Ukraine: Calls for Changes to Criminal Code
Current body of law cannot cope with the scope or scale of offences being committed.
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As the Ukrainian legal system struggles to process some 110,000 alleged war crimes, experts warn that changes to its criminal code is urgently needed to streamline legal processes.
Ukraine’s current criminal code, which dates from September 2001, was adopted at a time when there was no anticipation that the country would experience a major war in the near future.
This means it did not contain a definition of war crimes or include a complete list of offences, explained Mykhailo Shepitko, a professor in the department of criminal law of the Yaroslav Mudryi National University of Law.
"When we talk about war crimes, we mean Article 438 of the criminal code,” he continued. “There is a category of other violations of the laws and customs of war. This means that investigators, prosecutors, and judges, in order to correctly qualify and assess what was committed, are forced to refer to other normative legal acts. Primarily, these are the Geneva and Hague Conventions."
However, the legal community in Ukraine was not sufficiently expert in the fields of international criminal and humanitarian law to facilitate this, continued Shepitko, who is among those developing a new criminal code.
He also strongly recommended that Ukraine ratify the Rome Statute, the treaty that created the International Criminal Court (ICC).
Although Ukraine signed this in January 2000, it is yet to ratify it. In 2015, lawmakers registered a draft bill on the recognition of the provisions of the Rome Statute, but it was never considered. The position of the Ministry of Justice remains that the Rome Statute will be ratified after the end of the war, with opposition to this move fueled by fears that it would leave Ukrainian troops also vulnerable to prosecution.
Shepitko argued that adopting the Rome Statute would hugely contribute to the process of determining the criteria for qualifying an act as a war crime and limit the number of errors made.
"More than 110,000 war crimes have been reported in Ukraine. Changes to the Criminal Code of Ukraine or the ratification of the Rome Statute will definitely simplify the qualification procedure - how to compare what was committed in reality and what responsibility is provided for in the criminal code."
A formal process is indeed underway to review the criminal code, supported by partners including the EU Advisory Mission to Ukraine (EUAM).
Its Ukraine spokeswoman Iryna Korobko said that their mandate was to advise on and support draft laws amending the criminal code of Ukraine.
“This advice and support are provided to our Ukrainian partners, such as the office of the prosecutor general, the law enforcement committee of the Verkhovna Rada [Ukrainian parliament], and other relevant actors involved in the reform of the civilian security sector.”
This includes bodies such as the presidential Commission on Legal Reform, comprising ten professors from leading Ukrainian law schools tasked with drafting a new criminal code that aligns with European and international standards.
The issue of reform is twofold. Due to the ongoing war, as Ukraine improves its legislation, it also needs to consider the harmonisation of Ukraine’s criminal law with EU acquis communautaire, the body of common laws, rights and obligations that bind all member states together.
At the same time, amending the criminal code to bring it in line with international law would enhance legal clarity for the effective prosecution of war-related crimes committed in Ukraine.
However, Andrii Osadchuk, first deputy chairman of parliament’s law enforcement committee, said that any changes would not fundamentally impact on the justice system’s greatest challenge, namely the overwhelming scale of work. More investigators, prosecutors and judges were needed to deal with this.
In addition, he noted that the question of who should lead legislative changes regarding war crimes was still unresolved. He argued that it was the office of the prosecutor general which needed to take the initiative, and that the lack of progress was down to their inaction.
"The general prosecutor's office of Ukraine should initiate these changes and developments,” he continued. “As a people's deputy who works in a specialised committee, I have to listen to [the prosecutor general’s office], discuss certain issues with experts and propose changes in the form of a draft law. The committee is waiting for a clear position from the prosecutor general's office.”
