate with these criteria shall beapproved by the majority of the joint composition of the High Qualification Commission ofJudges of Ukraine and the Public Council of International Experts provided that at least half ofthe members of the Public Council of International Experts voted in favour of it. Shall such a
decision not be taken, the candidate is considered to cease participation in the competition. Suchspecial joint meeting shall be held no later than thirty days from the day of announcement of theexamination results taken by the candidates for the establishment of their compliance with theprofessional competence criteria for the position of a judge.
At the request of at least three members of the Public Council of International Experts, before thespecial joint meeting of the High Qualification Commission of Judges of Ukraine and the Public
Council of International Experts, a prior interview may be held with the candidates for the
position of a judge of the High War Crimes Court, in which at least six members of the High
Qualification Commission of Judges of Ukraine shall take part.
30.
In case of the same position in the ranking compiled on the basis of the qualificationassessment for participation in the competition for the position of a judge of the Appeal Chamberof the High War Crimes Court, preference shall be given to the participant who has received agreater score for the practical part of the exam taken as part of the qualification assessment, andif the score is identical, as a rule, to the participant who has more work experience on theposition of a judge of an appeal or cassation court. If participants of the competition for the
position of a judge of the Appeal Chamber of the High War Crimes Court have equal experienceon the position of a judge in appeal or cassation courts or do not have any such experience,
preference shall be given to the candidate who has more experience on the position of a judge, if
experience on the position of a judge is equal for both participants – to the participant who holds
a scholarly degree, if both have it or neither does – to the participant with greater professional
experience in law.
In case of the same position in the ranking compiled on the basis of the qualification assessment
for participation in the competition for the position of a general judge of the High War Crimes
Court, preference shall be given to the participant who has received a greater score for thepractical part of the exam taken as part of the qualification assessment, and if the score is
identical, as a rule, to the participant who has more work experience on the position of a judge. If
the participants of the competition for the position of a judge of the High War Crimes Court haveequal experience on the position of a judge or do not have any such experience, preference shallbe given to the participant who holds a scholarly degree, if both have it or neither does – to theparticipant with greater professional experience in law.
31.
At every stage of the qualification assessment of the candidates for the position of a judgeof the High War Crimes Court and during the assessment of the results of such qualificationassessment by the secretariat of the High Qualification Commission of Judges of Ukraine, video
and audio recording and live broadcast of the respective meetings of the High Qualification
Commission of Judges of Ukraine shall be published on the official website of the High
Qualification Commission of Judges of Ukraine, and those of the Public Council of International
Experts – on the official website of the State Judicial Administration of Ukraine.
32.
When the High Council of Justice reviews the matter of the submission of a motion on
the appointment of a judge of the High War Crimes Court to the President of Ukraine and takes a19decision concerning the candidate for the position of a judge of the High War Crimes Court,
video and audio recording and live broadcast of the respective meetings of the High Council of
Justice shall be published on the official website of the High Council of Justice provided by thesecretariat of the High Council of Justice.
Article 11

The Public Council of International Experts

33.
The Public Council of International Experts shall be formed for the period of six years by
the High Qualification Commission of Judges of Ukraine to facilitate it in the preparation ofdecisions on the appointment of judges of the High War Crimes Court and shall be a subsidiary
body.
34.
The Public Council of International Experts shall exercise its powers in the compositionof six members appointed by the High Qualification Commission of Judges of Ukraine
exclusively based on the nominations of international organizations with which Ukraine
cooperates in the area of international humanitarian law, human rights and international peace
and in accordance with international treaties of Ukraine.43
Every such international organization may suggest to the High Qualification Commission ofJudges of Ukraine at least two candidates to the Public Council of International Experts.
The High Qualification Commission of Judges of Ukraine shall decide on the appointment of themembers of the Public Council of International Experts if the number of nominated candidates to
the Public Council of International Experts at least twice exceeds the number of vacant positions.
Decision on the appointment of the members of the Public Council of International Experts shallbe taken at the meeting of the High Qualification Commission of Judges of Ukraine.
35.
Citizens of Ukraine or foreigners with impeccable business standing, high professionaland moral qualities, respect in the society, at least five years of experience in other countries inprocedural management, support of public prosecution in court or administration of justice ininternational war crimes and crimes against humanity-related cases may be members of the
Public Council of International Experts.
36.
Individuals who fail to comply with the requirements provided in Article 9, paragraph 4of this Law may not be members of the Public Council of International Experts.
37.
Members of the Public Council of International Experts shall be appointed for the term ofoffice of two years and may not be reappointed.
38.
For the period of participation of the members of the Public Council of International
Experts in the procedure of the selection of candidates for the positions of judges of the HighWar Crimes Court they shall be assigned compensation in the amount of the fixed official salary

