Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 73
Julio
Diciembre
2022
Recibido el 02/05/2022 Aceptado el 15/06/2022
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 73 (2022), 311-329
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Investigation and justice
of crimes committed under war
conditions in Ukraine
DOI: https://doi.org/10.46398/cuestpol.4073.16
Nataliya Ortynska *
Volodymyr Baranyak **
Inna Tsyliuryk ***
Yana Koniushenko ****
Ihor Krasiuk *****
Abstract
The purpose of the article is to review the topic of investigation
and administration of justice in relation to crimes committed
during the war in Ukraine, as one of the important elements
of transitional justice. The authors focus on the possibility of
applying the concept of post-conict solution in Ukraine after
the end of hostilities provoked by armed aggression. The article draws
attention to the fact that in order to counter these crimes it must be
necessary: to develop eective mechanisms and establish communication
within universal jurisdiction with other countries that have experience in
investigating Russian military aggressions; extensive use of the capabilities
of the International Commission on Human Rights established by the
UN Human Rights Council to investigate war crimes committed by the
aggressor’s armed forces and violations of international humanitarian law,
the prepared evidence of which can be used in all international and national
*Doctor of Law, Associate Professor, Professor of the Department Theories of law and constitutionalism
of the Educational and Scientic Institute of Law, Psychology and Innovative Education, Lviv
Polytechnic National University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-5061-5340
** Candidate of Chemical Sciences, Associate Professor, Associate Professor at the Department of Criminal
Law and Procedure of the Educational and Scientic Institute of Law, Psychology and Innovative
Education, Lviv Polytechnic National University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-
0001-6161-7862
*** Candidate of Law, Associate Professor, Associate Professor at the Department of Criminal Law and
Procedure of the Educational and Scientic Institute of Law, Psychology and Innovative Education,
Lviv Polytechnic National University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-4776-
2278
**** Candidate of legal science, Associate Professor, Associate Professor at the Department of Criminal
Process, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0003-4988-0793
***** Deputy Head of the Department of Handwriting Research at the Laboratory of Forensic Research Kyiv
Scientic Research Institute of Forensic Expertise at the Ministry of Justice of Ukraine; Applicant of
the Department of Criminal Procedure and Criminalistics of the University of the State Fiscal Service of
Ukraine, Irpin, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0001-7099-2509
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Nataliya Ortynska, Volodymyr Baranyak, Inna Tsyliuryk, Yana Koniushenko y Ihor Krasiuk
Investigation and justice of crimes committed under war conditions in Ukraine
jurisdictions. It is concluded that it is urgent to borrow positive international
experience in the standardization of current national legislation, aimed
at optimizing the process of documentation and investigation of crimes
against humanity, bringing the perpetrators to justice.
Keywords: war crimes; Rome Statute; International Criminal Court;
ratication; Transitional justice.
Investigación y justicia de crímenes cometidos en
condiciones de guerra en Ucrania
Resumen
El propósito del artículo es revisar el tema de la investigación y
administración de justicia en relación con los crímenes cometidos durante
la guerra en Ucrania, como uno de los elementos importantes de la justicia
transicional. Los autores se centran en la posibilidad de aplicar el concepto
de solución posconicto en Ucrania tras el n de las hostilidades provocadas
por la agresión armada. El artículo llama la atención sobre el hecho de
que para contrarrestar estos crímenes debe ser necesario: desarrollar
mecanismos efectivos y establecer comunicación dentro de la jurisdicción
universal con otros países que tienen experiencia en la investigación
de agresiones militares rusas; uso extensivo de las capacidades de la
Comisión Internacional de Derechos Humanos establecida por el Consejo
de Derechos Humanos de la ONU para investigar crímenes de guerra
cometidos por las fuerzas armadas del agresor y violaciones del derecho
internacional humanitario, cuya evidencia preparada puede usarse en
todas las jurisdicciones internacionales y nacionales. Se concluye que urge
tomar prestada la experiencia internacional positiva en la estandarización
de la legislación nacional vigente, destinada a optimizar el proceso de
documentación e investigación de crímenes de lesa humanidad, llevando a
los perpetradores ante la justicia.
Palabras clave: crímenes de guerra; Estatuto de Roma; Corte Penal
Internacional; raticación; Justicia transicional.
