Prosecuting war crimes: are Ukrainian courts fit to do it?

 Only three months after Russia’s full-scale invasion, Ukrainian courts delivered the first convictions for war crimes committed by Russian soldiers in Ukraine since February 2022. In May, a Russian soldier was sentenced to life imprisonment for killing a civilian in Sumy Region. The conviction of two more soldiers of indiscriminate attacks on civilian areas in Kharkiv Region followed. In June, the preliminary hearings in a case related to charges of murder and rape took place. Most recently, a Russian soldier was sentenced to 12 years’ imprisonment for pillaging. As of 4 August 2022, about 25 000 war crimes are pending investigation.

The first war crime trials in Ukraine, closely scrutinised by the international community, prompted a discussion around the capacity of the Ukrainian courts to prosecute war crimes, their ability to do so in compliance with fair trial guarantees and the appropriateness of doing so while the war is ongoing. For instance, Kai Ambos writes about the concerns relating to the independence of the Ukrainian judiciary, while Sergey Vasiliev acknowledges that the judges’ impartiality and fairness in a trial taking place against enemy soldiers during the war is ‘bound to be questioned’. Céline Bardet questions the appropriateness of holding war crimes trials while the war was ongoing pointing out that ‘justice requires a serene context’ to ensure an impartial and fair trial.

Prosecuting war crimes committed in Ukraine is a demanding task. The scale of criminality, the wide scope of the affected geographical areas and the high number of potential victims would pose a challenge to any judicial system, let alone to one affected by an ongoing war. Even with the involvement of the ICC and any possible trials based on the principle of universal jurisdiction in foreign states, the main burden of prosecuting war crimes committed in Ukraine will fall on the shoulders of the Ukrainian legal system. This contribution addresses the fitness of Ukrainian courts to prosecute war crimes in terms of capacity, ability to ensure fair trial and expertise.

Courts in time of war

Albeit affected by the war, the Ukrainian judicial system continues functioning. According to the President of the Supreme Court of Ukraine, 132 or about 20% of the country’s courts, mostly those located in areas of Ukraine controlled by Russian forces, were not functioning at the end of April 2022. The work of the courts located in and around the frontline is also hindered by security concerns and ongoing hostilities, destruction and targeting of court buildings, lack of personnel owing to evacuation of the population to safer areas or inability to return in view of destruction of people’s homes. But the courts located outside the occupied territories or areas of active hostilities continue their work. Efforts have also been made to renew the operation of the courts in liberated areas such as Chernihiv and Kyiv regions.

So far the war crime trials of Russian soldiers have taken place either in courts located in the regions where the crimes were committed (courts located in the cities of Kyiv and Chernihiv heard cases relating to crimes committed in Kyiv region and Chernihiv respectively) or courts located in the adjacent regions where events in question took place close to the frontline (courts in Kyiv city and Poltava region, which is in central Ukraine, heard cases relating to crimes committed in Sumy and Kharkiv regions respectively).  

This is not the first time the Ukrainian judicial system adapts to a state of war. Following the annexation of Crimea and the start of the war in eastern Ukraine in 2014, the jurisdiction of the courts located in these areas was transferred to the courts located in adjacent regions and other parts of Ukraine. The affected courts were subsequently relocated to cities under governmental control. This ensured that residents of the occupied territories had access to courts in Ukraine despite the Government’s lack of control over these areas, as the European Court of Human Rights (ECHR) noted in Tsezar and others v Ukraine. The same approach of temporarily transferring the jurisdiction to other courts located in the safe areas was followed in the wake of Russia’s full-scale invasion of Ukraine in February 2022. These legislative changes in combination with the predominant majority of the courts still functioning, enables the Ukrainian judicial system to administer justice in relation to the territories under Russia’s control and those affected by active hostilities.

