Ukrainian Prosecution of ICC Statute Crimes: Fair, Independent and Impartial?

In view of the widespread euphoria about Ukraine’s admirable defensive struggle against the Russian war of aggression, it is easy to forget that until a few months ago Ukraine was still considered a problematic case in terms of the rule of law. Not only was the fight against corruption promised by President Zelenskyy considered insufficient, but classic deficits in the rule of law have persisted since his election in 2019, not least concerning the independence of the judiciary. It is plainly unreasonable to expect that these problems would disappear– virtually overnight – with the Russian invasion of 24 February. The widespread praise in Germany and other Western countries for the war crimes trial against a Russian tank driver, sometimes even combined with hymns of praise for the Ukrainian rule of law should, therefore, at least give rise to critical questions. Furthermore, and in a similar vein, doubts about the impartiality of Ukrainian investigations into international core crimes should be looked at carefully and impartially.

The trial of Vadim Shishimarin, the aforementioned Russian tank driver, raises several questions and concerns, in part due to the fact that, while the trial was public, the judgment is currently not accessible. For example, it is unclear how Shishimarin’s confession was produced? We know nothing about the preliminary proceedings, especially to whom and at what time this confession was made. We also do not know whether pressure was put on Shishimarin. Nor do we know whether his defence lawyer, who is known in Ukraine as the lawyer of former (pro-Russian) President Yanukovych, was present when he made the confession. However, what we do know is that Shishimarin acted on orders, but it is unclear exactly what those orders were and why they were given. Was the killing of the civilian intended to cover up the theft of a motor vehicle by the perpetrator and his comrades? Or was there a fear that the victim would reveal the location of the Russian soldiers, making them an easy target for the Ukrainian military? If the latter was the case, the manifest unlawfulness of the order (Art. 33(1)(c) ICC Statute) and, thus, the negation of its effect as a defence would not be so clear. Under the Ukrainian Criminal Code, which provides for a nuanced rule on superior order (Art. 41), the decisive factor is also the manifest unlawfulness of the order in question. Even if one assumes such a manifest unlawfulness, it may still be possible that a soldier makes a relevant error regarding the lawfulness of the order at the time, relieving him or her of criminal responsibility (relevant mistake of law pursuant to Art. 32(2) ICC Statute which, in its second sentence, explicitly refers to the superior order provision of Article 33).

At any rate, the life sentence imposed on Shishimarin is particularly striking. The conviction for the war crime of (intentionally) killing of civilians is, pursuant to Art. 438(2) of the Ukrainian Criminal Code (UkrCC), punishable by 10-15 years imprisonment or life imprisonment. However, while the imposition of a life sentence is possible under existing Ukrainian law, it appears disproportionate in this case for several reasons. First of all, the defendant only killed one civilian and there are no aggravating factors. Thus, in the context of the war crime of killing civilians, the act in question has to be classified in the lower range of severity and, therefore, one should start from the temporal baseline of 10-15 years imprisonment when determining the concrete punishment. In fact, in a second trial of Russian soldiers for shelling a civilian area, the sentence imposed was 11.5 years. Furthermore, Shishimarin is a young 21-year-old first-time offender who grew up in socially difficult circumstances in Siberia, had allegedly voluntarily turned himself in, cooperated by means of his confession, acted on orders and also showed remorse. Even if the court doubted the sincerity of the remorse, all these factors are mitigating circumstances pursuant to Art. 66 UkrCC; in turn, there are apparently no aggravating circumstances according to Art. 67 UkrCC.

The disproportionality of the life sentence is further highlighted by the fact that under Ukrainian law, there is no possibility of a suspended sentence or parole in cases involving convictions for life. Indeed, for those serving a life sentence there is only one possibility to not end their life in prison. Article 151 (7) of the 2003 Code of Enforcement of Criminal Sentences states that an application can be made, after at least 20 years in prison, for the commutation of the life sentence to a temporal one of at least 25 years by way of a presidential pardon (Art. 106 no. 27 of the Constitution in connection with Art. 87 UkrCC). However, the Ukrainian pardon regime is neither geared to the idea of rehabilitation nor is it applied transparently and effectively at all, which is why the European Court of Human Rights held in 2019 (para. 169 ff.) that the Ukrainian life sentence regime, entailing a de facto irreducible life sentence, violates the prohibition of torture pursuant to Art. 3 of the Convention.