Introduction
Full-scale military operations on the territory of Ukraine and the related
temporary occupation of its separate territories by the Russian Federation
(hereinafter – the Russian Federation) have challenged not only the national
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security of the Ukrainian state, but also the ability to eectively protect and
restore human rights and fundamental freedoms in terms of overcoming
the consequences of the armed conict. Such illegal actions have killed and
injured many civilians, and forced more than 10 million Ukrainians from
illegal military incursions and temporarily occupied territories to ee their
homes, leading to inuxes of internally displaced persons.
By their nature, crimes committed during the war are one of the most
serious and serious crimes known to mankind. In accordance with the
norms of international law, the state on the territory of which war crimes are
committed is the most active in investigating and bringing the perpetrators
to justice (Nazarchuk, 2020). In such circumstances, Ukraine must not
only respond adequately to hostilities in its own and temporarily occupied
territories, but also ensure that criminal acts are properly investigated and
the perpetrators brought to justice. After all, «the duty of any state is to
protect its citizens, in whatever situation and in what territory they nd
themselves» (Investigation of war crimes).
Each category of war crime has its own problems and obstacles. At
the same time, there are general problems of pre-trial investigation
and administration of justice, which, in our opinion, are inherent in all
categories of crimes and which indicate that the poor quality of pre-trial
investigation and criminal justice is a consequence not only of war but also
inability of criminal justice bodies to act eectively. This situation, in turn,
creates serious risks of ineective investigation, prosecution, violation of
the rights and legitimate interests of participants in criminal proceedings.
1. Methodology of the study
The peculiarity of the applied methodology is determined by the main
tasks of studying the peculiarities of the investigation of crimes in wartime
in the international and national aspects. Solving them involves studying
not only the implementation at the constitutional and legal levels and at the
level of criminal procedural mechanisms, but also a number of other related
legal phenomena. That is why the variety of approaches, methods and
means of knowledge to ensure the process of documenting, investigating
and prosecuting war criminals is a necessary condition for successful
analysis of this phenomenon.
The philosophical and methodological basis of the research is formed
on the basis of dialectical, hermeneutic and comparative approaches
to the knowledge of legal phenomena. They led to the use of a set of
philosophical, general and special research methods. Among the general
scientic methods used, rst of all, analysis, synthesis, deduction, systemic,
historical, comparative, structural-functional, classication, generalization,
prognostic and other methods.
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Investigation and justice of crimes committed under war conditions in Ukraine
In the process of scientic research special legal methods were also
used: comparative legal, formal-legal method, interpretation, study of legal
practice, method of document analysis, etc. The specicity of the subject of
research has led to a combination of certain methodological approaches and
principles characteristic of the science of criminal procedure, international,
constitutional and criminal law.
2. Analysis of recent research
War crimes directly related to international criminal law are particularly
dangerous to humanity and undermine the international security and
law enforcement system. Many years of eorts by the international
community have yielded fruitful results, which are reected in the
formation of international legal norms that establish the grounds and
conditions of responsibility for crimes against peace, security of mankind
and international law and order. With the signing of the Rome Statute in
1998, on July 1, 2002, the International Criminal Justice Authority, which
is responsible for prosecuting those responsible for genocide, war crimes,
crimes against humanity and aggression, has been ocially operational on
a permanent basis.
To date, Ukraine has also taken some steps at the national level, and
the development of Ukrainian law enforcement agencies to document
and investigate crimes of military aggression, make numerous changes to
criminal and criminal procedure legislation, indicates a desire to optimize
investigations into this category of crimes. persons of the aggressor’s
country.
The work of many domestic and foreign scholars and practitioners
is devoted to the research of certain issues of the organization of the
investigation of crimes committed during the war, the implementation of
the provisions of international law at the constitutional, legal and criminal
procedural levels. At the same time, the issue of introducing systematic
and eective documentation and investigation of war crimes is becoming
especially important in the martial law in Ukraine, as one of the measures
to overcome their consequences and an important element of transitional
justice.
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3. Results and discussion
3.1. National mechanisms for investigating crimes committed
during the war in Ukraine
Russia’s aggressive war against Ukraine is one of the most obvious
violations of Article 2 (4) of the Charter of the United Nations since its entry
into force. In addition to the legal consequences for the responsibility of
the Russian Federation as a state, these events again aroused interest in
individual responsibility for the crime of aggression. One of the steps of
Ukraine’s adequate response to such the most horric and daring criminal
oenses was to amend the legislation in order to optimize the investigation
and bring the perpetrators to justice.
