Crimes without statute of limitations and consequences for military. What will ratification of Rome Statute change?

In addition, even after the full-scale Russian offensive, the Minister of Justice Denys Maliuska and the Deputy Head of the Presidential Office Andriy Smirnov, who has now been dismissed, said in their public statements that the issue of ratification should be considered after the victory in the war, because, they said, the military had fears that they could be prosecuted by the International Criminal Court. Moreover, government officials did not rule out the possibility that the aggressor country might initiate claims of war crimes allegedly committed by the Ukrainian military. Therefore, when the President suddenly submitted draft laws to the Verkhovna Rada on ratification of the Rome Statute and amendments to criminal law amid the events in the Kursk region, it raised several questions: why now, what will it bring to Ukraine and what will be the consequences for our military. To get competent answers, we forwarded them to international law experts.

WHY NOW?

"I have long supported the ratification of the Rome Statute and the fact that this draft law has now appeared is very positive," said Anton Korynevych, Ambassador-at-Large of the Ministry of Foreign Affairs, in a comment to Censor.NET. "I hope that it will be ratified and Ukraine will become a full member of the International Criminal Court family. Now we are in a very strange situation where, on the one hand, Ukraine has all the obligations to the International Criminal Court as a result of our two declarations of recognition of the jurisdiction of the Court. But it has no rights. What are these rights? For example, to have our own judge at the International Criminal Court. To participate in the work of the Assembly of States Parties to the International Criminal Court. To raise issues for consideration by the Assembly of States Parties, to influence the development of international criminal law. Similarly, Ukraine cannot currently participate in the election of the prosecutor and other elected positions. That is, we have a strange situation where we have assumed all the obligations, but we have no rights or privileges."

According to him, the ratification is also connected with the fact that we have a direct obligation under Article 8 of the Association Agreement between Ukraine and the European Union. "In addition, Ukraine is now actively concluding bilateral security agreements with other states, and many of these agreements contain provisions stating that Ukraine will ratify the Rome Statute on its way to membership in the European Union. And you know that the International Criminal Court is very active in investigating the situation in Ukraine. This is absolutely logical, because this is the most aggressive war since the Second World War. Russia's aggressive war against Ukraine. But, of course, certain international partners may also ask the International Criminal Court why such attention is being paid to the situation in a country that has not yet ratified the Rome Statute. Ratification will remove all these questions.

Again, it will not add to our obligations. But I think it will also facilitate the work of the International Criminal Court in investigating the situation in Ukraine, and most importantly, it will provide Ukraine with the opportunities that we do not have at the moment," he stressed.

Answering a clarifying question about whether this could be in any way related to the events in Kursk, he explained that he did not see any cause and effect. Preparation of an international treaty for ratification takes time and does not occur spontaneously.

Kateryna Busol, an associate professor at the National University of Kyiv-Mohyla Academy, also talks about Ukraine's reputation and establishing relations with international partners. "When we were advocating for the ratification of the Rome Statute, we emphasised that those states that, like Ukraine, initially recognised the jurisdiction of the International Criminal Court by declaration, usually ratified the Rome Statute very quickly afterwards," she says, "especially if the state suffered from an armed conflict or massive human rights violations. That is, the situation that exists in Ukraine, when the state suffers from active hostilities, from all categories of international crimes and does not ratify the Rome Statute, unfortunately, is the only negative precedent, and we need to fix it." She also noted that Russia is using Ukraine's failure to ratify the Rome Statute to damage our country's reputation among the countries of the Global South. "These are the countries of Latin America, Africa and Southeast Asia. They often say that Ukraine receives all the support of the ICC, but does not take on any obligations. For example, to pay membership fees or report to the Assembly of States Parties. Therefore, by ratifying the Rome Statute, we will remove another point of Russian propaganda that Ukraine only receives privileges from the international justice system. This is very important in the dialogue with the countries of the Global South, as we saw that at the Peace Summit in Switzerland, the President's Office often emphasised that they prioritise strengthening cooperation with the Global South. Minister Kuleba recently returned from a tour of the African continent. Ratification of the Rome Statute would be another step towards strengthening engagement with the Global South and reducing the space for Russian disinformation there."