Independence and impartiality

Russia’s war against Ukraine is so manifestly unlawful, destructive, and cruel that it is not surprising that some may question the ability of Ukrainian judges to stay impartial when conducting war crime trials of Russian soldiers. However, there is nothing in international law that prevents a belligerent state from trying the members of the adversary armed forces for war crimes. To the contrary, international humanitarian law obliges states to prosecute war crimes committed on their territory (Rule 158). Furthermore, the notions of judicial independence and impartiality are embodied in concrete internationally recognised standards of fair trial. It is those concrete standards, rather than some abstract ideas and presumptions, that must be used to evaluate the independence and impartiality of judges in each specific trial that takes place before Ukrainian courts.

Pressure from the wider public is another risk in the current circumstances. In a recent interview, a lawyer representing one of the Russian soldiers spoke about hostile reactions on social media and through phone calls that he had received in connection with his work on this case. At the same time, he believes that majority of Ukrainians understand that an accused has a right to defence and that it is the lawyer’s job to represent the accused. There are no indications that the work of defence lawyers, appointed through the general government-funded legal aid scheme, to represent Russian soldiers is in any way hindered by the Ukrainian government. But the Ukrainian government must also ensure that the judges, defence lawyers and other actors involved in war crime trials are able to carry out their tasks free from inappropriate outside interference.

There are also safeguards in place that can ensure that any shortcomings in the proceedings before lower courts are corrected. At the domestic level, the accused can challenge the judgments in the court of appeal and court of cassation, as it has been done in the case of the Russian soldier whose life sentence for violating laws and customs of war by killing a civilian was reduced to 15 years’ imprisonment. The court of appeal found that there were no aggravating circumstances in the form of conspiracy to commit murder or intent to commit a crime against an elderly person justifying a life sentence.

It is also possible for the accused to challenge the domestic proceedings in Ukraine before the ECHR. In fact, the very existence of the possibility of a claim before the Strasbourg court exercises an important supervisory function over the Ukrainian judiciary. Furthermore, the war crimes trials of Russian soldiers, except for one relating to sexual violence, have taken place in public and are intently followed and reported in Ukrainian media. The close international scrutiny and monitoring by civil society can serve as an additional safeguard against encroachment on fair trial rights in the war crime trials.

Another available, at least in theory, supervision mechanism is the appointment of a Protecting Power (Article 2(c), Additional Protocol I; Article 8, Geneva Convention relative to the Treatment of Prisoners of War (GC III)), meaning a state who is not party to the conflict and whose representatives would be entitled to attend and monitor the war crimes trials of prisoners of war (Article 105, GC III). While this may help to alleviate the concerns relating to fair trial rights, the mechanism has rarely been used in practice in modern times as it may be difficult for warring parties to agree on the choice of a third state (2020 Commentary to GC III, paras 1296-1300). In practice, the ICRC has acted as a de facto substitute.

While the war is ongoing

Some question the wisdom of holding war crime trials while the war is ongoing. The pace of the war crime trials in Ukraine must not compromise the quality of the proceedings and the accused’s right to prepare an effective defence. At the same time, delaying the war crime trials until an uncertain point in future when the war has ended can have implications for the accused’s rights. In fact, Article 103 GC III demands that investigations and trials relating to prisoners of war take place ‘as rapidly as the circumstances permit’. An equivalent obligation to conduct a trial within a reasonable time and ensure that the accused is not held in pre-trial detention any longer than necessary to conduct investigations and trial exists in human rights law. Furthermore, delaying the investigations and trial may affect the availability of evidence and witnesses and consequently the quality of the trial, especially in relation to crimes committed in areas where hostilities are ongoing.

Expertise in prosecuting war crimes

That a domestic legal system lacks extensive experience or specialisation in prosecuting and trying war crimes is in fact quite common. After all, war is an exceptional situation. However, lack of prior experience did not prevent such countries as Germany, Sweden and the Netherlands from developing a practice of prosecuting war crimes based on the principles of universal jurisdiction in the past decade and doing so in domestic courts of general jurisdiction.