Bills have recently entered into force in Ukraine, which will regulate some
procedural issues in the work of courts and law enforcement agencies under
martial law. In particular, draft laws № 7117 (on amendments to the Law
of Ukraine “On Judiciary and Status of Judges” to change the jurisdiction
of courts) and № 7118 (on amendments to the Criminal Procedure Code of
Ukraine and other legislative acts of Ukraine on additional regulation of law
enforcement in complex martial law) (Law Of Ukraine «On Amendments
To The Criminal Procedure Code Of Ukraine And Other Legislative Acts Of
Ukraine On Additional Regulation Of Law Enforcement In Dicult Martial
Law»; Law Of Ukraine «On Amendments To The Law Of Ukraine «On
The Judiciary And The Status Of Judges On Changing The Jurisdiction Of
Courts», 2022).
Consider in more detail the changes made to the Criminal Procedure
Code of Ukraine.
In case of impossibility to enter information on criminal oense into
the Unied State Register of Pre-trial Investigations and, accordingly,
impossibility to form an extract from this Register, information on
registration of criminal oense and commencement of pre-trial investigation
may be conrmed by a reasoned decision of pre-trial investigation body.
information specied in Art. 214 of the Criminal Procedure Code of
Ukraine. Such a document may be considered a proper conrmation of the
commencement of the pre-trial investigation and a basis for consideration
of the requests of the pre-trial investigation body (Criminal Procedure Code
Of Ukraine, 2012).
According to the rst part of Art. 615 of the Criminal Procedure Code
of Ukraine in the area (administrative territory), where the legal regime
of martial law, state of emergency, anti-terrorist operation or measures to
ensure national security and defense, repel and deter armed aggression in
Donetsk and Lugansk regions, in case of impossibility by law the terms of
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Nataliya Ortynska, Volodymyr Baranyak, Inna Tsyliuryk, Yana Koniushenko y Ihor Krasiuk
Investigation and justice of crimes committed under war conditions in Ukraine
the investigating judge of the powers provided by Art. 163, 164, 234, 235,
247 and 248 of the Criminal Procedure Code of Ukraine, as well as the
power to choose a measure of restraint in the form of detention for up to 30
days to persons suspected of committing crimes under Art. Art. 109–114-1,
258–258-5, 260–263-1, 294, 348, 349, 377–379, 437–444 of the Criminal
Code of Ukraine, these powers are exercised by the relevant prosecutor.
In this case, such a prosecutor is both the prosecutor who exercises
the powers of the prosecutor in a particular criminal proceeding, and his
leaders. Relevant decisions may be made by the prosecutor in the event that
criminal proceedings are instituted against a set of crimes committed by
the suspect, at least one of which is a crime under Art. 615 of the Criminal
Procedure Code of Ukraine. In other cases, namely in the absence of grounds
for the exercise of these powers by the prosecutor, he may apply to the court
at the place of investigative (investigative) actions.
Also in the case of criminal proceedings against articles of the Criminal
Code of Ukraine, not included in the list provided for in Art. 625 of the
Criminal Procedure Code of Ukraine, the prosecutor should change the
territorial jurisdiction of the criminal proceedings and transfer it to another
district, the region where the court operates (The supreme court has
prepared recommendations for criminal proceedings in wartime, 2022; the
supreme court stressed the need for urgent legislative changes to ensure the
continued administration of justice in wartime, 2022).
The analysis of these norms shows that this version of the law in some way
levels the role of defense counsel at all stages of the pre-trial investigation
by giving the investigator and prosecutor the opportunity not to involve
the latter or involve through audio and video conferences. However, as
M. Dyomin rightly points out, the defense attorney will be deprived of the
eective performance of his duties without being at the scene and at the
scene of the investigation, and therefore there is a real threat of human
rights violations by the investigating authorities (Dyomin, 2020).
Such conclusions are prompted by the monitoring of paragraph 1 of part
12 of Article 615 of the Criminal Procedure Code of Ukraine, which provides
that the investigator, prosecutor ensures the participation of defense
counsel in a separate procedural action as soon as possible, including if
necessary - using technical means (video, audio language) to ensure the
remote participation of the defender. In case of impossibility to involve
a defense counsel for a separate procedural action, such action is carried
out without his participation, and its course and results must be recorded
by available technical means by continuous video recording (Criminal
Procedure Code Of Ukraine, 2012).
