Numerous war crimes committed by the aggressor state on the territory of Ukraine have generated a huge public demand for justice and punishment of the perpetrators. What legal norms regulate individual responsibility, what the national legal system is currently capable of, and how the rules on liability for the crime of aggression are applied in practice, Alina Pavliuk, attorney at law, analyst at the Ukrainian Legal Advisory Group, a member of the Ukraine. Five in the Morning".
The crime of aggression is the most serious international crime and the one that is the subject of the most debate. Political discussions are combined with legal proceedings, and court hearings with the international arena. Despite the ongoing debate over the feasibility of holding Russians individually responsible for the state's aggressive actions, Ukraine is paving its own way in this regard.
From the very beginning, Article 437 of the Criminal Code was introduced into Ukrainian legislation. It provides for liability for planning, preparing, starting and waging an aggressive war. Like all the other articles in the section on crimes against peace, it was intended to remain a nominal crime with no prospects for practical application.
After the Russian invasion in 2014, Article 437 of the CCU became a practical tool for analysing responsibility for the events in Crimea and Donbas. The verdicts against Viktor Yanukovych and detained Russian military officers (in particular, Yevgeny Erofeev and Alexander Alexandrov) attracted the attention of the international community.
However, after the full-scale invasion of Ukraine by the Russian Federation in 2022, the list of subjects for possible prosecution by the Ukrainian side has significantly expanded. It includes MPs and high-ranking officials of the Russian Federation. And the qualification of their actions was often supplemented or competed with Article 110 of the CCU ("Trespass against the territorial inviolability and integrity of Ukraine"). Different approaches at the level of investigation to the subject of responsibility for the crime of aggression required clarification from the Supreme Court.
Despite various initiatives, the Criminal Code of Ukraine still does not comply with the approaches of international criminal and humanitarian law. Instead, in their practice, national courts are forced to look for compromise solutions that will allow them to review the results of investigations through the prism of relevant national standards.
Ten years after the first proceedings under Article 437 of the CCU were registered, the Supreme Court published its position on this issue. It offers a fairly clear list of possible subjects of a crime under Article 437, including, in particular: heads of state and government, members of parliament, leaders of political parties, diplomats, heads of special services, commanders of armed forces subordinate to the state, as well as illegal paramilitary or armed groups, etc.
10.04.2024
