National level
The debate about justice processes to deal with the impact of the armed conflict in Ukraine has been ongoing for over a decade. While armed hostilities broke out as early as 2014, the start of the war in public discourse is often referred to as 24 February 2022, when Russia launched its full-scale invasion of Ukraine.[7] However, national and international judicial bodies have been investigating the consequences of the occupation of Crimea and armed hostilities in the territory of certain regions in Donetsk and Luhansk oblasts for more than ten years now.
Within a few months of the outbreak of the armed conflict, Ukraine legally recognised Crimea as an occupied territory. On 15 April 2014, the Law of Ukraine ‘On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine’ was adopted. This law acknowledged Russia’s responsibility for these territories and denied any territorial rights that Russia might have had with regard to this region[8]. On 13 April 2014, an anti-terrorist operation was announced[9], which had an impact on the legal classification of the events taking place in Donbas[10]. Subsequently, the vast majority of alleged crimes committed during active hostilities were treated as acts of terrorism and representatives of the illegal armed groups of the self-proclaimed ‘LPR’ and ‘DPR’ were regarded as members of terrorist organisations. The legal regime of the anti-terrorist operation was sufficient for Ukrainian courts to substantiate their decisions under Article 258 (‘Act of terrorism’) and Article 258-3 (‘Creation of a terrorist group or terrorist organisation’) of the Criminal Code of Ukraine.
Alleged violations of the laws and customs of war have also been recorded since 2014, though in 2014 it was rather an exception than the rule that such acts were charged under Article 438 (‘Violation of rules and customs of war’) of the Criminal Code of Ukraine. For example, only one criminal offence was registered under this charge in 2014, while 1,499 offences were charged as acts of terrorism[11]. Furthermore, alleged war crimes were also recorded under provisions relating to ordinary crimes, such as Article 115 (‘Premeditated murder’), Article 146 (‘Illegal confinement’), etc. of the Criminal Code of Ukraine. It is impossible to identify them in the general statistics in order to determine the exact number of different legal classification and charges. One can only say that this was a fairly common practice, as such charges were later changed to Article 438 of the CCU following the full-scale invasion. However, Article 438 of the CCU was more commonly used by the Ukrainian authorities to classify the events taking place on the Crimean Peninsula.
From 2020 onwards an increase in the number of registered criminal proceedings specifically regarding the violations of the laws and customs of war can be seen, although this could not be said to have become widespread[12]. At the same time, the case law in the proceedings under Article 438 of the CCU had not been sufficiently developed during the eight years of the ongoing armed conflict. By the start of 2022, there were three court decisions in such cases, and only one of them was against the defendant who was actually detained and physically present in the courtroom. The other two cases were considered in absentia. Moreover, those were the cases against lower-level perpetrators who were the representatives of illegal armed groups of the self-proclaimed ‘LPR’ and ‘DPR.’
Russian soldiers who were captured and detained by Ukrainians as PoWs were prosecuted under Article 437 of the CCU (‘Planning, preparation and waging of an aggressive war’) in conjunction with Article 110 of the CCU (‘Trespass against territorial integrity and inviolability of Ukraine’) for crossing the border, being in the territory of Ukraine, participating in hostilities there and other provisions which concerned crossing of the border. In addition, the connection of the accused persons with the self-proclaimed ‘LPR’ and ‘DPR’ was categorised for charging purposes as an act of terrorism (Articles 258, 258-3 of the CCU). Later, throughout the duration of the ATO/JFO (Joint Forces Operation[13]), the convicted Russian soldiers were used as an ‘exchange fund’ for the detained Ukrainian soldiers and civilian hostages in Donbas, so they did not actually serve their court-ordered sentences.