It is seen that allowing an investigator or prosecutor to determine a
lawyer at his or her own discretion would potentially lead to a number
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of violations of human and civil rights and freedoms during criminal
proceedings. The «impossibility» of the defense counsel’s participation will
be determined by the investigator and the prosecutor in the absence of any
criteria for making such a decision, which creates additional conditions for
the prosecution to abuse its procedural powers (Dyomin, 2022).
In addition, in our opinion, the involvement of a lawyer in video or audio
communication will lead to the actual impossibility of his duties, because,
for example, without a physical presence at the scene or at the scene of
the search can not fully and objectively collect all available evidence. Such
restrictions on the rights of the defense also violate the requirements of
Article 63 § 2 of the Constitution of Ukraine, according to which a suspect,
accused or defendant has the right to defense. After all, the rights and
freedoms of this article cannot be restricted, including in conditions of
martial law or state of emergency (part 2 of article 64 of the Constitution of
Ukraine) (Constitution Of Ukraine, 1996).
The updated criminal procedural legislation of Ukraine has certain
peculiarities in terms of regulating the procedure for consideration of
motions for the election of a measure of restraint under martial law. Thus,
all motions submitted to investigating judges should be considered within
the time limits established by the Criminal Procedure Code of Ukraine, but
if possible - immediately. If it is impossible for a judge (panel of judges)
to consider a request for election or continuation of a preventive measure
in the form of detention within a specied period, it may be transferred to
another judge, determined in accordance with part three of Art. 35 of the
Criminal Procedure Code of Ukraine, or considered by the presiding judge,
and in his absence - by another judge of the panel of judges, if the case is
considered collectively.
If due to objective circumstances a participant in criminal proceedings
cannot participate in a meeting by videoconference using technical means
specied by the Criminal Procedure Code of Ukraine, as an exception
such participant may be allowed to participate in videoconferencing by
other means, attention should be paid to explaining to such a participant
his procedural rights and responsibilities. Also, given the objective
circumstances, as an exception, it is possible to allow requests for
precautionary measures to be considered without the participation of
the suspect, with due motivation for such a review procedure (Criminal
Procedure Code Of Ukraine, 2012).
If the territorial jurisdiction of criminal oenses at the stage of pre-trial
investigation is changed and the materials of criminal proceedings due to
hostilities have not been transferred or transferred in full, assessing the
risks that justify the application of precautionary measures in general and
detention in particular, the investigating judge ) is guided by all available
materials of the petition for application (continuation) of the precautionary
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Investigation and justice of crimes committed under war conditions in Ukraine
measure. At the same time, the courts must take into account the imposition
of martial law and armed aggression in Ukraine (The supreme court has
prepared recommendations for criminal proceedings in wartime, 2022).
It should be noted that in martial law the head of the prosecutor’s oce
has the right to use the powers of an investigating judge under Articles 186,
187, 190, 206, 219, 232, 246, 250 of the Criminal Procedure Code of Ukraine,
in the absence of objective possibility of their execution by an investigating
judge. As the Criminal Procedure Code does not disclose the meaning of
“lack of objective possibility” in the exercise of powers by an investigating
judge, the prosecutor will interpret it at his / her own and unrestricted
discretion. In this aspect, there is a high probability of interpretation of
the concept introduced in the Criminal Procedure Code of Ukraine in their
own interests in order to obtain the powers of an investigating judge, which
in itself eliminates the role of judicial control in criminal proceedings
and violates human and civil rights and freedoms. Therefore, scholars
and practitioners rightly point out that in this case it would be logical to
construct this rule that such an impossibility for an investigating judge to
exercise his powers should be conrmed by an ocial announcement on
the court’s web portal (attached to criminal proceedings) and the Supreme
Court’s failure to a court that will administer justice in a certain territory
(Dyomin, 2022).
There are fears that all the «simplications» mentioned in the Criminal
Procedure Code, which are due to the complexity of the investigation of
crimes in hostilities and the severity of such crimes (for example, against
peace and security of mankind), may be actively used by individual
ocials in their own interests. «Standard» crimes against property and
other criminal oenses, only indirectly related to hostilities. Under such
conditions, it would be logical and expedient to introduce simplied pre-
trial investigation procedures for certain categories of crimes against
humanity, as dened in Article 7 of the Rome Statute and provided for in
separate articles of the Criminal Code of Ukraine.
Of course, the changes we have made to the Criminal Procedure Code
do not solve all the problems that arise in wartime, such as the timing of
investigations, trials, simplication of evidence collection, and so on. We
believe that the prospects for such changes to the Criminal Procedure Code
require a separate scientic study.