43

Examples of such organizations are the United Nations, the International Committee of the
Red Cross (ICRC), Council of Europe, and International Federation for Human Rights (FIDH).

20

of a Supreme Court judge. Members of the Public Council of International Experts who do notreside in Ukraine shall have the right for refund of their transport and accommodation expenses.
39.
Powers of a member of the Public Council of International Experts shall be terminatedearly in case of:a)submission of a personal letter of resignation from the position of a member of the
Public Council of International Experts;b)submission of a proposal on premature termination of powers of a member by the
Public Council of International Experts;
c)entrance into force of a court’s verdict against her/him;d)recognition of the member of the Public Council of International Experts aslegally incapable or gone missing;e)
discovery of failure of the member of the Public Council of International Experts
to comply with the criteria established by this Law;f)his or her death;g)end of term prescribed in paragraph 5 of this Article.
40.
The decision on the removal of a member of the Public Council of International Experts
shall be taken by the High Qualification Commission of Judges of Ukraine, which, within tendays after taking it, shall take measures to appoint a new member of the Public Council ofInternational Experts.
41.

The Public Council of International Experts shall:a)collect, verify and analyze information on candidates for the positions of judgesof the High War Crimes Court;b)provide the High Qualification Commission of Judges of Ukraine withinformation on candidates for the positions of judges of the High War Crimes Court;c)participate in a special joint meeting in situations prescribed by this Law;d)take measures to protect personal data, information with restricted access thatcame to the knowledge of the Public Council of International Experts and its members inconnection with their professional activity.

42.
In order to exercise powers established by this Article, the members of the Public Councilof International Experts shall be entitled to access open state registers for free.
43.

21

A member of the Public Council of International Experts shall be obliged:a)to participate in its work personally without the right to delegate his or her powers
to other individuals, including other members of the Public Council of International
Experts;b)
not to use personal data and other information that became known to him or her inconnection with the work in the Public Council of International Experts for any otherpurposes than the professional duties as a member of the Public Council of International
Experts. Any violation of this requirement shall entail responsibility prescribed by thelaw;c)
to refuse to participate in the collection of information on the candidate,reviewing the compliance of a candidate for the position of a judge of the High War
Crimes Court with the criteria established in Article 10, paragraph 4 of this Law if themember of the Public Council of International Experts has or had any personal or
business relationship with the candidate for the position of a judge of the High War
Crimes Court, is involved in cases that are or were reviewed by the judge who is acandidate for the position of a judge of the High War Crimes Court and/or in the event of
any other conflict of interest or circumstances which may affect the objectivity andimpartiality during the decision-making process by the member of the Public Council ofInternational Experts concerning the candidate for the position of a judge of the High War
Crimes Court.
44.
Organizational and technical support of the activity of the Public Council of International
Experts shall be provided by the State Judicial Administration of Ukraine. The activity of the
Public Council of International Experts may be financed with the help of international technicalassistance and through a special donors committee established in accordance with this Law.
Article 12

