Kyiv/ The Hague
On 17 September 2020, the Parliament of Ukraine (Verkhovna Rada) passed in its first reading draft law no. 2689 “On amendments to certain legislative acts on the Enforcement of International Criminal and Humanitarian Law”, with 271 votes in favor out of 347 Members present. The Bill will thus proceed to its second - and under the standard procedure - final reading, by the end of 2020.
This important development represents the culmination of efforts carried-out by PGA and various domestic and international NGOs and experts. PGA has been actively involved in supporting the drafting process of the Bill, which was authored by the Chairperson of the Law Enforcement Committee, Mr. Denys Monastyrskyi (PGA Member), and mobilizing legislators to galvanize political will in support of the Bill.
To highlight the importance of harmonizing the criminal code of Ukraine with international criminal and humanitarian law, PGA has been actively engaging with relevant stakeholders during events and field missions. In November 2018, the Verkhovna Rada hosted PGA’s 10th Consultative Assembly of Parliamentarians for the International Criminal Court and the Rule of Law (CAP-ICC) with over 200 participants in attendance. Following the July 2019 general elections in Ukraine, PGA convened an expert discussion with its partners, the Center for Civil Liberties and the Ukrainian Legal Advisory Group, under the aegis of the Committee on Foreign Policy of the Verkhovna Rada, wherein parliamentarians engaged with legal experts, civil society representatives, and victims of international crimes. As a result of the meeting, legislators requested that PGA provide them with technical assistance on the new draft law, which has been designed to ensure complementarity between the primary exercise of jurisdiction by domestic courts and the residual jurisdiction of the International Criminal Court (ICC) in relation to the situations that Ukraine decided to refer to the jurisdiction of the ICC under the Rome Statute since 2014.
In December 2019, PGA Member, Mr. Hryhoriy Nemyria, MP addressed the 18th Assembly of States Parties to the Rome Statute, sharing Ukraine’s goal to pass legislation to advance the fight against impunity, which is achieved by the current draft law. Soon afterwards, on 27 December 2019, said law was registered in the new Parliament as Bill 2689.
In February 2020, two days after Bill 2689 was approved by the Law Enforcement Committee, PGA participated in a Roundtable organized by its partner NGO, Center for Civil Liberties, and the Law Enforcement Committee. The Roundtable focused on the relevance of the implementation of international criminal and humanitarian law provisions into the Criminal Code of Ukraine, and was attended by over 120 participants, including members of the Ukrainian Parliament.
The Bill 2689
The adoption of the Bill is crucial as
even after six years of ongoing armed conflict, Ukraine still lacks comprehensive
legalinstruments to ensure criminal accountability for the crimes
committed. The current criminal of Ukraine code lacks provisions on crimes against
humanity and the definition of war crimes does not fully meet the requirements
of international law. Furthermore, as only international crimes are exempt from
statutory limitations, the accurate qualification of these actions today is
crucial for bringing those responsible to justice, even in a distant future.
It is paramount to underscore that international crimes allegedly committed in Ukraine since 2014 are punishable conduct under International Law, given the fact that relevant norms criminalizing such conduct date back to the London Charter of the “Nuremberg Tribunal” (1945), the Geneva Conventions (1948) and several subsequent instruments that were codified by the Rome Statute of the ICC (1998) and its amendments (2010). This reality is reflected in the definition of the principle of legality in Article 15 of the International Covenant on Civil and Political Rights (ICCPR – 1966) and Article 7 of the European Convention on Human Rights (ECHR – 1950): which stipulate that “no one shall be held guilty of any criminal offence (…) which did not constitute a criminal offence under national or international law at the time when it was committed(…)” which “shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations”.
Ukraine is a party to both the ICCPR and the ECHR. Hence, the retrospective – not retroactive – application of Bill 2689 to conduct that is already criminalized under International Law (either through the international instruments Ukraine has ratified, or as a part of customary International Law binding on all international community) is not violation of the principle of legality (nullum crimen nulla poena sine lege): the Bill does not create new crimes. Rather, it has a jurisdictional function: it empowers Ukrainian judges and prosecutors to investigate, prosecute and adjudicate on conduct previously criminalized in international law that, as such, may be already prosecuted by competent international jurisdictions or other national jurisdictions.
The implementation of international humanitarian law aligns with the commitments of Ukraine stemming from various international and European instruments, while being crucial in enabling the country to address adequately its current situation of the ongoing conflict. Following this important step towards achieving accountability for international crimes committed in Eastern Ukraine and the occupied territory of Crimea, the PGA National Group in Ukraine, alongside international and domestic legal experts and human rights activists, will continue to advocate for the Bill to be approved into law by the Parliament.
The preliminary drafting process of the Bill 2689, sponsored by the Chair of the Law Enforcement Committee, Mr. Denys Monastyrskyi, benefitted from the contributions of not only the PGA Secretariat, but also many domestic and international experts. These include the Centre for Civil Liberties; Mr. Konstantin Zadoya (Taras Shevchenko National University of Kyiv); Mr. Anton Koryneych (Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea); leadership members of the Crimean Office of the Prosecutor; Ms. Viktoryia Mozgova (Ukrainian Institute for the Future) and Mr. Scott Martin (Global Rights Compliance).