3.2. Organizational aspects of the application of customary
international law in the investigation of war crimes
In order to develop appropriate recommendations for optimizing the
investigation of war crimes in Ukraine, we identify common problems in
this direction: lack of capacity – material and human resources is the most
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obvious objective reason for the ineectiveness of the investigation; general
problems of the criminal justice system; lack of experience in war conditions
(intensity, number of victims, characteristics of the network of performers,
etc.); qualication of torture and other shortcomings of national law.
The organization and methods of investigation, the collection of evidence
of war crimes committed by the parties to the armed conict, are directly
aected by the following destructive factors: rapid change in the operational
situation; frequent redeployment of military units and subdivisions; death,
wounding and captivity of witnesses, victims, suspects in the course
of hostilities; change in the situation as a result of bombing, artillery or
mortar re, capture by the enemy; a large number of cases investigated
in a limited time; bringing to justice the parties to the armed conict; a
signicant time interval from the moment of mass murder to the beginning
of the study of mass burial sites, which prevents their identication due to
the decomposition of corpses; problems with the formation of the evidence
base, as the shootings took place in places that precluded the presence of
unwanted witnesses; selective provision of various military information to
the criminal justice authorities, ie documents, objects, photographs from
drones, decoded recordings of interceptions of radio conversations, etc.
about events that could become or were the subject of investigations.
Politicization of the investigation process and the investigation of the
border line between national sovereignty and international responsibility,
in the area between the legal and political spheres; the nature of the local
population’s perception of the investigation of war crimes at the national
level and the administration of justice within the state for war crimes
against persons of the opposite side; illegal comparisons with the actions of
the other party and the use of the «shed blood» factor as a «right to commit
illegal acts against the enemy» to evade criminal liability for war crimes for
unfounded accusations of «cowardice» by investigative bodies not directly
involved in hostilities ; unwillingness of the parties to the armed conict
to comply with the legal requirements of the judiciary and a number of
international legal provisions; problems of ensuring the testimony of high-
ranking foreigners.
Unwillingness of the parties to the armed conict to comply with the
legal requirements of the judiciary and a number of international legal
provisions; attempts to stage «committing» war crimes by the enemy;
opposition to the investigation; the possibility of armed resistance during
detention by the suspect or his colleagues; the problem of slow investigation
of crimes of this category, which may exceed all reasonable terms and long
periods of detention (Rome Statute Of The International Criminal Court,
1998; Batyuk and Dmitriv, 2021).
In organizing the collection of evidence of war crimes committed by
representatives of the military-political leadership of the states, the main
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Nataliya Ortynska, Volodymyr Baranyak, Inna Tsyliuryk, Yana Koniushenko y Ihor Krasiuk
Investigation and justice of crimes committed under war conditions in Ukraine
eorts should be aimed at gathering sucient evidence that provides
grounds for accusing those who are most responsible and hold senior
political and military positions. Of course, in order to prove their guilt, it
is necessary to establish the connection of public policy makers with a set
of crimes committed in dierent areas of armed conict, to prove that they
or under their direct leadership developed and implemented a strategic
criminal plan, ie to adopt doctrine «Common purpose», when several
criminals act together to achieve the goal (Batyuk and Dmitriv, 2021).
At the national level, members of the investigative task force directly
interact with each other, agree on the main directions of pre-trial
investigation, conduct procedural actions, exchange information. The
General Prosecutor’s Oce of Ukraine (Instruction On The Organization
Of Interaction Of Pre-Trial Investigation Bodies With Other Bodies And
Subdivisions Of The National Police Of Ukraine In Prevention Of Criminal
Oenses, Their Detection And Investigation, 2017) coordinates their
activities on the territory of Ukraine as the initiator of the creation of a joint
investigation team. Also, in addition to representatives of law enforcement
agencies of the member states of the organization, which are members
of joint investigation teams, within the European Union provides for the
possibility of involving employees of Europol and Eurojust (Shostko and
Ovcharenko, 2008).
The UN General Assembly and the UN Human Rights Council have
established mechanisms for certain situations to collect and preserve
evidence (Krapivin, 2022).
In particular, in early March 2022, the UN General Assembly adopted
a resolution condemning Russia’s invasion of Ukraine and calling for the
immediate withdrawal of its troops (UN Human Rights Council considers).
