Implementation and Interpretation of The Definitions of International Crimes in The National Jurisdiction of Ukraine


 
 
 The globalization of crime incised a social reality where crimes can be committed across national borders and have an impact not only on the people of a country, but on the international community. Theoretically, there are several terms that are known to describe acts which are called crimes under international law, namely international crimes, transnational crimes, and national crimes with international dimensions. International crimes are crimes that threaten both directly and indirectly to international peace and security, affect many countries and have universal jurisdiction. The qualification of international crimes refers to crimes regulated in the Rome Statute of the International Criminal Court (Rome Statute circulated as document A / CONF.183 / 9 of 17 July 1998), namely crimes of genocide; crimes against humanity; war crimes; and crime of aggression. Transnational crimes are transnational crimes regulated in international conventions.
 
 
 
 

The globalization of crime incised a social reality where crimes can be committed across national borders and have an impact not only on the people of a country, but on the international community. Theoretically, there are several terms that are known to describe acts which are called crimes under international law, namely international crimes, transnational crimes, and national crimes with international dimensions. International crimes are crimes that threaten both directly and indirectly to international peace and security, affect many countries and have universal jurisdiction. The qualification of international crimes refers to crimes regulated in the Rome Statute of the International Criminal Court (Rome Statute circulated as document A / CONF.183 / 9 of 17 July 1998), namely crimes of genocide; crimes against humanity; war crimes; and crime of aggression. Transnational crimes are transnational crimes regulated in international conventions.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003). Antonio Cassese, Paolo Gaeta, John R.W....

Introduction: Today, a new concept of understanding international criminal law as an independent branch establishing the substantive legal grounds for recognising a particular act as criminal is being developed. Such acts certainly include war crimes (criminal violations of the laws and customs of warfare). Meanwhile, there is an urgent need to develop a categorical concept of “war crime” in international criminal law, to determine the place of such crimes in the system of crimes against peace and security of mankind, and to resolve several theoretical problems of the substantive legal basis for establishing international criminal liability for war crimes. In addition, despite the constitutional provisions on the primacy of international law over domestic law, the issue of the degree of compliance of national criminal law with the provisions of international law in the area of regulation of liability for war crimes remains unresolved. Objective: The study aims to find opportunities to develop effective mechanisms for classifying war crimes in the current war in Ukraine and to bring perpetrators to justice. The rules of international law are highly developed, primarily reflected in the availability of a broad and detailed list of acts recognised as international crimes. According to the amendments to the Rome Statute that added war crimes to the International Criminal Court (ICC) jurisdiction, a state must confirm the ICC’s jurisdiction over aggression for its citizens to be tried for the crime. Results: However, Russia has not done so. Due to this limitation, there are frequent calls for establishing a separate tribunal to prosecute Russian officials for aggression. However, implementing these calls still faces problems due to insufficient precedents. At the same time, the list of actions that can be considered violations of the laws and customs of war does not necessarily have to coincide with the list in Article 8 of the Rome Statute or the list of severe violations of international humanitarian law under the Geneva Convention or the First Additional Protocol.

Excerpt of table of contents: Chapter I International Criminal Tribunals: Distinctions and Main Features 1. Values and Goals of ICTs 2. The ICTY and ICTR 3. The Origin and Character of the ICC 4. The Emerging Concept of ad hoc Internationalized or Mixed Courts 5. Conclusions: The Legitimacy of ICTs: Selective Enforcement Mechanisms? Chapter II Defining International Crimes 1. Introduction 2. The Proliferation of the Crime of Genocide within the Law of the Tribunals 3. Proliferation of ICTY-ICTR Case Law on the Crime of Genocide 4. The ICTY-ICTR Statutory and Jurisprudential Elements of the Crime of Genocide 5. Crimes against Humanity before ICTs 6. The Concept of War Crimes before ICTs Chapter III The ICC Crime of Aggression: Proliferation or Politicization of International Criminal Law? 1. Introduction 2. Defining the Crime of Aggression 3. Pitfalls of the Jurisdictional Mechanism on the Crime of Aggression 4. The Crime of Aggression and its Impact on Liability Modes 5. Implementation of the Crime of Aggression at Domestic Level 6. Conclusion Chapter IV Jurisdiction and Complementarity 1. Introduction 2. Jurisdiction 3. Admissibility Chapter V Criminal liability Principles Envisioned by ICTs 1. Introduction: Emergence of General Principles 2. Actus Reus and Mens Rea 3. Liability Modes in International Criminal Law Chapter VI International Criminal Law Defenses 1. Introduction 2. Procedural Defenses 3. Duress and Necessity as Defenses before ICTs 4. The Limited Scope of the Defense of Superior Orders under the Law of ICTs 5. The Defenses of Mental Insanity, Diminished Responsibility and Intoxication before ICTs 6. The Jurisprudential and Statutory Self-Defense under the Laws of ICTs 7. Alibi Defenses Chapter VII General Principles of Criminal Evidence envisioned by ICTs 1. Procedural Nature and Characteristics of Proceedings before ICTs 2. Contemporary Procedural Pre-Trial Aspects of ICTs 3. Contemporary Procedural Trial Aspects of ICTs Chapter VIII Principles of Criminal Evidence before ICTs 1. Requisite Standards of Proof before ICTs 2. Requisite Standards of Proof before ICTs 3. Disclosure of Evidence 4. Admissibility of Evidence 5. Presentation and appreciation of evidence by ICTs Chapter IX Due Process Principles before ICTs 1. Introduction 2. Definition of Due Process Rights Relevant to ICTs 3. The Influx of Common Standards of Due Process to ICTs Chapter X International State Cooperation with ICTs: Obtaining Evidence Abroad 1. International State Cooperation with ICTs Obtaining Evidence Abroad Chapter XI The International Criminal Court within the Geopolitical World Order 1. Introduction 2. Geopolitical Effect of ICC Prosecutions 3. The Position of Superpowers vis-a-vis the ICC 4. Conclusion Chapter XII Trials in Absentia 1. Introduction 2. Trials in Absentia