The Shishimarin trial and future Ukrainian proceedings for Russian war crimes also has a flip side that raises another question, namely, will Ukrainian authorities investigate possible Ukrainian war crimes (on this, for example, see UN OHCHR Report, para. 41, 46 ff.) with the same vigour. There are some reasonable doubts about this. First of all, it is striking that the Ukrainian Prosecutor General Iryna Venediktova, while affirming that Ukrainian war crimes are also being investigated, has stated that any possible prosecutions should be postponed until the post-war period. In practice, her office apparently deals exclusively with alleged Russian crimes. In the early stages of the conflict this even included trespassing of the Russian combatants on the territorial integrity of Ukraine (OHCHR Report, para. 49), which, being an inherent part of normal combatant activity, does not constitute a war crime. Such prosecutions would violate the principle of combatant immunity, although it is unclear whether they are being brought today and whether any individuals so charged would be brought to trial.

Also noteworthy is the fact that a Joint Investigation Team (JIT) was recently set up between Ukraine, Poland and Lithuania with Ukraine, a non-EU State, as its leading member. A JIT is an investigative instrument based on the EU Mutual Assistance Convention 2000 (Article 13) and created for the prosecution of cross-border crime in the EU area by several EU States. While an extension of a JIT to non-EU States is possible by separate agreement (cf. Art. 13 (12) EU Mutual Assistance Convention), it raises some questions in this specific situation. On the one hand, to use a JIT to investigate crimes on the territory of a party to an armed conflict and giving that party a prominent role in the execution of the JIT, is, to say the least, quite peculiar and difficult to reconcile with the overall general purpose of a JIT as explained above. On the other hand, the membership of the JIT is quite limited given the fact that various EU Member States are conducting investigations regarding the events in Ukraine. While three further EU Member States (Estonia, Latvia and Slovakia) did join the JIT on 31 May, other important Member States, such as Germany, France and the Netherlands, did not, despite intensively investigating events in Ukraine. This may be explained by the possible bias of the existing JIT which, besides Ukraine, is composed of EU Member States which cannot be expected to overcome the Ukrainian focus on alleged Russian crimes. These concerns could possibly be addressed by publishing at least excerpts of the agreement underlying this JIT.

Against this background, it is hardly surprising that the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), being obliged to investigate all possible crimes committed on Ukrainian territory independently and impartially, has not joined the JIT as a ‘member’, but only as a ‘participant’. The fact that Ukraine has not yet become a State party to the ICC Statute (see recent calls for such here) is not confidence inspiring either, nor are reports of misgivings, especially on the part of certain Ukrainian generals who do not want to expose themselves and their soldiers to prosecution by the ICC. Although this concern is rather moot, given the ICC already has jurisdiction due to the declarations by Ukraine pursuant to Art. 12 (3) ICC Statute regarding all statutory crimes committed on Ukrainian territory, it supports the presumption that Ukraine only wants to see Russian crimes prosecuted. Last but not least, concerns over Ukraine’s approach to ICC crimes committed in the current conflict are confirmed by the – enacted only now – Ukrainian-ICC cooperation law, adopted by the Ukrainian parliament on 3 May 2022 and in force since 20 May after having been signed by President Zelenskyy. This law amends the Ukrainian Criminal Procedure Code introducing a new section IX (“Peculiarities of Cooperation with the International Criminal Court”) which is preceded by a kind of introductory note which, roughly translated from Ukrainian (I thank Gleb Bogush for this translation  and other comments), states:

“This section applies exclusively to cooperation with the International Criminal Court, in order to extend its jurisdiction to persons (citizens of Ukraine, foreign nationals and stateless persons) who at the time of the commission of the crime falling under the jurisdiction of the International Criminal Court were subject to and/or acted with the aim of carrying out armed aggression against Ukraine, and/or on the basis of decisions (orders, directives, etc.) of officials, military command, or public authorities of the Russian Federation or another State that carried out aggression or facilitated its implementation against Ukraine.”

Such a narrowing of the national cooperation obligation is hardly compatible with the ICC’s cooperation regime which requires not only state parties but also states accepting the ICC’s jurisdiction to fully cooperate (cf. Art. 12(3) 2^nd sentence), i.e. with regard to all Statute crimes allegedly committed on their territory. At any rate, such a national law cannot relieve Ukraine of its obligations under the ICC Statute.

Of course, the questions raised here do not change the fact that the vast majority of crimes committed in the ongoing conflict are attributable to Russian forces. Equally, Ukraine’s right to self-defence and the right of third States to assist it within the framework of collective self-defence (Art. 51 UN Charter) are beyond serious dispute. However, Western representatives should remind Ukraine of its obligation under international law to prosecute all international core crimes allegedly committed on its territory, including those of its nationals and foreign fighters in its service. If it turns out that the Ukrainian investigations are focused purely on possible Russian acts and perpetrators, then not only Ukraine but also the West will have a huge credibility problem. What’s more, if Ukrainian combatants actually commit war crimes or other international crimes using Western weapons, this cannot be ignored by the West. In fact, it would have to rethink its military support in order not to be held liable under international law for having assisted in these crimes.