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
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197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 05/05/23 Aceptado el 03/07/23
ISSN 0798- 1406 ~ De pó si to le gal 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.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
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-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Vol. 41, Nº 79 (2023), 402-417
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Justice for war crimes in Ukraine: In
search of an optimal model
DOI: https://doi.org/10.46398/cuestpol.4179.27
Oleksandr Khan *
Ihor Nazarenko **
Hennadii Zvirianskyi ***
Oleksii Manyk ****
Daria Heta *****
Olga Shaituro ******
Abstract
The article is devoted to the investigation of the problems
of nding and applying the optimal mechanism for bringing to
international criminal responsibility persons guilty of committing
war crimes on the territory of Ukraine. During the research a
set of methods of scientic knowledge was used. Among them:
dialectical and formal logic, analysis, abstraction, historical,
comparative, system-structural and modeling methods. The investigated
problem is considered through Ukraine’s obligation to ensure compliance
with the right to a fair trial for persons accused of committing war crimes.
The paper provides current statistics on the number of war crimes
committed on the territory of Ukraine in 2022 and, furthermore, provides
their classication in accordance with the provisions of the Statute of the
International Criminal Court. The known historical models of international
criminal justice are highlighted, their general features and dierences are
given. The shortcomings of the model of judicial procedure for war crimes
chosen by the Government of Ukraine are highlighted. As a result, the
author’s model of international criminal justice is proposed in accordance
with the specics of the situation in Ukraine.
* Candidate of Law, Associate Professor of the Department of Criminal Procedure and Organization
of Pretrial Investigation of the Kharkiv National University of Internal Aairs, Ukraine. ORCID ID:
https://orcid.org/0000-0001-9912-1547
** Candidate of Law, Dean of Faculty № 2 of Kharkiv National University of Internal Aairs, Ukraine.
ORCID ID: https://orcid.org/0000-0003-3544-9863
*** Candidate of Law, Dean of Faculty № 3 of Kharkiv National University of Internal Aairs, Ukraine.
ORCID ID: https://orcid.org/0000-0002-6687-8575
**** Senior Lecturer of the Department of Criminal Procedure and Organization of Pretrial Investigation
of the Kharkiv National University of Internal Aairs, Ukraine. ORCID ID: https://orcid.org/0000-
0002-4384-1219
***** Candidate of Law, Associate Professor of the Department of Fundamental and Legal Disciplines of the
Kharkiv National University of Internal Aairs, Ukraine. ORCID ID: https://orcid.org/0000-0002-
0570-4846
****** Doctor of Law, Associate Professor of the Department of Criminal Law Disciplines of the V.N.
Karazin Kharkiv National University, Ukraine. ORCID ID: https://orcid.org/0000-0002-0614-0595
403
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 402-417
Keywords: war crimes; international justice; hybrid courts; right to fair
trial; police activity in Ukraine.
Justicia para los crímenes de guerra en Ucrania: En
busca de un modelo óptimo
Resumen
El artículo está dedicado a la investigación de los problemas de
encontrar y aplicar el mecanismo óptimo para llevar a la responsabilidad
penal internacional a las personas culpables de cometer crímenes de guerra
en el territorio de Ucrania. Durante la investigación se utilizó un conjunto
de métodos de conocimiento cientíco. Entre ellos: lógica dialéctica y
formal, análisis, abstracción, métodos históricos, comparativos, sistema-
estructurales y modelización. El problema investigado se considera a través
de la obligación de Ucrania de garantizar el cumplimiento del derecho a un
juicio justo para las personas acusadas de cometer crímenes de guerra. El
trabajo proporciona estadísticas actuales sobre el número de crímenes de
guerra cometidos en el territorio de Ucrania en 2022 y, ademas, proporciona
su clasicación de acuerdo con las disposiciones del Estatuto de la Corte
Penal Internacional. Se destacan los modelos históricos conocidos de
justicia penal internacional, se dan sus características generales y sus
diferencias. Se destacan las deciencias del modelo de procedimiento
judicial por crímenes de guerra elegido por el Gobierno de Ucrania. Como
resultado, se propone el modelo de justicia penal internacional del autor de
acuerdo con las especicidades de la situación en Ucrania.
Palabras clave: crímenes de guerra; justicia internacional; tribunales
híbridos; derecho a un juicio justo; actividad policial en
Ucrania.