The UN has also announced the composition of a commission to investigate
war crimes in Ukraine. The commission will include three independent
members from Norway, Bosnia and Herzegovina and Colombia, who will
give an oral presentation on their work at the 51-st session of the UN Human
Rights Council in September 2022. A full written report is due in March
2023. In addition, members of the commission will make a report at the
77-th session of the UN General Assembly, which will be held in September
(Kalatur, 2020).
On March 4, 2022, the UN Human Rights Council established an
international commission to investigate war crimes committed by Russian
servicemen and violations of international humanitarian law. These
mechanisms usually involve experienced international investigators and
prosecutors. They can collect, store and systematize evidence at a high level.
Thus, experienced prosecutors have already begun collecting evidence of
Russian war crimes for further use in various prosecution mechanisms.
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On March 25, 2022, the Prosecutors General of Ukraine, Poland and
Lithuania signed an Agreement on the establishment of a joint investigation
team to investigate the aggression of the Russian Federation and its war
crimes on the territory of Ukraine. The activities of such an international
investigative task force will focus on the collection, safe storage and
rapid exchange of information and evidence of war crimes of the Russian
Federation, collected during investigations in the territory of the States
Parties, as well as operational and investigative activities. In addition, it will
identify the assets of war criminals in order to freeze and conscate them
(Ukraine, Lithuania and Poland…2022).
Given the limited time, lack of opportunities and resources to organize
a simultaneous investigation of a large number of criminal proceedings
related to the commission of war crimes in various areas of armed conict,
the task of each international investigative task force should be rapid and
high-quality investigative and collecting the maximum amount of physical
evidence. At the same time, prosecutors of the international investigative task
force should coordinate the investigation of various criminal proceedings,
ensure eective exchange of information, promptly and competently report
suspicions to the main organizers of war crimes.
3.3. Using the capabilities of the International Criminal Court
and the European Court of Human Rights in the context of
military aggression in Ukraine
The International Criminal Court (also known as the Hague Tribunal) is
an international tribunal established in 1998 to investigate and prosecute
those accused of genocide, war crimes and crimes against humanity. It is
an institution that is complementary to national jurisdictions, to national
criminal justice systems. There is no general principle in international law
that protects a person from conviction in dierent jurisdictions. Even under
international human rights law, if a person has been prosecuted for certain
acts in one state, he or she may be prosecuted for the same acts in another
state, if that state has jurisdiction to do so.
In other words, if we have a person who has been convicted or even
acquitted of an act of international crime by a court in the self-proclaimed
republics, this decision is not an obstacle for the International Criminal
Court to try the case and bring that person to justice. international crime
(War and justice: how to eectively use osint and what to do with court
decisions in uncontrolled territories, 2021).
It should be noted, however, that the ICC opens proceedings only when
the state is unwilling or unable to initiate criminal proceedings and conduct
an appropriate investigation. If the international court still opens the
main proceedings, the prosecutor of the court independently investigates
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crimes, ie collects and examines evidence, conducts examinations, invites
witnesses. The International Criminal Court may prosecute those who have
committed the most serious violations of human rights and humanitarian
law in the territory of a State or against a citizen of that State.
The important point is that the Hague Tribunal focuses not so much on
the perpetrators of crimes as on those who give orders or by their inaction
make it possible to commit these crimes (Investigation of war crimes: what
the international criminal court can help).
The ICC is about individual responsibility, not state responsibility. At
the same time, the principle of complementarity applies, ie the ICC does
not replace national protection mechanisms, but takes into account only
those war criminals who cannot be reached by the national legal system.
The ICC may prosecute suspects, but has no authority to make arrests. The
court relies on states that have law enforcement agencies to do so. If the
perpetrators remain in power, they cannot be arrested. But the accusations
limit the ability of these leaders to travel and send a signal to their country
that it will remain isolated as long as they remain in power.
Ukraine in 2000, it signed the Rome Statute, the document on the
basis of which the ICC operates. After the annexation of Crimea and the
occupation of Donbass, Ukraine adopted a Resolution of the Verkhovna Rada
recognizing the jurisdiction of the ICC, and later amended the Constitution
to ratify the Rome Statute (blocked in 2001 by the Constitutional Court
of Ukraine). These changes came into force in 2019, and two years later
Ukraine adopted amendments to the Criminal Code of Ukraine in terms of
war crimes required for ratication of the Rome Statute (the law is expected
to be signed by the President in June 2021). Thus, one step remains to fully
address Russia’s crimes – to ratify the Rome Statute. At the same time,
the jurisdiction recognized in 2014-2015 allows the IСС to collect evidence
today (Krapivin, 2022).
