Forensic police exhume bodies from unidentified makeshift graves at the Pishanske cemetery on September 23, 2022 in Izium, Ukraine. A total of 447 bodies was exhumed from the gravesite, including 22 soldiers and 5 children, and the bodies will be examined for possible war crimes.
Forensic police exhume bodies from unidentified makeshift graves at the Pishanske cemetery on September 23, 2022 in Izium, Ukraine. A total of 447 bodies was exhumed from the gravesite, including 22 soldiers and 5 children, and the bodies will be examined for possible war crimes. © Paula Bronstein/Getty Images

Ukraine: Prosecuting War Crimes in Civilian Courts

Are such trials compatible with international humanitarian law?

Tuesday, 16 May, 2023

Ukraine has so far handed down 30 verdicts against Russian military personnel for war crimes, most in absentia. All cases have been tried in civil courts, as military courts were abolished in Ukraine in 2010.

Amid debate over whether prisoners of war can be tried in civilian courts, lawyer Mykola Pashkovskyi and vice-president of the Ukrainian Association of international law Tymur Korotkyi told IWPR’s Victoria Matola that Ukraine’s current actions were consistent with international law, and explained what legislative changes were needed to improve the process.

From the beginning of the full-scale invasion, Russian servicemen accused of war crimes have been tried in civilian courts. Is this in line with international humanitarian law?

Tymur Korotkyi: A peculiarity of the Russian-Ukrainian armed conflict is that war crimes cases are being investigated and considered while it is ongoing. Therefore, the defendants in these cases are both combatants who still hold weapons, under the in absentia procedure, and prisoners of war.

The 1949 Geneva Convention on the Treatment of Prisoners of War (GC III) sets a general rule that only military courts can try a prisoner of war (Article 84). But on the other hand, this convention also provides that prisoners of war can be tried by civilian courts, if [Ukraine] tries its soldiers for the same crimes with which prisoners of war are accused. 

This is the idea of the status of a prisoner of war. He is a soldier and he must be treated as a soldier, including in matters of punishment and justice. This logic is conveyed by the content of Article 82 of GC III “A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power”.

There are no specialised military courts in Ukraine, which would consider cases only concerning military personnel. Therefore, of course, any person, including military personnel, would be tried by civilian courts for the crimes provided for by the criminal code of Ukraine, including war crimes.

Mykola Pashkovskyi: In the case of criminal proceedings against Russian servicemen who are suspected of committing war crimes, there is no such requirement in absentia, because they are not prisoners of war, but by analogy the same procedure should be applied. That is, the civilian courts of Ukraine can try Russian servicemen in absentia, and this is in accordance with the provisions of international humanitarian law.

I note that the concern of the UN Human Rights Monitoring Mission in Ukraine is not the nature of the Ukrainian court (civilian or military), but the provision of general justice in proceedings in the absence of the accused, in particular, regarding the proper notification of the accused about such proceedings and their status.

Is it possible to judge military personnel while hostilities are ongoing? Is this not considered a violation of the Geneva Conventions?

Pashkovskyi: A violation of the Geneva conventions would be the inaction of Ukraine in the investigation of war and other most serious international crimes and prosecution of war criminals. But with observance of the “generally recognised guarantees of independence and impartiality" and with provision of "the defendant's rights and means of protection" in accordance with the requirements of the Geneva Convention on the Treatment of Prisoners of War of 1949, provided in particular by Art. 105 of the Convention  on the Treatment of Prisoners of War.

Accused Russian prisoners of war are guaranteed the mandatory participation of defence lawyers, a real, not illusory, trial process and the impartiality of Ukrainian judges. 

For example, the lawyer of Russian prisoner of war Vadym Shishimarin, accused in one of the first war crimes cases after the full-scale invasion of the Russian Federation, chose an active position during the trial. [He] presented arguments that tried to deny the validity of the accusation, and then filed an appeal against the verdict.  And as a result, the Kyiv Court of Appeals reduced the sentence imposed on Shishymarin from life imprisonment to 15 years in prison.

What are the disadvantages of  civilian court judges hearing war crimes cases? Can their verdicts be appealed in international courts?

Korotkyi: The disadvantages of considering war crimes cases may be due to the imperfection of legislation and the lack or insufficient level of experience of judges and other professional participants in the process (prosecutors and advocates) in this category of cases.

War crimes in Ukraine are classified under Article 438 of the criminal entitled "violation of the laws and customs of war". Due to the specifics of the legal construction of this article, its application requires in-depth knowledge of international humanitarian law and the provisions of relevant international treaties to which Ukraine is a party. 

The National School of Judges of Ukraine and NGOs conduct training to deepen the expertise of judges in handling this category of cases. Starting from 2014, prosecutors, investigators and advocates are also undergoing such specialised training. With the beginning of the full-scale invasion, the intensity and depth of such measures increased. Ukraine as a state and Ukrainian society is interested in objective and fair verdicts.

As for appeals, Russian prisoners of war convicted of war crimes, as well as any other persons sentenced by Ukrainian courts, can appeal to the European Court of Human Rights. Ukraine is a party to the convention on the protection of human rights and fundamental freedoms. Currently, there is no information about such complaints. None of the criminal cases on war crimes has yet passed the cassation appeal stage in the Supreme Court.

With more than 80,000 war crimes proceedings having been opened, how is the justice system in Ukraine coping with the challenges of processing such a large number of war crimes cases?

Pashkovskyi: There is a tangible need for technical assistance, including methodology for conducting similar investigations, tactics for carrying out individual investigative action - in particular, inspections of the scene of the incident [or] places of artillery and missile attacks, places of mass burials. [Also] collecting evidence from territories inaccessible to investigators due to military operations or occupation; carrying out complex investigative actions, for example, forensic medical examinations of corpses; or collection, big data research, the use of various information and analytical systems. 

Ukraine is being actively provided with international legal assistance in these categories of proceedings. The activities of the multilateral Joint Investigative Group (including the participation of the prosecutor's office of the International Criminal Court) under the auspices of Eurojust, foreign criminal investigations of war crimes committed by the Russian military in Ukraine, the participation of foreign experts and many other examples of international help strengthens the capacity of the Ukrainian justice system.

In the first cases, of course, the decisions caused numerous discussions regarding the qualification (regarding the argumentation of the violation of specific contractual norms of international humanitarian law), the proof of certain circumstances, the severity of the punishment) or the procedure (of compliance of certain national procedures with the standards of the Convention for the Protection of Human Rights and Fundamental Freedoms).

How can the Russian military be guaranteed a fair trial if they are prosecuted in a civilian court where there is no deep understanding of International Humanitarian Law?

Pashkovskyi:  Consideration of a case in a civilian court, that is, by judges who are not military personnel, provides a serious guarantee of the impartiality of such a court, in particular due to the lack of direct connection of judges with the armed forces of their country.

The last case when the military judges were part of an international criminal tribunal were the international military tribunals for Germany and Japan after World War II. In modern history, all international criminal tribunals and hybrid courts have been civilian. This proves that civilian judges are able to resolve issues related to the application of both the norms of international humanitarian law and the norms of other branches of international law.

Korotkyi:  Currently, I repeat, it is important to deepen the knowledge and experience of judges, prosecutors, advocates, and investigators to consider such cases. I am convinced that over time, the most expert base for the prosecution of war and other most serious international crimes will be concentrated in Ukraine.

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