International Legal Advisors

44
In addition to the duties in Article 41, the Public Council of International Experts shall
facilitate the appointment of International legal advisors in the field of international humanitarian
law and international criminal law. The advisors shall assist and advise the court on mattersconcerning international humanitarian law, international criminal law, and the experience ofsimilar tribunals (whether international or otherwise) at all stages of the proceedings. To that
effect, the international legal advisors shall conduct any research, assist with the drafting ofdecisions, and provide assistance during trials and appeals to the judges of the High War Crimes
Court. The Public Council shall propose a list of legal advisors to the Chief of the High War
Crimes Court.
45.
The Chief of the High War Crimes Court shall select from the selected list of nominees atleast one international legal advisor per chamber of the court, or in their discretion as manyadvisors as they see fit depending on the caseload and needs of each chamber but in each case atleast one advisor.44 The same method shall be used to appoint international advisors for theinvestigative judges, the prosecution, and the defense. The Chief of the High War Crimes Court
shall guarantee that the prosecution and the defense in each case have their own respective
international advisors. Specifically, international advisors shall assist prosecutors with research,drafting indictments, motions, opening and closing arguments, questions for witnesses, andappellate briefs. The international advisors shall be persons of high moral character, impartiality,
and integrity. Preference shall be given to international advisors with the following experience:(i) experience in either a judicial, prosecutorial, or defense capacity in his or her respective
country, or (ii) experience in international war crimes trials or tribunals.

44

The revised statute for the Iraqi High Criminal Court (IHCC) allows for the discretionary appointment of
non-Iraqi experts to act in advisory capacities. It defined their role as providing “assistance with respect tointernational law and the experience of similar Courts (whether international or otherwise).” M. Cherif Bassiouni,
Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein, Case Western
Reserve Journal of International Law, Volume 39 Issue 1 2006-2007, at p.58, available at:https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1302&context=jil

22

46.
International legal advisors to the High Crimes Court shall provide impartial andconfidential consultations and recommendations. International legal advisors assigned to thedefense shall not perform any service that may result into a relationship, such as a relationshipbetween an attorney and his or her client, or accused individual, or to represent any individual in
any proceedings before the High War Crimes Court.

Chapter IV.
PECULIARITIES OF THE STATUS OF JUDGES OF THE HIGH WAR CRIMES COURT
Article 13

Additional guarantees of safety of judges of the High War Crimes Court

48.
The judges of the High War Crimes Court, in connection with the administration ofjustice in the criminal proceedings concerning war crimes and crimes against humanity related
offenses shall be provided, alongside the guarantees established by the Constitution of Ukraine
and the Law of Ukraine “On the Judiciary and the Status of Judges,” with additional guaranteesof their personal security as well as personal security of their family members and preservationof their property.
49.
A judge of the High War Crimes Court and, if necessary upon the judge’s motion, his or
her family members, shall be provided with round-the-clock security escort. At the motion of ajudge of the High War Crimes Court, round-the-clock guard force shall be provided to thepersonal or official residence of the judge.
50.

The home of a judge shall be equipped with security alarm and panic buttons.

51.
Security of a judge of the High War Crimes Court, his or her family members and homeshall be provided by the Judicial Security Service.
52.
If the life or health of a judge of the High War Crimes Court or his or her family members
come into jeopardy, the Judicial Security Service, at the request of the judge, shall provide
temporary housing of such individuals in places where their safety can be guaranteed.
53.
Official premises of the High War Crimes Court shall be equipped with modern security
measures which guarantee judges’ personal safety, preservation of documentation of the HighWar Crimes Court, prevention of illegal access to the premises.
Article 14
Court

Enhancement of the professional competence of a judge of the High War Crimes

54.
Judges of the High War Crimes Court, alongside the measures of maintenance ofprofessional qualifications of judges set forth in the Law of Ukraine “On the Judiciary and the
Status of Judges,” shall be provided with conditions for satisfaction of the individual needs for
personal professional growth, increasing the level of professional competence on justice in thearea of crimes against humanity, new international War Crimes standards and best practices in
the area of international justice.

23

55.
A judge of the High War Crimes Court shall regularly, but no less than once a year,
undergo obligatory further training on the judiciary in the area of crimes against humanity andwar crimes.
56.
The National School of Judges of Ukraine shall organize regular training for judges of theHigh War Crimes Court in order to solidify and update necessary knowledge and skills, deliverworkshops to study up-to-date international practices of the judiciary in the area of war crimes
and crimes against humanity, including those involving representatives of internationalorganizations and foreign educational institutions.
Article 15

Provision of housing to a judge of the High War Crimes Court

57.
A judge of the High War Crimes Court who is not provided with housing shall be
provided by the government with official accommodation for the term of office.
58.
Housing allocated for judges of the High War Crimes Court shall be state-owned.
Removal of the premises provided to the judges of the High War Crimes Court for the term ofoffice from the list of official housing and their alienation shall not be permitted.