Introduction
The UN General Assembly, in its resolution of March 2, 2022, qualied
the Russian attack on Ukraine as an act of aggression that violates Article
2(4) of the UN Charter (A/ES-11/L.1 resolution, 2022). In a resolution dated
March 24, 2022, the General Assembly, meeting again in a special emergency
session, demanded «the immediate cessation of military operations by the
Russian Federation against Ukraine, including any attacks on the civilian
population and civilian objects.» (A/ES-11/L.2 resolution, 2022).
404 Oleksandr Khan, Ihor Nazarenko, Hennadii Zvirianskyi, Oleksii Manyk, Daria Heta y Olga Shaituro
Justice for war crimes in Ukraine: In search of an optimal model
In addition to the fact that the invasion of the troops of the Russian
Federation into the territory of Ukraine in itself has the characteristics of a
crime of aggression, a large number of international crimes of other types
are committed during military operations on the territory of Ukraine - we
are talking about war crimes.
The Geneva Conventions of 1949, which codied international
humanitarian law after the Second World War, contained the rst ever list
of war crimes, which included the following actions: intentional killing;
torture and inhumane treatment, including biological experiments;
intentionally causing severe suering or serious injury; causing damage to
health; illegal destruction and appropriation of property, if it is not caused
by military necessity; forcing a civilian or a prisoner of war to serve in the
armed forces of an enemy state; deprivation of the right to an impartial
trial; illegal deportation, transfer of civilians under protection; illegal arrest
of civilians under protection; taking hostages.
This list was signicantly supplemented by Additional Protocol I of
1977, including the following among serious violations: conducting certain
medical experiments; turning the civilian population, individual civilians
or demilitarized and safe zones into targets of attack; carrying out an
indiscriminate attack aecting the civilian population or civilian objects,
when it is known that such an attack will cause a large number of deaths and
injuries among civilians; treacherous use of the emblem of the Red Cross,
the Red Crescent and other protective and identifying signs; relocation by
the occupying power of a part of its own civilian population to the occupied
territory or deportation or relocation of all or part of the population of the
occupied territory; unjustied delay in the repatriation of prisoners of war
or civilians; apartheid; attack on historical monuments and a number of
others (Repetskyi, Lysyk, 2009).
Quite detailed statistics of war crimes committed on the territory
of Ukraine are provided by the participants of the Global Initiative
T4P (Tribunal for Putin) - Ukrainian human rights non-governmental
organizations. To document the events, the organization’s employees
monitor open sources (social networks, news in the media, reports of the
authorities), looking for information about a specic event that has signs
of a war crime (shelling of a residential building, killing of civilians, torture
and other crimes under the Rome Statute).
Data also comes directly from witnesses and victims. Where possible,
employees of participating organizations record events in the eld, take
pictures of the destruction from drones, and personally communicate
with witnesses of the events (T4P, 2022). According to their data, in
accordance with the legal qualication of events under the Rome Statute of
the International Criminal Court, they identied the following types of war
crimes and their number:
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 402-417
1. «Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not
military objectives» (article 8 (2) (b) (v)) – 198 cases;
2. «Intentionally directing attacks against civilian objects, that is,
objects which are not military objectives» (article 8 (2) (b) (ii)) –
5283 cases;
3. «Intentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread» (article 8 (2) (b) (iv)) – 10441 cases;
4. «Murder (article 7 (1) (a) or Wilful killing» (article 8 (2) (a) (i)) –
268 cases;
5. «Wilfully causing great suering, or serious injury to body or
health» (article 8 (2) (a) (iii)) – 154 cases;
6. «Deportation or forcible transfer of population» (article 7 (1) (d)) –
21 cases;
7. «Enforced disappearance of persons» (article 7 (1) (i)) – 837 cases;
8. «Torture (article 7 (f) or Torture or inhuman treatment, including
biological experiments» (article 8 (2) (a) (ii)) - 232 cases;
9. «Taking of hostages» (article 8 (2) (a) (viii)) – 10 cases;
10. «Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance
or peacekeeping mission in accordance with the Charter of the
United Nations, as long as they are entitled to the protection given
to civilians or civilian objects under the international law of armed
conict» (article 8 (2) (b) (iii)) – 44 cases;
11. «Pillaging a town or place, even when taken by assault» (article 8
(2) (b) (xvi)) – 506 cases;
12. «Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law» (article 7 (1)
(e)) – 389 cases;
13. «Committing outrages upon personal dignity, in particular
humiliating and degrading treatment» (article 8 (2) (b) (xxi)) – 30
cases;
14. «Compelling a prisoner of war or other protected person to serve in
the forces of a hostile Power» (article 8 (2) (a) (v)) – 16 cases (T4P,
2022).
