Are You a Leader? Ukraine’s Supreme Court Clarifies the Definition of the Crime of Aggression

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Article 437 of the Ukrainian Criminal Code outlaws planning, preparation or initiation of an aggressive war or an armed conflict, conspiring for any such purpose or waging of an aggressive war or aggressive hostilities. Yet, the domestic legislation is silent on the existence of a leadership requirement. On 28 February 2024, the Grand Chamber of the Supreme Court (hereinafter, the GCSC) offered a long-awaited clarification of this conundrum. My blog post provides an overview of the facts and procedural history germane to the crime of aggression charges, as well as a brief analysis of judicial reasoning.

Names

All names were redacted from the domestic jurisprudence. This information can, however, be deduced from other sources (here, here, here, here and here). It appears that the case under discussion initially involved four defendants: Ihor Biedulin, Mykola Vynohradov, Oleksandr Buriakov and Dmytro Telehin. Only the first two men reached the stage of cassation proceedings.

Facts

In February 2014, Russia started its armed aggression against Ukraine. In May 2014, Ihor Biedulin and Mykola Vynohradov, both citizens of Ukraine, joined an armed group known as the Cossack National Guard of the Great Army of the Don, named after M. I. Platov. This armed group was created by Russian military personnel. At first, Ihor Biedulin and Mykola Vynohradov underwent training to prepare for the aggressive war against Ukraine. From May until July 2014, they used grenade launchers, mortars and other weapons against the Ukrainian troops in Lysychansk.

Procedural History

On 18 May 2020, the Lysychansk City Court of the Luhansk Province convicted Ihor Biedulin and Mykola Vynohradov in absentia of, among other things, participating in a conspiracy aimed at the planning and preparation of an aggressive war and waging aggressive hostilities based on a prior conspiracy by a group of persons. On 5 October 2020, the Luhansk Court of Appeal upheld this verdict, but the defence filed an appeal in cassation. In particular, the defence claimed that the UN General Assembly resolution on the definition of aggression, which had been used by the judiciary, only concerned state responsibility. At the same time, the prosecution contended that Article 437 of the Ukrainian Criminal Code was too abstract regarding possible perpetrators. Given that ordinary people could hardly wage an aggressive war due to its magnitude, the prosecution asked the GCSC for clarification.

On 23 September 2021, the Criminal Cassation Court of the Supreme Court requested the Supreme Court’s Scientific Advisory Council to prepare an academic opinion on Article 437 of the Ukrainian Criminal Code. Two well-known institutions were consulted. A professor from the National Academy of Legal Sciences of Ukraine asserted that this provision contained no special restrictions as to who could commit the crime of aggression. Conversely, a scholar from the Taras Shevchenko National University of Kyiv endorsed a leadership requirement in the domestic definition in light of international law. A study of the unsettled domestic jurisprudence failed to provide an answer to the dilemma either. The Criminal Cassation Court of the Supreme Court concluded that the ambiguity in question had a negative effect on the rule of law, including the principle of legal certainty, and amounted to an ‘extraordinary legal problem’. On 3 February 2022, the Biedulin and Vynohradov case was therefore relinquished to the GCSC.

Solving the Leadership Requirement Problem

In its Ruling of 28 February 2024, the GCSC summarised the UN General Assembly resolution on the definition of aggression. After that judges differentiated state responsibility under this instrument from individual criminal responsibility under the Ukrainian criminal law. Except for responding to the defence lawyers, the GCSC did not make use of this distinction.

As for the interpretive framework, the GCSC stressed that a national ‘[i]nterpretation of the essence of the acts set forth in Article 437 […] has a certain level of autonomy from their interpretation under international law’ (Ruling, para. 36). The GCSC specified that the question of whose behaviour to criminalise was at the discretion of the state. Referring to the Jorgić v. Germany judgment of the European Court of Human Rights, albeit with a wrong date, the GCSC noted that domestic courts were free to choose any interpretation of a domestic provision stemming from international law as long as their interpretation was consistent with the essence of the offence.

