National implementation of international criminal law
Ukraine
Domestic Legislation | Resources and Links
Crimes Chapter XX of the Criminal Code of Ukraine of 2001 provides as follows in respect of Criminal Offenses against Peace, Security of Mankind and International Legal Order:
Crime of Aggression
Aggression is punished in Article 437 of the Criminal Code of Ukraine:
Article 437. Planning, preparation and waging of an aggressive war
Article 436 of the Criminal Code of 2001 punishes war propaganda. A new Article 436-1 was added to the Code by means of Law No. 735-VII of 28 January 2014, as amended by Law No. 317-VIII of 09 April 2015, to punish the production, distribution and public use of communist and national-socialist symbols.
1. Planning, preparation or waging of an aggressive war or armed conflict, or conspiring for any such purposes, -
shall be punishable by imprisonment for a term of seven to twelve years
2. Conducting an aggressive war or aggressive military operations, -
shall be punishable by imprisonment for a term of ten to fifteen years."
Criminal Code of Ukraine. (2001, with amendments up to 23 September 2010).
OSCE Office for Democratic Institutions and Human Rights. [ENG]
[Please note that an updated version of the Criminal Code in Ukranian can be found under the Resources and Links section below]Crimes Against Humanity
No specific provision. However, according to Article 9 of the Constitution of Ukraine of 1996, which deals with international law, treaty ratification and legal status of treaties, "International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine."
Ukraine became a state party to the Convention for the Protection of all Persons from Enforced Disappearance on 14 August 2015, whose Article 5 stipulates the following:"The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law."
Ukraine (the Ukrainian Soviet Socialist Republic at that time) also ratified the International Convention on the Suppression and Punishment of the Crime of Apartheid on 10 November 1975, whose Article I reads:"Article I
Ukraine (the Ukrainian Soviet Socialist Republic at that time) also ratified the Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity on 19 June 1969.
1. The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.
2. The States Parties to the present Convention declare criminal those organizations, institutions and individuals committing the crime of apartheid."Genocide
Genocide is punished in Article 442 of the Criminal Code of Ukraine:
"Article 442. Genocide
1. Genocide, that is, an act committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group by killing the members of such group or causing serious bodily harm to them, inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to decrease or prevent births within the group, or forcibly transferring children of the group to another group, -
shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
2. Public calls to genocide, and also making any materials with calls to genocide for the purpose of distribution, or distribution of such materials, -
shall be punishable by arrest for a term up to six months, or imprisonment for a term up to five years."
Criminal Code of Ukraine. (2001, with amendments up to 23 September 2010).
OSCE Office for Democratic Institutions and Human Rights. [ENG]
[Please note that an updated version of the Criminal Code in Ukranian can be found under the Resources and Links section below]War Crimes
War crimes are punished in Article 438 of the Criminal Code of Ukraine:
"Article 438. Violation of the Laws and Customs of War
Articles 439 and 400 of the Criminal Code punish the use of weapons of mass destruction and their development, production, acquisition, storage, sale or transportation. Article 445 punishes the illegal use of the emblems of the Red Cross, the Red Crescent and the Red Crystal and Article 447 the recruitment of mercenaries.
1. Cruel treatment of prisoners of war or civilians, deportation of civilian population for forced labor, pillage of national treasures on occupied territories, use of methods of warfare prohibited by international law, or any other violations of the laws and customs of war recognized by international agreements passed by the Verkhovna Rada (of Ukraine, as well as ordering the commission of any such actions, -
shall be punishable by imprisonment for a term of eight to twelve years.
2. The same acts accompanied with willful killing, -
shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment."
Criminal Code of Ukraine. (2001, with amendments up to 23 September 2010).
OSCE Office for Democratic Institutions and Human Rights. [ENG]
[Please note that an updated version of the Criminal Code in Ukranian can be found under the Resources and Links section below]
Related documents:
Resolution No. 1157 establishing an Interdepartmental Commission for the Implementation of International Humanitarian Law, 21 July 2000. (Replaced by Resolution No. 329 establishing the Interdepartmental Commission on the Application and Implementation of International Humanitarian Law in Ukraine, 26 April 2017).
International Committee of the Red Cross. [ENG]
[The original text of the Resolution No. 329 establishing the Interdepartmental Commission on the Application and Implementation of International Humanitarian Law can be found under the Resources and Links section below.]
Resolution approving a procedure to produce, issue and register identity cards for medical personnel using the Red Cross emblem. 12 June 2000.
International Committee of the Red Cross. [ENG]
Loi sur la symbolique de la Croix-Rouge et du Croissant-Rouge en Ukraine, 08 July 1999. (Law about symbolics of the Red Cross, Red Crescent, the Red Crystal in Ukraine, 1999).