406
Oleksandr Khan, Ihor Nazarenko, Hennadii Zvirianskyi, Oleksii Manyk, Daria Heta y Olga Shaituro
Justice for war crimes in Ukraine: In search of an optimal model
Consequently, the number and nature of crimes is staggering. However,
the issue of verifying the discovered facts in court is no less important.
Establishing guilty persons and proving their guilt based on the provisions
of the right to a fair trial recognized in democratic countries. We remind
that according to Art. 10 of the Universal Declaration of Human Rights of
December 10, 1948 «Everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the detennination of
his rights and obligations and of any criminal charge against him» (United
Nations, 1948).
Similarly, in Art. 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms of November 4, 1950, it is said that
«In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established by
law» (COUNCIL OF EUROPE, 1950).
In this regard, the purpose of the research is to nd a model of
international criminal justice for war crimes committed on the territory
of Ukraine, which could ensure the implementation of the principle of fair
justice and, on the other hand, be able to solve a large number of cases.
1. Methodology
During the research, a complex of methods of scientic knowledge was
applied at both general scientic and special scientic levels.
In particular, with the help of dialectical and historical methods,
the development of the concept of international criminal justice was
investigated, and the known historical models of international tribunals
were highlighted.
With the help of methods of scientic analysis and abstraction, the
characteristics of certain historical models of international criminal courts
are given.
The systemic-structural method was used to identify and classify
existing models of international criminal justice.
The comparative method was used to solve the task of conducting a
comparative study of typical models of international criminal courts, as
well as determining the most optimal model for use in Ukraine.
Logical and formal-legal methods were used when working with scientic
and normative-legal sources, reference-statistical and empirical data.
407
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 402-417
The sociological method was used during the study of statistical data on
the number and types of war crimes committed on the territory of Ukraine
during the current military conict.
The modeling method was used during the construction of the proposed
hybrid model of the International Criminal Court on the territory of Ukraine.
2. Recent research and ndings
The problem of nding and building an optimal model of international
criminal justice for the commission of international (including war) crimes
was the subject of research by many scientists. At the same time, these
works have a general theoretical character, or are aimed at researching
International Tribunals of certain varieties. The results of the research of
these scientists formed the basis of this article.
For example, B.V.A. Röling explored the relationship between the law of
war and the repression of war criminals during the post-war period (Röling,
1960.)
A known work Antonio Cassese «International Criminal Law» that
provides main aspects of international criminal law. The paper considers:
the development of ideas about international criminal law; the concepts
of international crimes are revealed and their main types are described
(war crimes, crimes against humanity, genocide, aggression, torture and
terrorism. The paper also denes the main forms of criminal responsibility
for the commission of international crimes, as well as the main provisions
related to punishment for international crimes at the national and
international level.
The work of William A. Schabas «Is devoted to the law that applies in the
three international criminal tribunals, for the former Yugoslavia, Rwanda
and Sierra Leone, set up by the UN during the period 1993 to 2002 to deal
with atrocities and human rights abuses committed during conict in those
countries» (Schabas, 2006; 3).
Oleksandra Chubinidze studies the problem of international
criminal responsibility, which examines the nature of international
judicial institutions that apply international criminal law, and analyzes
their advantages over national courts. Three types of such organs are
distinguished, and their features are outlined. (Chubinidze, 2018).
The bodies of international criminal justice also studied by Vadym
Popko. His works are devoted to the study of the nature of the bodies
of international criminal justice, the history of their formation and
development, as well as the identication of the peculiarities of each of the
many institutional models (Popko, 2021).
408
Oleksandr Khan, Ihor Nazarenko, Hennadii Zvirianskyi, Oleksii Manyk, Daria Heta y Olga Shaituro
Justice for war crimes in Ukraine: In search of an optimal model
3. Results of the study
The practice of investigating war crimes and bringing guilty persons to
justice is known to history. Various models have been applied in dierent
countries, which dier not only in structure, but also in the eectiveness
of their functioning. Let’s consider the well-known international models of
justice for war crimes.