Chapter V.
SPECIAL SUPPORT OF ACTIVITY OF THE HIGH WAR CRIMES COURT
Article 16

Financial support of the activity of the High War Crimes Court

59.
The High War Crime Court shall be the principal manager of the funds of the national
budget of Ukraine allocated for financial support of its activity and the special donor committee
created for this purpose.
60.
The expenses for maintenance of the Appeal Chamber of the High War Crime Court shallconstitute a separate item in the national budget of Ukraine and the special donors committee
created for this purpose.
61. The Special Donors Committee shall be permitted to accept international donations to
support the operation of the Court subject to ensuring the Court maintains absolute judicial
independence and integrity. The Special Donors Committee shall have an Oversight Board madeup of an international chair and representatives from the Ukrainian Bar, Parliament, and civilsociety.
Article 17

Requirements to the location of the High War Crimes Court

62.
The Appeal Chamber of the High War Crime Court and the judicial chambers of the HighWar Crimes Court for administration of justice in the first instance may not be located in thesame building.
63.
The High War Crimes Court, its chambers and its administration may not be located in
the same building as other courts, national agencies, their territorial, structural units,
representative offices, bodies of local self-government, institutions, and organizations.

24

64.
The building housing the High War Crimes Court should be reinforced to the greatest
extent possible so as to be strong enough to resist the impact and explosive force of bombs orshells.
Article 18

Organizational Support of the Work of the High War Crimes Court

65.
Organizational support of the work of the High War Crimes Court shall be provided by
the administration of the High War Crimes Court in accordance with the Law of Ukraine “On the
Judiciary and the Status of Judges.”
66. A separate structural unit shall be established in the administration of the High War
Crimes Court for organizational support of the work of the Appeal Chamber of the High War
Crimes Court.
67.
The Chief of the Appeal Chamber of the High War Crimes Court shall control theefficiency of activity of the separate structural unit providing organizational support to the workof the High War Crimes Court, submit proposals on the appointment of the chief of this unit andauthorize his or her dismissal, submit motions on his or her recognition or application of
disciplinary measures in accordance with the law, approve draft regulation on this structural unit
and amendments to this regulation.
Article 19

Protection of Victims and Witnesses

68.
The High War Crimes Court shall provide for the protection of victims and witnesses.
Such protection measures shall include, but shall not be limited to, the conduct of in camera
proceedings and the protection of the victim’s identity.45

Chapter VI. Enforcement
Article 20

Enforcement46

71.
Imprisonment shall be served in prisons in Ukraine. In the case that is not feasible,
sentences may be served in any state on a list of states that have indicated their willingness toaccept persons convicted by the Court that meet Ukrainian standards.
72.
No authority outside the High War Crimes Court of Appeal may grant a pardon or
mitigate the punishment issued by the Court.

Chapter VII. Core Principles of the High War Crimes Court
45

This is separated into its own section in order to highlight its importance, rather than including it in the section onrights of the judges, where it seems out of place.
46

Penalties shall be in accordance with Ukrainian law. It is understood that the highest enforcement for war crimes isa life sentence (See: Criminal Code of Ukraine, Article 12, Classification of Criminal Offenses). If Ukrainian Law isamended to provide for confiscation and forfeiture as a penalty for the crimes within the jurisdiction of the High War
Crimes Court, that penalty shall also be an option in cases before the High War Crimes Court.

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Article 21

Independence of the High War Crimes Court

73.
In exercising justice, the Court shall be independent of any improper influence, andadminister justice proceeding from this Law and the laws of Ukraine.
74.
The Court shall not consider appeals to the court by citizens, organizations, or officials
who are not party to the trial.
75.
Interference with the Court’s administration of justice, or influence on the Courts orJudges shall be prohibited.
76.
In order to protect professional interests of judges and address issues of internalfunctioning of courts in accordance with this Law, judicial self-government shall operate.
Article 22

The Right to a Fair Trial

77.
Every person shall be guaranteed protection of their rights, freedoms and interests withinreasonable time frames by an independent, impartial and fair trial, established by this Law andUkrainian law.
78.