International Committee of the Red Cross. [FRA]
Jurisdiction ➤ Articles 7 and 8 of the 2001 Criminal Code provide the following:
"Article 7. Applicability of the law on criminal liability for crimes committed by citizens of Ukraine or stateless persons outside Ukraine
1. Citizens of Ukraine and stateless persons permanently residing in Ukraine, who have committed offenses outside Ukraine, shall be criminally liable under this Code, unless otherwise provided by the international treaties of Ukraine, the consent to the binding effect of which has been granted by the Verkhovna Rada of Ukraine.
2. Where the persons referred to in the first paragraph of this Article underwent criminal punishment for the committed criminal offenses outside Ukraine, they shall not be criminally liable for these criminal offenses in Ukraine."
Article 8. Applicability of the law on criminal liability for crimes committed by foreigners or stateless persons outside Ukraine
1. Foreign nationals or stateless persons not residing permanently in Ukraine, who have committed criminal offenses outside Ukraine, shall be criminally liable in Ukraine under this Code in such cases as provided for by the international treaties, or if they have committed any of the special grave offenses against rights and freedoms of Ukrainian citizens or the interests of Ukraine as prescribed by this Code.
2. Foreign nationals or stateless persons not residing permanently in Ukraine, who are outside Ukraine, shall be criminally liable in Ukraine under this Code if they have committed, in partnership with officials who are citizens of Ukraine, any of the crimes provided for under Articles 368, 368.3, 368.4, 369 and 369.2 of this Code or if they offered, promised, provided illegal benefit to such officials, or accepted the offer, the promise of illegal gain, or such gain from them."
Criminal Code of Ukraine. (2001, with amendments up to 23 September 2010).
OSCE Office for Democratic Institutions and Human Rights. [ENG]
[Please note that an updated version of the Criminal Code in Ukranian can be found under the Resources and Links section below]
➤ Miscellaneous provisions of the 2001 Criminal Code applying to the crime of aggression, genocide and war crimes:
Non-applicability of statutory limitations to crimes against the peace and security of mankind provided for under Articles 437-439 and part one of Article 442: Articles 49(5) and 80(6).
Life imprisonment for crimes against the peace and security of mankind provided for under Articles 437-439 and part one of Article 442: Article 68(4)
Application of measures of criminal nature to legal persons when the crime of aggresion, genocide or war crimes were perpetrated by an authorized person on behalf of the legal person: Articles 96(1)(4) and 96.
See:
Criminal Code of Ukraine. (2001, with amendments up to 23 September 2010).
OSCE Office for Democratic Institutions and Human Rights. [ENG]
[Please note that an updated version of the Criminal Code in Ukranian can be found under the Resources and Links section below]
➤ Article 9 of the Constitution of Ukraine of 1996, dedicated to international law, treaty ratification and legal status of treaties, stipulates:"International treaties that are in force, agreed to be binding by the Verkhovna Radaof Ukraine, are part of the national legislation of Ukraine.
The conclusion of international treaties that contravene the Constitution of Ukraineis possible only after introducing relevant amendments to the Constitution of Ukraine."
International Tribunals
Agreement between the United Nations and Ukraine on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia. 07 August 2007.
United Nations, International Criminal Tribunal for the former Yugoslavia. [ENG]
International Criminal Court
Rome Statute of the International Criminal Court: Ukraine signed the Rome Statute of the International Criminal Court on 20 January 2000. Ukraine is not a state party to the Rome Statute of the International Criminal Court.
Official summary of Opinion No. 3-v/2001 by the Constitutional Court of Ukraine on the Conformity of the Constitution of Ukraine to the Rome Statute of the International Criminal Court (the Rome Statute case):"Conclusions:
The Rome Statute of the International Criminal Court, signed on behalf of Ukraine on 20 January 2000, submitted to the Verkhovna Rada of Ukraine for rendering consent on thereof compulsion, is hereby recognized non-conforming to the Constitution of Ukraine, to the extent concerning the provisions by which "the International Criminal Court ... complements the national criminal justice authorities".
Brief description:
The subject of the right to constitutional petition - the President of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to render conclusion as to conformity of the Rome Statute of the International Criminal Court (hereinafter referred to as “the Statute”) to the Constitution of Ukraine.
According to Article 124.1 of the Constitution of Ukraine, the justice in Ukraine shall be provided exclusively by courts. Delegating the functions of the courts, and also assignment of such functions by different authority or official is not allowed (Article 124.1). Also prohibited is organization of extraordinary and special courts (Article 125.5). Article 1 of the Statute, indicating that the International Criminal Court shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, at the same time emphasizes, that the Court shall be complementary to national criminal jurisdictions. Complementary to the national system of justice nature of the International Criminal Court is concretized in a number of different articles of the Statute.
This essentially distinguishes the International Criminal Court from international courts of justice, in particular the European Court of Human Rights, the right to apply to which for protection of the rights and freedoms is specified in Article 55.4 of the Constitution of Ukraine. No possibility of such complementing of the judicial system of Ukraine is stipulated by Chapter VIII Justice of the Constitution of Ukraine.