3.1. International criminal courts and their historical models.
In this case, the term «international criminal court» means a competent,
independent court or tribunal, created in accordance with the law, to the
rights of the accused person to be accused by such a organization, which are
recognized by International Covenant on Civil and Political Rights (Article
14). In addition, this term should be understood as a court established with
the support of the international community. (Chubinidze, 2018). States
can fulll their obligation to investigate international crimes and prosecute
suspects by using international or hybrid courts for this purpose, «which
is reected in military statutes and guidelines, domestic precedent law and
ocial statements» (Henckaerts and Doswald-Beck, 2005).
This concept has received the name of international jurisdiction - the
subjection of certain categories of cases to not national, but international
judicial instances. This concept has received the name of international
jurisdiction - the subjection of certain categories of cases to not national,
but international judicial instances. To some extent, it is a limitation of
the sovereign rights of each state. Its type is universal jurisdiction - the
right (and in some cases, the obligation) of states to exercise criminal
jurisdiction, which is based exclusively on the legal nature of the crime,
regardless of the place of its commission, the nationality of the criminal or
the victim, or any other connection with the state that carries out such a
jurisdiction (Schabas, 2006).
Based on the method of creation, international courts can be divided into
three types. The rst type includes ad hoc international criminal tribunals.
The rst acts of the practical embodiment of international jurisdiction
were the creation of the Nuremberg and Tokyo trials after World War II.
Although they were ad hoc tribunals, they became a model for the creation
of international judicial bodies by agreement.
In the recent period, another way of creating international tribunals
was tried: the Security Council of the UN at its 3217th meeting, on May
25, 1993, voted to adopt Resolution No. 8271 on the creation of a special
international tribunal - An international tribunal for the prosecution of
persons responsible for serious violations of international humanitarian
law committed on the territory of the former Yugoslavia since 1991.
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Similarly, the Security Council Resolution No. 955 of November 8, 1994 (S
/ RES / 955 (1994)) established the International Tribunal for Rwanda to
prosecute those responsible for the genocide committed on the territory of
Rwanda or crimes committed by citizens of Rwanda, but on the territory
of neighboring countries in the period from January 1, 1994 to December
31, 1994.
Unlike the Nuremberg and Tokyo trials, the special international
criminal trials for the former Yugoslavia and Rwanda were established not
on the basis of an interstate treaty, but by a decision of the United Nations
Security Council in accordance with Chapter VII of the UN Charter.
The second type of international criminal courts is the so-called hybrid
and «internationalized» courts, which are created not by a decision of the
Security Council, but by an agreement between the United Nations and the
government of the country where the crimes took place and under which
these courts are vested with jurisdiction. Or such courts are formed by the
temporary administrations of the UN.
These agreements in their form are international treaties between a
country and an international organization – «a type of public instrument
of international law, provided for by the Vienna Convention on the Law
of Treaties between States and International Organizations or between
International Organizations». The category of hybrid courts includes,
for example, the Special Court for Sierra Leone or the Special Court for
Lebanon (Schabas, 2006).
These courts are hybrid both in terms of their composition (their
chambers are composed of both international and national judges) and in
terms of the law they use (the norms used by these courts are derived from
both international law and national law a certain state) (Popko, 2021).
The third type includes the International Criminal Court, created on
the basis of multilateral agreement. Its main dierences from the above-
mentioned higher judicial bodies are that it is permanently active, its
personal and territorial jurisdiction is not connected with a concrete
conict or event, and it is not retroactive, i.e. it has the right to consider
only crimes committed after entry into force of it`s Statute (actually -
starting from July 1, 2002). Like the Special International Tribunals of
the UN, it has a two-stage structure and the Prosecutor as an independent
body (Rome Statute of the International Criminal Court, 1998).
The International Criminal Court may exercise its jurisdiction if: 1) the
case is referred to the Prosecutor by a participating state or the UN Security
Council; 2) The prosecutor starts the investigation on his own initiative.