Thus, the harmonization of the Criminal Code of Ukraine should be
an important step towards the ratication of the Rome Statute – so that
the International Criminal Court can fully investigate and prosecute the
military-political leadership of Russia.
March 16, 2022 the session of the UN International Court of Justice
took place in The Hague, at which a decision was announced on the request
to impose interim measures in the case of Ukraine v. Russia on genocide.
According to the court’s decision, Russia must immediately suspend all
hostilities in Ukraine and stop any military or irregular armed groups under
its control or inuence. The court also ruled that both sides should refrain
from any action that could aggravate or prolong the dispute and complicate
further proceedings (Ten European Countries Lead).
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As of the end of March 2022, 42 countries have already appealed to the
International Criminal Court due to Russian war crimes in Ukraine. If the
court rules against Russia, those involved in these crimes can be detained
in any country that recognizes the jurisdiction of this court (Bega, 2022).
Therefore, the occupiers can be detained in any country that recognizes the
jurisdiction of the ICC. All those who have committed war crimes against
civilians are already potentially under arrest.
In connection with the military aggression of the Russian Federation,
on February 28, 2022, Ukraine submitted a request for urgent interim
measures in accordance with Rule 39 of the Rules of Procedure of the
European Court of Human Rights (hereinafter – ECtHR). Such requests
are usually made in the event of a threat to human life and health, such as
failure to provide medical care to a prisoner, which may have irreparable
consequences. In the case of Ukraine, it is the shelling and killing of civilians
(Krapivin, 2022). It is important that Russia is a member of the Council of
Europe and recognizes the jurisdiction of the European Court of Human
Rights over itself, so this mechanism is fully applicable in this case.
In accordance with the principle of universal jurisdiction, national
crimes committed by foreign nationals in foreign territory may be
prosecuted within national justice systems. It is also important to note
that some countries – Germany, Sweden, Finland – have jurisdiction over
all international crimes committed in Ukraine. These are international
investigative teams, ie bringing together investigators from dierent
national legal systems to bring perpetrators to justice. Such a mechanism
allows to bring to justice not only the military-political leadership of the
state, but also a serviceman of any rank who has committed war crimes
against the civilian population of Ukraine in any part of the world under the
jurisdiction of the special investigation team. mechanism of prescriptions
(cards) of Interpol) (Krapivin, 2022).
Among the prisoners of war are those who committed war crimes and
who can be prosecuted in Ukraine, ie not extradited in any way, given the
principle of extraterritoriality of criminal law (Article 6 of the Criminal Code
of Ukraine). The same applies to members of sabotage and intelligence
groups, some of whom are citizens of the Russian Federation, and who
are accused of encroaching on the territorial integrity and inviolability of
Ukraine (Article 110 of the Criminal Code of Ukraine) and sabotage (Article
113 of the Criminal Code of Ukraine). After the end of the war, they can
be held accountable under Ukrainian law and serve their sentences in our
country.
At present, we can state an unexpectedly quick response from
international institutions in connection with the scale of the aggression,
so we can say that Ukraine has mobilized (enforced) extremely clumsy
mechanisms of international law. From the point of view of the “Hague law”
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and the “Geneva law”, which form international humanitarian law, we speak
of individual responsibility for 1) war crimes; 2) crimes against humanity
and the responsibility of the state and its military-political leadership for 3)
genocide; 4) the crime of [military] aggression (Krapivin, 2022).
All these crimes are recorded in a number of treaties, and an institute for
dispute resolution (courts) of various jurisdictions has been established to
nd justice if committed. Depending on the type of agreement signed and
ratied by Ukraine and the aggressor state, opportunities should be actively
used to appeal to various international institutions in order to bring the
perpetrators to justice.
3.4. Prospects for the implementation of transitional justice
In the context of the researched issues, the prospects of applying the
concept of post-conict settlement in Ukraine after the end of hostilities
caused by the armed aggression of the Russian Federation need to be
claried.
Transitional justice (transitional justice) is a set of principles, processes,
measures, practices aimed at restoring justice to victims of large-scale or
systematic human rights violations, creating conditions and opportunities
for peacebuilding in the post-conict period or in transforming political
systems into authoritarian ones. states). In general, the concept of
«transitional justice» (or «transitional justice») is a framework name for
the various processes, formats, and mechanisms used in more than 40
post-conict countries and regions.