By their nature, the International Criminal Court is an international and legal judicial institution established with the consent of the member states of the constituent document - Statute - whose provisions are based on the principle of respect for human rights and freedoms. Therefore, the International Criminal Court may not be referred to extraordinary and special courts whose establishment is not allowed according to Article 125.5 of the Constitution of Ukraine.
According to Article 27 section 1 of the Statute, this Statute shall apply equally to all persons without any distinction based on official capacity. The provisions of the Statute do not prohibit establishment and do not cancel the provisions of the Constitution of Ukraine regarding immunity of the people’s deputies of Ukraine, the President of Ukraine and judges, and only proceed from the fact that immunity of such persons concerns national jurisdiction and may not bar the Court from its jurisdiction over such those of them who committed crimes stipulated by the Statute.
In conformity with the Statute’s fundamental (Article 17) principle of complementarity, the International Criminal Court shall not undertake proceedings if the accused has already been convicted with observance of the proper legal procedure by different court (including but not limited to the national court) for actions prohibited by the Statute (Article 20).
Establishment of the responsibility for committing of the overwhelming majority of crimes stipulated by the Rome Statute, is an international legal obligation of Ukraine according to other international and legal documents which have become binding upon our country (many of them - long before the Constitution of Ukraine took effect).
Foreign policy activities of Ukraine are based upon on universally recognized principles and norms of the international law (Article 18 of the Constitution of Ukraine). One of such principles is the principle of diligent performance of international obligations which came to existence in the form of international and legal pacta sunt servanda practice event at the early stages of statehood development, and, today, is embodied in a number of international treaties.
The Statute effectively reproduces the overwhelming majority of the provisions, which define crimes, contained in the conventions to which Ukraine joined. This is in completely conformity to the international and legal obligations of Ukraine. In conformity with Article 25.2 of the Constitution of Ukraine, the citizens of Ukraine may not be extradited to different state. This means that the interdiction concerns only national rather than international jurisdiction. This is intended to guarantee fair judicial proceedings and justice and legitimacy of punishments for the citizens of Ukraine.
The International Criminal Court may not be equated to foreign court. The purpose which explains interdiction of extradition of the citizens from one state to another, is reached in the International Criminal Court by application of the relevant provisions of the Statute developed (or approved) by the member states. These provisions are based on international conventions on human rights, and Ukraine has already given consent to be bound by such conventions.
Therefore, the constitutional provisions as to interdiction of extradition of the citizens of Ukraine (even in view of the broad interpretation of the concepts "extradition") may not be considered in separateness from the international legal obligations of Ukraine. The international treaties, the consent to be bound by which was given by the Verkhovna Rada of Ukraine, become a part of the national legislation Ukraine. This is how the national sovereignty as to distribution of the international courts of justice jurisdiction on the territory Ukraine is assured (provided, that the provisions of their statutes do not contradict the Constitution of Ukraine). Therefore joining of Ukraine to the statute will not contradict the requirements laid down in Article 75 and Article 92.14 of the Constitution of Ukraine.
While Article 120 of the Statute prohibits amendments to this international treaty, its Articles 103, 124 allow the member states to make declarations, which exclude arising of obligations for them under individual provisions of the Statute for certain period of time, or set forth special conditions for cooperation in the framework of this international treaty.
This makes possible limitation of the rights and freedoms of the citizens of Ukraine in connection with serving sentences subject to another, different from that specified in the laws of Ukraine, procedure is removed based on made by the state (Ukraine, in this case) declaration on readiness to receive citizens, sentenced by the International Criminal Court, for serving the sentence in their countries. Except for that, it is necessary to consider also the provisions laid down in Article 103.3 of the Statute, which provide that the International Criminal Court, determining the state, in which the person convicted by the Court may serve the sentence, shall consider, among other things, the opinion of the person, on which the sentence was made, his/her citizenship, and also the standards of treatment for the imprisoned recognized by the international treaties.
Article 121.1 of the Constitution of Ukraine sets forth that support of the state charges in the court is delegated to the Office of Prosecutor of Ukraine, which constitutes the unified system. According to the statute, the International Criminal Court has a separate authority of the Office of the Prosecutor responsible for obtaining justified information on crime eligible to the jurisdiction of the court, for their study and implementation of the investigations and criminal prosecution in the Court. Settling this dispute, the Constitutional Court of Ukraine proceeds, first, from the fact that support by the Office of Prosecutor Ukraine of the state charges in the court for the purposes of Article 121 of the Constitution of Ukraine concerns internal rather than international and legal jurisdiction. Secondly, according to Article 42(4) of the Statute, the Prosecutor providing the criminal prosecution in the Court and the function of proving the guilt of the accused, shall be elected by the member states of the Statute, and, their declaration of intent is not limited here. Therefore, the relevant provisions of the Statute, which concern the support of the charges in the International Criminal Court, may be implemented in the Law of Ukraine without making amendments to the Constitution of Ukraine."
[Source: Official Summary of Opinion No. 3-v/2001, Constitutional Court of Ukraine, 11 July 2001]
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