Article 12 of the Criminal Code provides that the International Criminal
Court may investigate and prosecute crimes which, among other things,
were: «... (3) referred to the hearing of the court of the UN Security Council
410 Oleksandr Khan, Ihor Nazarenko, Hennadii Zvirianskyi, Oleksii Manyk, Daria Heta y Olga Shaituro
Justice for war crimes in Ukraine: In search of an optimal model
in accordance with Article 13 ...». In this way, if the Security Council refers
cases to the International Criminal Court, its jurisdiction covers the topic
of any crime. Otherwise, the court will not be able to prosecute crimes
committed by citizens of a country that has not ratied the Rome Statute, or
on the territory of a country that has not ratied the Rome Statute. (Rome
Statute of the International Criminal Court, 1998).
3.2. The Ukrainian model and its disadvantages
Despite the fact that war crimes committed on the territory of Ukraine
are international in nature, the Government of Ukraine chose a national
model of justice for their commission. This means that the qualication of
criminal acts is carried out in accordance with national criminal legislation,
the pre-trial investigation and trial of these crimes is carried out by national
law enforcement and judicial bodies and, accordingly, according to the
rules of national criminal justice.
The criminal classication of war crimes is carried out under Art. 438
(violation of laws and customs of war), art. 437 (planning, preparation or
initiation and waging of an aggressive war, Article 436 (war propaganda)
of the Criminal Code of Ukraine (Law of Ukraine, 2001). According to the
ocial statistics of the Prosecutor General’s Oce for 2022, the largest
number (50,625) of criminal proceedings were initiated under Art. 438 of
the Criminal Code of Ukraine – «violation of the laws and customs of war».
However, the eectiveness of criminal proceedings on war crimes
remains very low. Out of the total number of proceedings, during 2022,
a notice of suspicion was served to only 85 persons, of which only 28
indictments were sent to court (General prosecutor’s report on criminal
oenses, 2022). As of February 2023, 25 Russian soldiers have been
convicted of war crimes in Ukraine, and indictments against more than 90
people have been sent to court (BUG, 2023).
The problem of the investigation of war crimes is the impossibility of
carrying out investigative actions in the territories that are not controlled
by Ukraine, where active hostilities take place. There is a problem with
the interrogation of persons who may be involved in the commission of
a criminal oense, as well as the problem with the detention of potential
criminals due to their stay in the occupied territories. Most of the persons
involved in war crimes committed on the territory of Ukraine in one way
or another have left for Russia and the temporarily occupied territories of
Ukraine.
Along with the outlined problems of criminal justice for war crimes
in Ukraine, there are questions about the model of justice chosen by the
Government of Ukraine as a whole. Can the national model guarantee
compliance with all internationally recognized principles of criminal justice
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 402-417
that must be followed in a constitutional and democratic country? Can the
Ukrainian court be impartial in relation to the Russian military, who are
accused of committing war crimes. Every Ukrainian judge, being a member
of society, in one way or another suered from military aggression on the
part of the Russian Federation, at least moral, and sometimes - material
damage. This also applies to other participants in criminal proceedings
from the side of the prosecution: investigators and prosecutors. Moreover,
there is no guarantee that the defender provided by the state to a person
accused of a war crime will be able to fulll his function fully for moral
reasons.
In addition, the application of the national mechanism of justice for the
commission of international crimes seems illogical. An international judicial
procedure for criminal prosecution based on established international
judicial and investigative institutions should be applied. This will also
increase the legitimacy of court verdicts in such cases.
3.3. Finding the optimal model for Ukraine
The establishment of international criminal courts is the most adequate
method of prosecution for international crimes. B.V.A. Röling stressed that
«due to the fact that war crimes are a violation of the laws of war, that is,
international law, cases of international crimes must be considered by an
international judge.» He is best suited for this» (Röling, 1960).
Antonio Cassese reveals this opinion in more detail: «For the
consideration of international crimes, international courts are the bodies
most suitable for this, since they are in a better position from the point
of view of knowledge and application of international law. International
judges have more reason to be unbiased or more objective than national
judges, which are related to the circumstances in which the crime was
committed.
Antonio Cassese reveals this opinion in more detail: «For the
consideration of international crimes, international courts are the bodies
most suitable for this, since they are in a better position from the point
of view of knowledge and application of international law . International
judges have more reason to be unbiased or more objective than national
judges, which are related to the circumstances in which the crime was
committed. The prosecution of perpetrators of international crimes
by international tribunals usually meets with less opposition than the
prosecution of national ones, as it aects national pride much less.