In his turn, former Deputy Prosecutor General Gunduz Mamedov, who has made great efforts to ensure that Ukraine establishes fruitful cooperation with the International Criminal Court and implements the norms of international criminal and humanitarian law, explained in a comment to Censor.NET that we should have ratified the Rome Statute long ago, as it gives us a full adaptation of international criminal justice to the national one. He added that when he worked as a prosecutor of the Autonomous Republic of Crimea and the prosecutor's office under his leadership investigated crimes related to the events that took place on the peninsula in 2014 and later, he faced the absence of norms in our legislation that are in the criminal legislation of European countries.

As an example, he cited the situation with a Dutch company that was recently fined for its participation in the construction of the Crimean bridge.

The Prosecutor's Office of the Autonomous Republic of Crimea and the city of Sevastopol provided procedural guidance in this proceeding from 2017 to 2023. The pre-trial investigation revealed violations of the European Union sanctions imposed in connection with the occupation of Crimea and violations of Dutch criminal law. According to him, due to the absence of criminal liability in Ukraine for violation of EU sanctions, Ukrainian prosecutors were unable to prosecute this case, so in 2019 it was decided to send the relevant materials to the competent authorities of the Netherlands.

"We need to implement international law so that we can speak the same language as the civilised world. International criminal justice is not only about the International Criminal Court, as some people think. It obliges the entire civilised world to investigate crimes against humanity, war crimes and other international crimes," he continues, "That is, the law enforcement agencies of any country either do it themselves or can send the proceedings to us if it is a case of victims of crimes during the war. But imagine this situation. For example, in the Netherlands, they identify a Russian who may be involved in crimes against humanity. Ukraine asks for his extradition. And they say: "Wait, you don't have such a crime in your legislation. How can we give him to you?" The ratification of the Rome Statute gives us the opportunity to implement international criminal law and humanitarian law in our national legislation."

COMMANDERS WILL NOT BE ABLE TO AVOID RESPONSIBILITY?

Several years before the full-scale invasion, I wrote about a draft law that was intended to harmonise Ukrainian criminal law with international criminal and humanitarian law and to provide a proper legal qualification for crimes committed in the war zone and occupied territories. In fact, such a document was prepared by MPs in cooperation with human rights defenders and prosecutors who documented war crimes and human rights violations in Crimea and Donbas and who were the first to draw attention to the fact that the Criminal Code does not provide for liability for crimes against humanity and does not contain full war crimes.

This bill was co-authored by representatives of various parliamentary factions and groups, but it was never adopted. And now, along with the draft law on the ratification of the Rome Statute, the President has submitted another document amending the Criminal Code and the Criminal Procedure Code. In particular, it provides for the responsibility of commanders who knew that their subordinates were committing crimes but did nothing to stop them.

In addition, the draft law finally introduces criminal liability for crimes against humanity. It also contains a number of provisions aimed at bringing the provisions of the Criminal Code in line with the Rome Statute and ensuring criminal prosecution for the most serious international crimes (the crime of genocide, the crime of aggression, and war crimes).

When the issue of ratification of the Rome Statute was being discussed at various public platforms before the full-scale war, people who had been in the torture chambers of the militants in Donbas came to such events. They told their stories, and lawyers spoke about national and international law. We tried to make it clear through the prism of what these people had experienced. Because in general, the Criminal Code has Article 127 "Torture". But in order to incriminate it, it is necessary to prove a certain purpose for which the person was tortured. How can we determine the goal of the militants who used the most brutal torture on people in the basements of seized buildings simply because they enjoyed it? And can what was happening there be considered a single criminal offence? After all, such torture is systemic and widespread. That is why the norms of international law are so important. If we talk about torture as a crime against humanity, it does not imply any purpose. It will be easier for investigators to qualify such crimes, and for judges to determine the degree of responsibility for them. And what is also important is that these are crimes that have no statute of limitations.

Why didn't Ukraine ratify the Rome Statute earlier? It's hard to say. Over the past five years, when I have asked this question to politicians, I have mostly heard that there are concerns about possible problems for the military who fought in Donbas, and with the start of the full-scale war in various other regions of the country. Why this should scare people who do not commit international crimes, I do not know. But reading the comments of the military on social media in recent days, I see that they have even recalled the case of National Guard soldier Vitaliy Markiv, who was tried in Italy. Although it had nothing to do with the Rome Statute, there was a lot of talk about Russia's influence. Let me remind you that in July 2019, the court of first instance in Pavia sentenced the National Guard to 24 years in prison, accusing him of involvement in the murder of Italian photojournalist Andrea Rocchelli and his translator, Russian Andrei Mironov, during the fighting in Donetsk region in 2014. A year later, the Court of Appeal ruled to acquit Markiv for lack of corpus delicti and to release him immediately. The Supreme Court of Cassation confirmed this decision.

