Why Ukraine's parliament's initiatives to punish war criminals could harm Ukraine
The ratification of the Rome Statute was a crucial step in ensuring accountability for the gravest international crimes committed by the Russian Federation against Ukraine. Now, Ukraine's parliament [the Verkhovna Rada] faces the challenge of aligning national legislation with the standards and principles of international criminal and humanitarian law. Two bills adopted in the first reading by the Rada on 5 December, No.
11538 and No.
11539, have shocked experts. Read more about the problems embedded in these bills and the reasons for their unacceptability in the article by Anna Vyshniakova, lawyer and head of the NGO LingvaLexa, and Sergiy Sydorenko, the European Pravda editor - Non-statutory relations with The Hague: How the bills on international crimes create problems for Ukraine. Advertisement:
The 21 August 2024, vote, when 281 MPs supported the ratification law, was only the first step, with further amendments to other laws expected. On 9 October 2024, the Verkhovna Rada introduced some changes to Ukrainian criminal legislation. While largely positive, these changes also contained flaws.
For instance, the clause addressing the responsibility of top Russian command for the invasion of Ukraine mixed various terminologies, such as "crime of aggression," "aggressive war," and "aggressive military actions." Such inconsistencies, while tolerable in journalism, are unacceptable in criminal law. Legislators acknowledged that the 9 October 2024 bill was intermediate, not final, and often referred to it as the "completion of ratification" rather than an implementation law. Then, in December, the parliament moved on to implementation - and did so poorly.
A group of 53 MPs from parliamentary groups as Sluha Narodu, Holos, Batkivshchyna, the Dovira group, and unaffiliated members, led by Oleksandr Bakumov, initiated two related bills: No.
11538 and No.
11539. Both passed their first reading on 5 December 2024. The professional community's reaction to that can be summed up in one word: shock.
They are so poorly written that fixing them by the second reading seems unrealistic. Even the approach chosen raises questions. Instead of amending the Criminal Code to adapt its provisions to international law standards, legislators propose "splitting" criminal law norms addressing punishment for the gravest international crimes.
As a result, crimes such as genocide, aggression, or specific war crimes would be governed not by the Criminal Code's provisions but by articles of the new bill. This "splitting" could lead to numerous issues in legal practice. Other issues with the bill are related, for example, to the punishment of criminals if their guilt is proven in cases of ongoing or continuous crimes, as well as the imprecise wording of many articles in the new bill.
Instead of developing an effective strategy for amending the Criminal Code by aligning international legal norms with the specifics of the national legal system, the parliament is moving in the opposite direction.
The bills adopted on 5 December do not implement the Rome Statute but rather dig a pit of inconsistencies, contradictions, and mismatches into which efforts to ensure justice and accountability for war crimes since the start of the full-scale invasion will be drained.
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