The situation concerning the investigation and prosecution of crimes under international law changed dramatically after 24 February 2022. Since the start of Russia's full-scale invasion of Ukraine, virtually all acts committed in the armed conflict have been charged as violations of the laws and customs of war. In 2022 alone, 60,387[14] criminal offences received this legal classification, and there were 53 463 offences registered in this category in 2023[15]. The registered number of offences charged under Article 438 of the CCU has grown consistently since. The Office of the Prosecutor General provides daily updates on the number of the investigations opened on the official website[16]. At the same time, there is a growing number of investigations classified as initiating and waging aggressive war, in line with the interpretation of the crime of aggression within Ukrainian law. Since February 2022, law enforcement agencies also regularly charge certain acts amounting to crimes under international law as crimes against the foundations of national security, especially acts committed in the territories liberated from Russian control by Ukrainian forces.
Since the full-scale invasion, the number of Russian military personnel detained as prisoners of war has increased significantly. This has led to the Ukrainian authorities to open proceedings against certain military personnel who were in Ukraine’s custody. In February – March 2022, they were prosecuted under Article 110 (‘Trespass against territorial integrity and inviolability of Ukraine’), Article 332-2 (‘Illegal crossing of the state border of Ukraine’), and Article 437 (‘Planning, preparation and waging of an aggressive war’) of the CCU — in effect, for crossing the border and participating in armed hostilities. However, it is incontrovertible that the legal status of a prisoners of war provides for the guarantees to be granted to such persons in accordance with the Convention relative to the Treatment of Prisoners of War of 12 August 1949, protecting them from such prosecution[17]. As the Ukrainian authorities started to become aware of the combatant’s immunity under the international humanitarian law, the proceedings against Russian soldiers gradually started to be opened for the violation of the laws and customs of war[18]. By late 2023, 470 people had been indicted on war crimes related charges (served a notice of suspicion), 316 indictments had been sent to court, and 73 people had been convicted[19] — it should be noted that these figures include both cases against actual detainees and those prosecuted in absentia. Such quick results raise questions as to the quality of the investigations and evidence collected.
After 24 February 2022, Russian officials were prosecuted in absentia under Article 110 of the CCU (‘Trespass against territorial integrity and inviolability of Ukraine’), sometimes in conjunction with Article 437 of the CCU (‘Planning, preparation and waging of an aggressive war’). In particular, Russian officials faced charges for the recognition of the ‘independence’ of the self-proclaimed ‘L/DPR’ and voting for the accession of certain regions of Ukraine to the Russian Federation[20]. Courts in different regions of Ukraine are already delivering verdicts in such proceedings despite the ongoing discussions as to whether such individuals enjoy immunity from prosecution[21].
Following the full-scale invasion, the justice system of Ukraine has been trying to respond to society's demand for justice. Public trials in courts show that the state is primarily focused on punishing rather than achieving justice. A testament to that are the quick televised trials over low ranking Russian military personnel, formalistic approach to ensuring their defence[22]. Proving the individual criminal responsibility of accused persons to a level of “beyond reasonable doubt” for international crimes is a complex task that demands specific expertise, skills, and resources from all parties to the specific justice processes as well as perhaps most importantly – the willingness of the state to ensure high quality of fair independent and impartial justice for accused persons as well as – crucially – victims. Ensuring such a necessary quality of justice is undoubtedly challenging due to various objective reasons such as the ongoing armed conflict and due to the overall lack of safety and security experienced in different parts of Ukraine. In addition, significant legislative limitations (see below) have given rise to problematic issues with criminal procedures. The result of these challenges, coupled with a significant public pressure for justice has led to a situation where investigations can be said to have been rushed and trials unduly expedited at the expense of high quality (including scrupulously fair) justice for parties to the proceedings, as well as victims. The result of justice proceedings which do not meet the highest international standards calls into question the fairness and impartiality of Ukraine’s justice system and consequently its ability to deliver effective and meaningful justice to the victims of grave crimes.
Based the above, following conclusions and characteristics of the national justice system undertaking proceedings in relation to the the war in Ukraine can be identified:
- The armed conflict in Ukraine has been ongoing for over a decade, presenting significant and often unavoidable challenges to the pursuit of justice for crimes under international law. However, the Ukrainian justice system has not yet effectively or efficiently adapted to these challenges in its legal and judicial system which have arguably existed before 2014. Rather the authorities have adopted an approach which has sought to conform or “make-do” with the current situation.