Now this case has been mentioned again. As well as the disinformation campaign launched by Russia when Ukraine submitted materials in the "Ukraine v. Russia" case to the ECHR.

According to Gunduz Mammadov, in order to confront Ukraine in international courts, Russia engages large law firms that practice public international law. "In the European Court of Human Rights, we have seen a flurry of spam from Russia. On the one hand, Russia has allegedly withdrawn from the European Convention for the Protection of Human Rights and Fundamental Freedoms and does not recognise the ECHR, and on the other hand, there are public figures and lawyers who have submitted materials alleging that the Ukrainian military has allegedly violated people's rights. We had to counteract this disinformation," he says.

Commenting on the military's concerns about possible actions by the International Criminal Court, he recalled that in 2014 Ukraine filed its first application for recognition of the jurisdiction of the International Criminal Court to investigate the events on Maidan, starting in November 2013. And in 2015, we filed a second application for recognition of jurisdiction to investigate the events in Crimea and Donbas. And after the start of the full-scale Russian aggression, an investigation into the situation in Ukraine was opened following an appeal from 42 ICC member states. "That is, starting from 2015, the International Criminal Court can prosecute the military and political leadership of Ukraine if it is a question of committing crimes such as genocide, war crimes or crimes against humanity," he said.

He also stressed that the ICC is currently focusing on crimes committed on the territory of Ukraine by Russians, and as a result, there are 6 international arrest warrants for high-ranking officials, including Putin. Nothing is known about any cases involving Ukrainians. In addition, the ICC is involved only when a country's national legal system is unable to reach a criminal.

According to Kateryna Busol, the International Criminal Court has jurisdiction over all people involved in alleged international crimes committed on the territory of Ukraine since Ukraine recognised the court's jurisdiction. "That is, potentially, and this has been clearly stated by the human rights community and lawyers, the International Criminal Court has jurisdiction over any person, regardless of citizenship. Ratification does not change anything in this sense," she says.

Gunduz Mammadov drew attention to another aspect that no one is talking about at the moment. It is about the possibility of bringing our military to justice by law enforcement agencies of other countries, regardless of whether they have ratified the Rome Statute or not. Because the applicant in such cases can be any person who left Ukraine during the war and decides to accuse someone from the Ukrainian military of committing a war crime. Of course, a military officer can only be brought to justice if a crime has actually been committed.

"Ukraine is acting correctly, conducting very detailed trainings for all military personnel on international humanitarian law, on the laws and customs of warfare. Everyone is now writing to Ukraine, as the de facto occupying power, to comply with all the rules of treatment of civilians in the Kursk region, to prevent sexual violence, because Russia can also instrumentalise this well and then launch a disinformation campaign," says Kateryna Busol.

Of course, no matter how much Ukraine adheres to international humanitarian law, Russian propagandists are still tirelessly generating fakes about our military. Especially now, during the operation in the Kursk region.

"What does the Rome Statute provide for and what new things are we introducing into our legislation? This is a kind of command responsibility. That is, the commander is responsible for the actions of his subordinates. And here we mean not only the commander who has 10 or 50 people under his command. "Roughly speaking, if a general knew that a soldier had shot a civilian or committed some other war crime, and he did nothing about it, that is, did not take all the necessary actions to bring the perpetrator to justice, then this general should be held responsible for such actions.

When asked how to prevent future manipulations by the Russian side, she notes that it is necessary to verify the facts that are circulated in the public sphere. "In our army, whenever something happens, an investigation is mandatory. And based on this, we can say that the actions of individuals have been checked, and the conclusion is that no violations have been committed, if they really did not occur. That is, we have to document on our part and document that everything was within the law, that there was no violation of the laws and customs of war," she continues. - "For example, there are now accusations from Russia that our soldiers, entering the Kursk region, allegedly shot civilian cars. It's very easy to establish which brigade was involved and where. Because everyone had their own combat mission. And the Russians name settlements when they say something like this. What can we do? Find out which brigade entered, then the commander conducts an internal inspection, interviews everyone, and establishes what happened. And whether the allegations are true. If they are true, a particular soldier is brought to justice. If it's not true, then they conduct a check and find out that it didn't happen."