At the same time, given that the war in Ukraine has been ongoing since 2014, more could have been done to build the relevant expertise of the Ukrainian judiciary. So far, the trials in Ukraine concerned the wilful killing of a civilian, rape, pillaging, indiscriminate attacks on and intentional targeting of civilian objects. In all these cases the accused were charged under one and the same general provision of the Criminal Code of Ukraine, namely Article 438 which criminalises all violations of laws and customs of war. Adoption of the legislation incorporating a catalogue of specific war crimes, akin to that found in Article 8 of the Rome Statute would modernise Ukrainian criminal legislation. It would also equip the judges with a more effective tool, in the form of specific norms of international humanitarian law and international criminal law, to correctly label the different types and categories of war crimes that they now must try.

Other ways of overcoming any possible shortage of expertise are available too. First, establishing a specialised branch of judiciary within the Ukrainian court system would allow the creation of a pool of judges specialised in prosecuting war crimes. An international element injected in the chosen domestic judiciary mechanism in the form international judges or legal advisors could strengthen its expertise, serve as an additional guarantee of independence and impartiality and ‘maximise legitimacy’ of war crime trials. In fact, War Crime Units already exist within the Office of the Prosecutor General of Ukraine, and their work is supported by experts from the Atrocity Crimes Advisory Group established by EU, US and UK in May this year.

Second, in the absence or pending the creation of a specialised war crimes branch, Ukrainian courts of general jurisdiction could make use of external expertise when faced with complex legal issues in war crime trials, for instance calling on a military expert or an international humanitarian law scholar to act as some sort of amicus curiae. This may require introducing changes in domestic criminal procedure law, however this could provide an additional source of expertise independent of the parties to the proceedings. The case of Sakhan is an example of a similar approach followed by the Stockholm District Court when it invited an international law expert to testify on the qualification of the armed conflict in Syria and the legality of the courts established by non-state organised armed groups.

Third, Ukrainian judges’ expertise in international humanitarian law and international criminal law could also be improved through educational initiatives and exchange of experience with fellow judges and practitioners from other national or international jurisdictions. The National School of Judges of Ukraine is one of the domestic institutions that could facilitate this process and has indeed already started doing so. A number of international partners that have been working closely with Ukrainian judiciary and more recent initiatives such as Legal Task Force on Accountability for Crimes Committed in Ukraine could support this effort.

What about military courts?

Some have raised concerns about war crime trials in Ukraine taking place in courts of general jurisdiction rather than in military courts. Military courts were abolished in Ukraine in 2010, however since the start of the war in 2014 the issue of creation of military courts has been actively discussed in Ukraine. 

While Article 84 GC III creates a presumption in favour of military courts, it also permits trying prisoners of war in civilian courts provided the ‘the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war’.  First, this reflects the principle of assimilation, according to which a prisoner of war shall be subject to the same laws and regulations as are in force for the armed forces of the Detaining Power and ensures that prisoners of war are not put in less favourable conditions than members of the armed forces of the Detaining Power. Second, the requirement of an express grant of jurisdiction to try members of armed forces in civilian courts is satisfied as long as the national criminal law does not exclude members of the armed forces from the general application of its criminal law (2020 Commentary to GC III, para 3601). Given that the Ukrainian Criminal Code and the criminal procedure under which the Russian prisoners of war are tried applies equally to members of its own armed forces, the war crime trials in the courts of general jurisdiction are in fact in line with the requirements of international humanitarian law.

Conclusion

The main burden of prosecuting war crimes in Ukraine will inevitably fall on the shoulders of the Ukrainian judicial system. Ukrainian courts are best placed to do this job because of their proximity to the evidence, witnesses and victims, their understanding of the context and their knowledge of the languages involved. While the Ukrainian judicial system is naturally affected by the ongoing war, the vast majority of the courts remain available to administer justice. However, serious efforts should be made by Ukraine, in cooperation with the international community, to further strengthen the Ukrainian judiciary’s expertise in prosecuting war crimes.