International courts can more easily investigate crimes by conducting
investigative actions in many countries than national courts. Often
witnesses live in dierent countries, certain evidence can be obtained as
a result of the cooperation of several states. Also, special expertise is often
412 Oleksandr Khan, Ihor Nazarenko, Hennadii Zvirianskyi, Oleksii Manyk, Daria Heta y Olga Shaituro
Justice for war crimes in Ukraine: In search of an optimal model
necessary, which concerns complex legal problems that arise as a result of
the interpretation of the laws of dierent countries. International courts
can guarantee uniformity in the application of international law, while
hearings conducted by national courts can lead to great dierences in the
application of this law and in punishment for convicts.
Finally, the creation of international courts indicates the desire of the
international community to punish those who deviate from acceptable
standards of human behavior. When determining the punishment, the
goal of the international community is not only retribution, but also the
stigmatization of criminal behavior - and the hope that it will continue to
provide a deterrent eect on potential criminals».
At present, separate steps in this direction have been taken in Ukraine.
In particular, amendments were made to the Criminal Procedure Code
of Ukraine regarding the granting of powers to the prosecutors of the
International Criminal Court to independently conduct investigative and
other procedural actions on the territory of Ukraine after their agreement
with the Prosecutor General of Ukraine.
In March 2022, the International Criminal Court, at the request of 42
countries, announced the start of an investigation into war crimes as a result
of the Russian invasion of Ukraine. (Suspilne novyny, 2023). However, as
stated in the message, the prosecutors of the International Criminal Court
will collect evidence on the most serious international crimes committed
in Ukraine. Therefore, only a certain part of the total number of crimes
committed on the territory of Ukraine can potentially be considered by the
International Criminal Court. In such a model, the problem of impartiality
of the court does not arise, because the prosecutors of the International
Criminal Court and the judges of this court are completely independent
from the events taking place in Ukraine.
However, the prospect of the International Criminal Court’s work on
international crimes committed in Ukraine is doomed to failure. This is due
to formal reasons. According to the Kampala Amendments to the Rome
Statute, in order for the International Criminal Court to have jurisdiction
over the crime of aggression, the aggressor state must ratify the Rome
Statute.
Or this situation should be referred to the International Criminal Court
by the UN Security Council (Rome Statute of the International Criminal
Court, 1998). The Russian Federation has not ratied the Rome Statute
and is unlikely to allow the adoption of a UN Security Council resolution
regarding its own crimes, using the right of veto as a permanent member of
the UN Security Council.
In this regard, it is currently necessary to talk about the creation of a
special tribunal, either on the basis of an agreement between the Government
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of Ukraine and the United Nations with the adoption of a corresponding
resolution of the UN General Assembly, or on the basis of a multilateral
open international agreement between the states of the civilized world.
At the same time, the second model, in our opinion, is more optimal from
the point of view of the international legitimacy of such an institution. The
creation of a court based on the vote of the majority of member countries of
the UN General Assembly will indicate the international recognition of such
an institution. Otherwise, the creation of a special tribunal on the basis of
an international treaty with individual states will require the involvement
of the largest number of countries to increase the level of international
legitimacy of the future judicial institution.
At the same time, the resource capacity of the special tribunal is limited.
Considering the very large number of war crimes that have been committed
and continue to be committed on the territory of Ukraine, consideration
of these cases by one judicial institution may take years, or even tens of
years. In this case, the implementation of the principle of inevitability of
punishment for committed international crimes in practice will turn out to
be ephemeral. In this regard, the following approach may be appropriate:
for the crime of aggression, criminal proceedings should be carried out by a
special tribunal, and for others - by hybrid judicial institutions.
The model of hybrid international justice provides for the creation
of courts on the territory of Ukraine, which will consider those criminal
cases that are currently being investigated by national law enforcement
agencies. Under the conditions when the vast majority of crimes are already
investigated according to Ukrainian criminal procedural legislation, during
the consideration of these cases in court, the problem of checking the case
for possible violations by investigators or prosecutors during the collection
of evidence will arise. For this, it is necessary for the judge to have knowledge
of national Ukrainian legislation and its peculiarities.