She also noted that if we care about the reputation of our military, national courts should finally apply the rule on combat immunity, which was introduced into the Criminal Code during the war. "The provision on combat immunity was introduced into the legislation, but, unfortunately, it is not applied in any way. So far, the only courts that apply it are administrative courts. "There are several criminal proceedings where I am closely monitoring who is applying this and at what stage," Kusa says. "For example, there is already a verdict in a case where it is said that a person received a weapon from a military registration and enlistment office and then failed to hand it over in time. He was prosecuted for illegal possession of weapons. And the person explained that he had fought with this weapon in the territorial defence. That there was no intention to keep this weapon. Therefore, this military man asked to be released from liability due to his combat immunity. The court denied him, but sentenced him to a lesser penalty. What is my point? If we had combat immunity applied in the way it should be applied, any criminal offence could be checked as follows. Open criminal proceedings, check the actions of the person, including those of a commander, and if there are sufficient grounds, close the proceedings on the grounds of combat immunity. After that, if anyone applies to the ICC and claims that such and such a soldier who was subordinate to such and such a commander committed a crime, then bring both the soldier and the commander to justice. We submit our documents stating that we opened criminal proceedings, checked the actions of these individuals, but the case was closed due to combat immunity. However, it is worth noting that combat immunity is only applied when the laws and customs of war have not been violated. If Ukrainian soldiers do commit war crimes and violate the laws and customs of war, it is impossible to prevent them from being held criminally liable. They must be held accountable for such actions."

To reassure the military, Ukraine ratifies the Rome Statute with a declaration under Article 124, according to which the ICC will not have jurisdiction under Article 8 (war crimes) over Ukrainian nationals for 7 years. "Ukraine understands its obligation to investigate any reports of possible crimes committed, in particular, by our military. And it will carry out this justice at the national level. Because the Armed Forces of Ukraine abide by the laws and customs of warfare. And if there is some kind of excess, and one soldier robbed someone or committed an act of sexual violence against civilians, the Ukrainian prosecutor's office has jurisdiction over such a person, and Ukraine will carry out such an investigation itself. Because this is primarily about respect for human rights and the rule of law. And the fact that we can and want to ensure justice for all," says Kateryna Busol.

At the same time, analysing this statement in the article of the "Dzerkalo Tyzhnia" weekly, Gunduz Mamedov and his co-author, Nadiya Volkova, Director of the Ukrainian Legal Advisory Group, note: "Firstly, it is worth taking a closer look at the wording. Since the article refers not only to citizenship but also to the territories where the crimes were committed, we should be sure that instead of solving one problem, we will not create many new ones. Can a country "choose" the scope of application of the article? And, accordingly, will the ICC then be able to investigate war crimes committed on the territory of Ukraine? There is currently no clear answer to this question. However, a number of comments by international justice experts that appeared after the introduction of the draft law demonstrate that this answer is at least ambiguous. Ultimately, all these concerns boil down to one thing: the risk of depriving victims of war crimes of a chance for justice. After all, the war is still ongoing, and numerous crimes are committed every day. Article 124 may not only hinder justice processes, but also contribute to the spread of impunity. If the ICC is unable to investigate war crimes on the territory of Ukraine, we are essentially 'inviting' the Russians to commit them. This is a key challenge."

In addition to these questions already voiced over the past few days, there are others. One of them is what to do with Article 58 of the Constitution of Ukraine, which provides that no law has retroactive effect.

"If you look at the draft law on amendments to the Criminal Code and the Criminal Procedure Code, you will see that there is very little new there," Anton Korynevych explains, answering this question. - "That is, Article 438 of the Criminal Code remains in the same wording, only its name changes to war crimes. The same applies to the crime of genocide. The article is brought into line with the Rome Statute, in particular with regard to the infliction of mental suffering. But the essence remains the same. And the crime of aggression. It only increases the sentence. And this is important because the current Criminal Code has a low penalty. In fact, one new category is being introduced - crimes against humanity. But this will not violate the irreversibility of the law in time, because the Ukrainian legal system knows the category of crimes against humanity. Ukraine has ratified two conventions. The UN and Council of Europe Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes. Ukraine has also recognised the jurisdiction of the International Criminal Court, in particular over alleged crimes against humanity. This is not creating something from scratch, but simply specifying in the Criminal Code what the Ukrainian legal system has known for a long time. Therefore, in my opinion, the changes as they are now written in the implementation draft law give us the opportunity to say that the issue of the irreversibility of the law in time should not be raised here."

Today, MPs will decide whether they are ready to support these two documents. We can only hope that they will make this decision in a balanced manner.

Tetiana Bodnia, "Censor. NET"