Justice in war crimes cases in Ukraine: the first challenges
Authors: Fuley Tatiana 
Published: July 2023

Justice in war crimes cases in Ukraine: the first challenges. Mass atrocities during the full-scale phase of armed aggression against Ukraine inevitably bring up the issue of justice and prosecuting those suspected of committing war crimes. Considering the role of the judiciary, which is essential in a state based on the rule of law as the guarantor of justice, both Ukrainian society and the legal community should be interested in ensuring that the war crimes trials as well as verdicts meet the generally recognized standards of justice. Based on the analysis of verdicts concerning Art. 438 of the Criminal Code of Ukraine (CCU) (violation of the laws and customs of war) issued after the beginning of the full-scale invasion and available in the State registry of court decisions in 19 criminal proceedings, the author identified the challenges that Ukrainian courts face when considering war crimes cases. In 14 criminal proceedings, the defendants were citizens of the Russian Federation (in 13 – servicemen of the Russian Armed Forces, in 1 – also members of a private military company), in 5 – citizens of Ukraine. 15 verdicts out of 19 became final, i.e. 9 of them were not appealed, 1 was changed by a court of appeal, 1 was upheld, and in 4 cases, the appeal proceedings were closed due to the withdrawal of appeals by the accused. War crimes cases are considered new for the Ukrainian judiciary. Therefore, the knowledge of criminal justice system personnel on basic provisions of International Humanitarian Law (IHL) and International Criminal Law is very limited, which resulted in the incorrect qualification of crimes committed in the ATO zone in 2014-2021 as either terrorism or ordinary criminal cases, although some of them had features of war crimes and crimes against humanity. The lack of knowledge on IHL remains relevant even after the full-scale invasion. The author identified it as a key challenge Ukrainian judiciary face when considering criminal proceedings concerning Art. 438 of the CCU. It should be emphasized, however, that according to the Criminal Procedure Code (Art. 337) the court is limited by the charges in the indictment and may go beyond the indictment only if it improves the situation of the accused person. Therefore, courts avoid any actions caused by the shortcomings of the indictment which might be interpreted as worsening the situation of the accused, even if it affects the quality of decisions. Thus, courts do not indicate specific provisions of international treaties to which Art. 438 CCU is referring (i.e. Geneva Conventions or Additional Protocol I) if they are not mentioned in the indictment or use the extensive description of the international armed conflict, which prevails over the assessment of the “nexus” of specific conduct of the accused to the armed conflict. Some other challenges Ukrainian judiciary face when considering war crimes cases including proportionality of the punishment and the impartiality of the judiciary, which were highlighted starting with the first trial in the Shishimarin case.

Key words: justice, rule of law, court, violation of laws and customs of war, war crimes.