Zooming in on Article 437 of the Ukrainian Criminal Code, the GCSC acknowledged that the parliament had left the issue of perpetrators undefined. To fill this gap, the GCSC stated that it was necessary to take into account the essence and character of actus rei and the capability of a person committing them to exert an influence on the protected legal interest, namely ‘peace as a component of the international legal order’ (Ruling, para. 37, emphasis omitted). Caught between a rock and a hard place, the GCSC avoided the quandary of either following a literal construction of the Ukrainian Criminal Code or letting the international criminal law genie out of the bottle. In the former scenario, judges would have had no choice but to declare the absence of a leadership requirement. Intellectually, this judicial pronouncement could have revolutionised classical just war theory and the traditional relationship between jus ad bellum and jus in bello. In practice, hundreds of thousands of (pro-)Russian footsoldiers would have been put on trial, including in absentia, thereby depleting resources in the already overburdened national system of criminal justice. In the latter scenario, judges would have entered the uncharted waters of relying on the Kampala amendments to the Rome Statute of the International Criminal Court (still not ratified by Ukraine) and customary international law in a domestic criminal law context.

The GCSC came up with the detailed definitions of all actus rei: planning, preparation, initiation, conspiring, waging (of an aggressive war) and waging (of aggressive hostilities). In particular, waging an aggressive war was defined as ‘the action of a person or a group of persons who play a decisive role in the formation or implementation of a certain state policy regarding the commission of aggression against another state’ (Ruling, para. 43, emphasis omitted). Waging of aggressive hostilities was defined as ‘directing the use of armed or paramilitary formations, forces and means for conducting military operations in certain courses of action during an act of aggression’ (Ruling, para. 44). Crucially, the criteria of ‘a decisive role’, ‘state policy’ or ‘directing’ appeared out of thin air. The judicial reasoning akin to law-making was not buttressed by any references to domestic legislation, international instruments, jurisprudence, dictionaries or commentaries. For instance, the GCSC could have cited the International Law Commission’s commentary on the 1996 Draft Code of Crimes against the Peace and Security of Mankind: ‘The perpetrators […] are to be found only in the categories of individuals who have the necessary authority or power to be in a position potentially to play a decisive role in committing aggression’ (see here at 43).

Based on the judge-made definitions of conduct verbs, the existence of a leadership requirement looked inevitable. The question remained as to the precise formulation of this requirement. Again failing to back up its reasoning with any references, the GCSC expounded on who was capable of committing the crime of aggression: ‘[P]ersons who, by virtue of their official powers or a de facto social position, can exercise effective control over or direct political or military actions and/or significantly influence political, military, economic, financial, informational and other processes in one’s own state or abroad, and/or direct specific courses of political or military actions’ (Ruling, paras. 45, 140).

The actus rei of the crime of aggression required that perpetrators were either those with ‘appropriate powers, resources in […] international relations, domestic politics, defence, industry, economy, finance’ or those having ‘a social position that allows them to influence the adoption of relevant decisions by persons in a position of authority’ (Ruling, paras. 46, 141). Who exactly could belong to the leadership circle? The GCSC drew up two non-exhaustive lists: (i) that of functions; and (ii) that of persons performing such functions. Let me quote the latter (Ruling, paras. 47, 142):

[H]eads of states and governments; members of parliament; leaders of political parties; diplomats; heads of special services; commanders of the armed forces of a state and [commanders] of illegal paramilitary or armed formations; other persons who de facto act as military commanders; heads of executive bodies which […] [develop and implement] state policy and legal regulation in the field of activities of armed formations and weapons circulation; leaders whose legal status falls short of that of a military commander and who exercise authority or control over persons participating in an aggressive war or aggressive hostilities; other persons who, without holding formal positions, can really influence the military-political processes related to [the actus rei of the crime of aggression].