Transitional justice is associated with both judicial and non-judicial
processes and mechanisms, such as: establishing the truth; prosecution
and prevention of impunity; reparation; institutional reforms. At the same
time, it is extremely important to introduce all four identied elements in
the complex in order to achieve justice and build a harmonious path from
a state of war to a state of peace. Transitional justice should be aimed at
comprehensively addressing the causes of conict and related violations of
civil, political, economic, cultural and other rights.
Each country that has survived an armed conict develops its own
model of transitional justice, taking into account the political situation, the
peculiarities of legal practice, the national mentality. In Resolution 12/11,
the UN Human Rights Council emphasizes that «the development of a
transitional justice strategy must take into account the specic circumstances
of each situation in order to prevent recurrence of future crises and human
rights violations and ensure social cohesion, state-building».
However, analyzing the numerous documents and decisions in the
structure of UN bodies, it can be concluded that any national approach
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should take into account the presence of mandatory measures such as
combating impunity, developing national capacity to prosecute perpetrators
of gross human rights violations and serious violations of international
humanitarian law, fulllment of obligations regarding fair trials.
Transitional justice approaches make it mandatory to document,
investigate and prosecute perpetrators of war crimes, crimes against
humanity and gross human rights violations. In today’s language, when
criminal acts of another aggressor’s country are taking place in modern
Ukraine, it is extremely important to take measures to overcome the
consequences of the war, including full documentation, investigation and
prosecution of those responsible for the most serious crimes.
Among the key tasks facing the state and the national legal system in
this direction, scholars include: legislative regulation of procedural issues
related to special criminal proceedings (in the absence of a person in
absentia) in this category of cases; harmonization of national legislation
and law enforcement practice in the eld of criminal justice to the norms
of international criminal and international humanitarian law; determining
the mechanism of investigation of crimes against humanity, war crimes, as
well as their further trial (Konopelsky and Sviridova, 2020). It is obvious
that the relevant work should be carried out in two directions: international
and national.
Conclusions
Having conducted a scientic study of the organization of documentation,
investigation of war crimes committed during the war in Ukraine, it is
necessary to draw the following conclusions.
The introduction of systematic and eective documentation and
investigation of crimes committed during the war in Ukraine is one of
the key elements of transitional justice, the eective implementation of
which is necessary to comprehensively overcome the armed aggression
of the Russian Federation. The formation of an eective national justice
system in this direction should be based on legislation and law enforcement
practice that meets international standards in the eld of human rights and
legitimate interests.
The highest form of cooperation between the competent authorities in
the investigation of war crimes, which are often transnational in nature,
should be the introduction of interdepartmental investigative task forces,
the number and personnel of which should be determined by the complexity
of the crime, the number of episodes, the location of crimes crimes, the
number of persons involved in the crime, the need to identify and search
them, the amount of evidence and indicative information, etc.
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Eective in counteracting crimes committed in the context of military
aggression on the territory of Ukraine should be: developing eective
mechanisms and establishing communication within universal jurisdiction
with other countries that have experience in investigating military
aggression by the Russian Federation; extensive use of the capabilities
of the International Commission on Human Rights established by the
UN Human Rights Council to investigate war crimes committed by the
aggressor’s military and violations of international humanitarian law,
evidence prepared by which can be used in all international and national
jurisdictions; borrowing positive international experience in standardizing
current national legislation aimed at optimizing the process of documenting
and investigating crimes, bringing perpetrators to justice.
In order to prevent the commission of crimes against humanity and war
crimes on the territory of Ukraine, as well as to promote the development
of an eective national criminal justice system, the Rome Statute of the
International Criminal Court needs immediate ratication. At the same
time, using the capabilities of the International Criminal Court and the
relevant mechanism will bring to justice not only the military-political
leadership of the state, but also a serviceman of any rank who committed
war crimes against civilians in Ukraine, in the territory of investigative
team.
The application of the provisions of the Criminal and Criminal Procedure
Code of Ukraine requires focusing on the practice of international criminal
courts, doctrine, authoritative comments on international humanitarian
law and the provisions of international treaties. At the same time, the list of
acts that can be considered violations of the laws and customs of war does
not necessarily have to coincide with the list of Art. 8 of the Rome Statute,
or a list of serious violations of international humanitarian law under the
Geneva Convention or the First Additional Protocol. It can be expanded,
but not arbitrarily, but in accordance with international practice.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 73