For instance, the Ukrainian authorities have largely maintained the same approach as that used for investigating and prosecuting “ordinary” crimes in cases of crimes under international law. This means that violations of laws and customs of war are considered without taking into account their specific characteristics.
- The immense impact of the armed conflict on the Ukrainian justice system has served to paralyse the justice system as a whole as well as hinder the enforcement of judgements in cases of ordinary crimes which continue to be committed on a daily basis.
- The national legal framework is not currently equipped to address the challenges posed by the armed conflict or to undertake investigations and prosecutions into all relevant international crimes which meet international standards. Present amendments to certain laws and regulations appear to be primarily reactive in nature and fail to tackle the more fundamental overall transformation to the Ukrainian legal framework which is required as a matter of priority. On the other hand, the piecemeal process of making legislative changes does not consider how these changes in themselves might affect current investigative and prosecutorial practices, as well as ongoing justice processes which in turn could lead to further issues for practitioners and the judicial authorities as a result.
- The Ukrainian national legal framework currently primarily directs law enforcement agencies towards investigating individual and direct perpetrator offences. However, from 2025 onwards, greater attention has been paid to the systematic approach to investigation. Following the incorporation of command responsibility provisions into the Criminal Code of Ukraine, active consideration is being given to building cases not only against direct perpetrators of international crimes but also against commanding officers. International organisations supporting law enforcement and justice bodies have conducted thematic training on these issues, which has also contributed to the shift in practical approaches. At the same time, the investigation of international crimes requires further development of practical approaches, in particular towards the more systemic facts analysis — including, for example, the identification of patterns and systematic nature of violations, the examination of similar acts across different regions, the establishment of command and control structures, and related matters. The effectiveness of these processes will depend on the introduction of the necessary amendments to the Criminal Procedure Code of Ukraine governing the collection, storage, and verification of evidence.
- It appears that the future of Ukrainian national justice will involve holding trials in absentia for the crimes under international law. Indeed, the experience gained from more than ten years of the ongoing armed conflict in Ukraine demonstrates that these types of proceedings are the ones most frequently used by the Ukrainian justice system. However, it remains to be seen whether this approach is capable of ensuring that the perpetrators are actually brought to justice. Presently, such trials serve as tools for producing statistics and creating a false impression that Ukraine is actively administering justice, while de facto the needs of victims are often overlooked by the authorities and courts, and perpetrators of grave crimes continue to evade accountability. In more than decade of the armed conflict in Ukraine, there has not been a single documented instance, where a sentence issued as result of the trial in absentia has been carried out and the perpetrator detained.
- The number of registered proceedings stands in stark contrast to the number of available law enforcement and judiciary personnel involved in international crimes cases. According to unofficial figures, in most frontline regions one prosecutor or investigator is responsible for approximately 2,000 criminal proceedings. This level of caseload, combined with a practice of working "for the sake of statistics," frequently results in compromised investigation quality — as evidenced by court decisions in which defendants have been acquitted due to insufficient evidence of their guilt[23]. Furthermore, the level of social protection and guarantees afforded to prosecutors working in frontline regions does not differ from that of those handling ordinary criminal proceedings in comparatively safe areas. By contrast, investigators of the National Police of Ukraine and the Security Service of Ukraine benefit from additional guarantees by virtue of their work on cases in dangerous locations. This affects staff motivation and willingness to remain and work in high-risk areas on this category of cases, resulting in staff turnover and/or personnel shortages.
- Due to the large volume of proceedings registered following the full-scale invasion, the justice system's attention has been focused entirely on investigating those events. The internal working practices of law enforcement bodies do not, in practice, prioritise events in Crimea and Donbas that occurred prior to 24 February 2022. Those events have not been fully investigated, despite being a critical stage and a root cause of the developments that led to the escalation of the armed conflict. Impunity for the most serious international crimes committed between 2014 and 2022 may have created the conditions for their continued commission after 2022, reflecting a consistent policy on the part of the Russian Federation. In practice, this approach only demonstrates that the interests and rights of victims of those crimes remain outside the priorities of the justice system.