Accessibility of justice shall be ensured under the purview of the Court.

Article 23

Equality Before the Law and the Court

79.
Justice shall be exercised based on the principles of equality of all parties in a trial before
the law and the court, regardless of race, color, political, religious and other beliefs, gender,
ethnic or social origin, property status, residence, language and other characteristics.
80.
The Court shall establish an environment where each party to a proceeding is guaranteedequality in the exercise of the granted procedural rights and in the performance of judicial duties,
as determined by the procedural law.
Article 24
81.

Professional Legal Assistance in the Implementation of the Right to a Fair Trial

Every person shall have the right to professional legal assistance.

82.
The accused may employ their own private legal counsel at their cost, or select from the
Court’s roster of available defense counsel free of charge.
Article 25

Transparency and Openness of Court Proceedings

86.
Court decisions, hearings and information on cases considered by the High War Crimes
Court shall be open. No one may be restricted in their right to receive in-hearing oral or written
information about the results of consideration of their trial. All parties shall be entitled to freeaccess to the judgment in the manner specified by Ukrainian law.
87.
Consideration of cases before the High War Crimes Court shall be open, except in cases
stipulated by Ukrainian law. Any person may be present at an open hearing. However, where a26person has committed acts demonstrating disrespect to the Court or to parties to a case, such
person, upon a substantiated decision of the Court, shall be removed from the courtroom.
88.
The High Court Judges shall promulgate rules guiding the televising of proceedings, andretain discretion to close the proceedings from the public for good cause where publicity would
prejudice the interests of justice.
89.
The Court shall allow the presence of international observers provided by theinternational community. Such international observers shall monitor the protection by the Courtof general due process of law standards.

Chapter VIII.
90.

Final and Transitional Provisions

This Law shall come into force on the next day after its publication.

91.
The following changes shall be made in the following legislative acts of Ukraine: [To be
drafted by specialized Ukrainian legislative council at the appropriate time.]
92.

Within 12 months after this law comes into force, the following shall be done:a)the High War Crimes Court shall be formed according to the procedure and in thecomposition stipulated by this law;b)a competition for the vacancies of judges of the High War Crimes Court’s Appeal
Chamber and other judges of the High War Crimes Court shall be announced and held
according to the law of Ukraine “On the Judiciary and Status of Judges” and according tothis law. As a result of this competition, judges of the High War Crimes Court shall be
appointed.
c)a new class of prosecutors with international criminal law knowledge shall beauthorized to bring criminal proceedings before the High War Crimes Court. To that
effect, a new Office of Prosecutors for the High War Crimes Court shall be created within
the Department of War of the General Prosecutor’s Office of Ukraine. The Office shallbe assisted by international experts consistent with the other provisions of this law.
d)
The day when the High War Crimes Court, in the composition determined by thislaw, starts its operation shall be determined by the decision of a meeting of this court, andthe decision shall be published on the judiciary web-portal and in Holos Ukraiiny paper.
e)
The High War Crimes Court shall start its operation provided at least [number] ofjudges of the High War Crimes Court have been appointed based on the results of thecompetition held in accordance with the Law of Ukraine “On the Judiciary and the Statusof Judges” and this Law, including at least [number] judges of the Appeal Chamber of theHigh War Crimes Court.
f)Within thirty calendar days of the day of appointment of the judges of the HighWar Crimes Court in the number specified in item d) of this chapter, the oldest judge ofthe High War Crimes Court shall convoke a meeting of judges of the High War Crimes

27

Court to decide on the day of the start of operation of the High War Crimes Court, resolveorganizational issues of the court’s activity and elect investigative judges.
g)
If investigative judges are not elected before the day when the High War Crimes
Court starts its operation, their duties shall be performed by three judges of the High War
Crimes Court selected by means of drawing lots at a meeting of judges of the High War
Crimes Court. Judges of the Appeal Chamber of the High War Crimes Court shall notparticipate in such drawing of lots.
h)
The President of Ukraine shall be proposed to submit a draft law on the creationof the High War Crimes Court in accordance with the established procedure.
President of Ukraine
Kyiv[date]
No. [ ]

28

V. ZELENSKYY