This task can be solved only with the introduction of a hybrid model of
judicial proceedings, because only it involves the formation of mixed court
chambers (from both international and national judges). Thus, the presence
of international judges will guarantee the impartiality of the court during
the consideration of criminal cases, and the presence of national judges will
become a guarantor of awareness of national criminal procedures. In order
for such courts to function eectively, there should be several - according to
the number of administrative regions of Ukraine, on the territory of which
the largest number of war crimes were committed - Donetsk, Luhansk,
Kharkiv, Sumy, Chernihiv, Kyiv, Zaporizhzhya, Dnipropetrovsk, Kherson
and Mykolaiv.
Each of the courts, respectively, is created at the level of the region and its
jurisdiction includes the consideration of those crimes that were committed
on the territory of the relevant territorial unit. It is also necessary to create
414 Oleksandr Khan, Ihor Nazarenko, Hennadii Zvirianskyi, Oleksii Manyk, Daria Heta y Olga Shaituro
Justice for war crimes in Ukraine: In search of an optimal model
an appellate instance for the exercise of the right of participants in criminal
proceedings to appeal the decisions of the court of rst instance and to
control their legality.
The possibility of creating hybrid courts on the territory of Ukraine should
also be considered for compliance with its Constitution. In accordance
with Part 6 of Art. 125 of the Constitution of Ukraine, the creation of
extraordinary and special courts is not allowed in Ukraine (Constitution of
Ukraine, 1996), and the same prohibition is mentioned in Part 2 of Art. 3
of the Law of Ukraine «On the Judicial System and the Status of Judges»
(Law of Ukraine, 2016). At the same time, neither the Constitution nor the
aforementioned law discloses the meaning of the concepts «emergency and
special courts».
Therefore, if we consider the creation of international hybrid courts
on the territory of Ukraine as extraordinary or special, then such a model
contradicts the Constitution of Ukraine. However, the Constitutional
Court of Ukraine in its conclusion in the case based on the constitutional
submission of the President of Ukraine on providing an opinion on the
conformity of the Constitution of Ukraine with the Rome Statute of the
International Criminal Court (Rome Statute case) dated July 11, 2001 No.
3-v/2001 noted that «The International Criminal Court did not can be
referred to extraordinary and special courts, the creation of which is not
allowed in accordance with the fth part of Article 125 of the Constitution
of Ukraine. Extraordinary and special courts within the meaning of this
article are, rstly, not international, but national courts, and secondly,
courts created to replace ordinary courts that do not properly follow the
procedures established by law» (Constitutional Court of Ukraine, 2001).
Therefore, in Ukraine it is forbidden to create national courts that do
not follow the procedures established by law. Hybrid courts are, rst of all,
international judicial institutions, not national ones. And, secondly, during
their work, it is possible to apply both international and national court
procedures, which can be properly balanced during their creation.
Conclusions
Summarizing what has been said, the following conclusions should be
emphasized. Historically, several typical models of trial for war crimes have
been formed in international practice: 1) ad hoc international criminal trials,
which can be established on the basis of an interstate treaty or a document
of the United Nations Security Council; 2) hybrid organizations, which are
created on the basis of an agreement between the United Nations and the
country, on the scene of which a crime was committed, for which these
organizations have jurisdiction; 3) a permanent tribunal - the International
Criminal Court.
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The national judicial model chosen by the government of Ukraine cannot
guarantee compliance with the requirement of an impartial judiciary as
a component of the right to a fair trial in relation to the Russian military
accused of war crimes. In addition, the international criminal prosecution
procedure should be applied for the commission of international crimes,
and not the national mechanism. Otherwise, the legality and legitimacy of
court judgments issued by national courts becomes questionable.
The most optimal approach may be that the crime of aggression will
be prosecuted by a special tribunal, and for other war crimes - by hybrid
judicial institutions that will operate on the territory of Ukraine and that
will consider those criminal cases that are currently being investigated by
national law enforcement agencies. The presence of international judges
in the composition of hybrid tribunals will guarantee the impartiality of
the court during the consideration of criminal cases, and the presence of
national judges will become a guarantor of awareness of national criminal
rules and procedures.
Taking into account the very large number of war crimes that have been
committed and continue to be committed on the territory of Ukraine, there
should be several such courts - according to the number of administrative
regions of Ukraine, on the territory of which the largest number of war
crimes were committed. It is also necessary to create an appellate authority
for the exercise of the right of participants in criminal proceedings to appeal
the decisions of the court of rst instance and to control their legality.
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Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