The judicial reasoning lacked any legal analysis of the ‘shape or influence’ standard, which was articulated in the High Command Trial by the Nuremberg Military Tribunal, or the ‘control or direct’ standard of the Rome Statute of the International Criminal Court, as amended at the Kampala Review Conference. In an arbitrary manner, broader versions of these standards were tacitly merged into a convenient legal tool against Ukraine’s enemies.

Outcome

The GCSC ruled that the lower courts had erroneously applied Article 437 of the Ukrainian Criminal Code with respect to Ihor Biedulin and Mykola Vynohradov, whose convictions of the crime of aggression were therefore cancelled. The GCSC also ruled that this decision shall be equally applicable to Oleksandr Buriakov and Dmytro Telehin, pursuant to Article 433(2) of the Ukrainian Code of Criminal Procedure. Yet, none of these footsoldiers beat the rap. All were found guilty of other offences.

Separate Opinions

Interestingly, two concurring judges of the GCSC, who leaned towards judicial minimalism, opined that the majority was too academic and discursive in explaining the leadership requirement. Rather, they would have deleted paragraphs 141 and 142 of the Ruling, thus limiting the clarification to paragraph 140.

In another separate opinion, a dissenting judge of the GCSC reiterated that Article 437 of the Ukrainian Criminal Code was silent on the existence of a leadership requirement. He/she then added that ‘valid international legal acts’ contained no restrictions as to who could commit the crime of aggression. It is unclear whether the term ‘valid’ meant in force specifically for Ukraine. In any event, the idea of relying on Article 8bis(1) of the Rome Statute of the International Criminal Court to construe the domestic definition of this offence was rejected for a bizarre reason: ‘high-ranking officials of a foreign state’ enjoy immunity ratione personae from the criminal jurisdiction of Ukraine. The dissenter confused the statutory definition of the crime of aggression with the issue of immunity. How did he/she solve the leadership requirement problem? Following the majority’s approach, the dissenting judge focused on the actus rei and the capability of a person to commit them. However, this judge—unlike the majority—did not put forward any arbitrary criteria, such as that of a decisive role. In his/her view, any person could actually join an organised group and thus participate in a conspiracy aimed at the waging of an aggressive war or aggressive hostilities. Otherwise, the dissenter continued, the actions of direct perpetrators executing the leaders’ orders would be beyond a legal assessment.

Final Remarks

In the hierarchies of knowledge production and transnational knowledge exchanges, the Biedulin and Vynohradov case vividly illustrates the yawning chasm that divides Western overbearing (mis)beliefs about Ukraine and timid voices from this state. On the one hand, Ukrainian lawyers struggle to make the most of international criminal law when trying to comprehend the crime of aggression. Paradoxically, it was the prosecution—not the defence—who asked the GCSC to elucidate the leadership requirement problem. For its part, the GCSC seemed to be reluctant to leave the comfort zone of national legal argumentation, thus weakening the quality of judicial reasoning. On the other hand, Western legal academics form a dominant discourse in their own information bubble. First, they doubted the ability of the Ukrainian system of criminal justice to deal with an offence ‘of such magnitude and complexity’ amidst the war. Nevertheless, the system proved to be functional. Second, they expressed strong opinions on the absence of a leadership requirement without bothering to anatomise original sources or engage with Ukrainian legal scholarship. Now it is, however, crystal clear that Article 437 of the Ukrainian Criminal Code shall only be applicable to persons holding leadership positions. As stipulated in Article 368(6) of the Ukrainian Code of Criminal Procedure, domestic courts ‘shall take into account conclusions on the application of relevant legal norms’ which were reached in rulings of the Supreme Court. The legal community in Ukraine would get much benefit from the elaborate definitions of the leadership requirement and conduct verbs. It remains to be seen who would be convicted of the crime of aggression in the coming years.

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