The article is devoted to the analysis of the provisions of the 2023 Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes. The analysis of the provisions of the Convention is important for assessing the capacity of existing mechanisms to respond to international crimes committed in Ukraine. Therefore, the purpose of the article was to assess the provisions of the Convention, its correlation with the legislation of Ukraine, in the aspect of prosecution those guilty of international crimes against Ukraine and the Ukrainian people. The article examines in detail: the scope and purpose of the Convention; obligations of criminalization; obligation to establish jurisdiction; principle «aut dedere aut judicare»; areas of mutual legal assistance; provisions regarding victims. It is indicated that the Convention is an important step in the development of prosecution mechanisms for war crimes. Its unique feature is the presence of norms of international criminal law, despite the name, which concerns only international cooperation, which is not at all characteristic of other conventions on mutual legal assistance. Unfortunately, however, some war crimes and crime of aggression will require additional notification of the application of the Convention, which again reduces its potential positive impact on prosecutions for international crimes. The analysis of the provisions of the Convention allows us to reasonably assume that in the event of its ratification: there will be a need to improve the norms of the Criminal Code of Ukraine regarding the effect of the criminal law on persons and universal jurisdiction; will require updating the norms of the Criminal Procedure Code of Ukraine regarding the provision of international legal assistance; additions to the provisions of the Criminal Procedure Code of Ukraine regarding extradition in aspects of the «aut dedere aut judicare» principle will be required; will require verification on the issue of compliance of the Criminal Procedure Code of Ukraine with the Convention regarding the participation of victims in criminal proceedings. In addition, the issue of regulation of restitution, compensation and rehabilitation and other forms of compensation for victims of international crimes will need to be resolved.

International criminal law has experienced a tremendous development over the past few decades. The Nuremberg Trials laid the foundations for individual responsibility for international crimes. The greatest success in the following development is the establishment of the International Criminal Court (ICC) by the Rome Statute of 1998. Operational since 2002, the Court is to try cases of the most serious crimes of concern to the international community, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression (Art. 5 of the Statute). The exercise of jurisdiction over the latter, however, was postponed in Rome. Only after a provision was adopted defining the crime of aggression and the rules governing the jurisdiction of the Court the ICC could exercise said jurisdiction. It was only in 2010 when the Review Conference of the Rome Statute, held in Kampala, Uganda, adopted the amendments on the crime of aggression. The long and intense academic, but also political debate that preceded the Review Conference reflected the unresolved issues that led to the original postponement in 1998, especially regarding the relationship of the UN Security Council and the ICC in determining and trying cases of aggression. It was all the more surprising that in the last minute, a consensus was reached. But this consensus came with a price. The present article analyses the proposed amendments as adopted in Kampala. While undoubtedly a great achievement both the definition and the rules governing the jurisdiction suffer from some uncertainties. The definition of the crime of aggression builds on the well-established definition of an act of aggression as it appears in the relations among States. This, however, falls short of capturing the modern phenomena attached to acts of aggression, especially with regard to non-state actors. Secondly, in elaborating the Courts jurisdiction, the States at the Review Conference succeeded in guaranteeing the Courts independence. The Security Council will not act as a filter to determine which cases of aggression may appear before the Court. Meanwhile, other provisions on the jurisdiction reveal the political price that had to be paid. The position of States not party to the Rome Statute and the implementation of an opt-out mechanism for the amendments provide for potentially large exceptions to the Courts general jurisdiction. It is now the responsibly of the States, but also of the international community as a whole, to prevent that the crime of aggression remains a paper tiger.

Today, the boundaries of international crime involving states and transnational organized crime are slowly blurring, and as a result, the number of international crimes is steadily growing. The article analyzes two key groups of crimes: crimes indicated in the Rome Statute and transnational crimes under international conventions. This article is based on the analysis of the main groups of crimes: the first group of international crimes committed with state actors, which includes crimes against humanity, war crimes, crimes of aggression, crimes of genocide; and the second group, crimes committed by criminal groups organized in more than one country with the "international" or "transnational" character of such acts. The authors emphasize the norms of international law, according to which the International Criminal Court, together with international criminal tribunals, have jurisdiction over a small range of key international crimes, including genocide, war crimes and crimes against humanity, aggression, committed by state officials. The main objective of this research is to compare the mechanism for investigating crimes in the jurisdiction of international criminal tribunals and the International Criminal Court, together with the national procedure for investigating transnational crimes, through the ratification of international conventions and the establishment of the International cooperation. The article was made with the following methods: induction, deduction, analogy, as well as historical, dialectical and formal legal methods.

The article is devoted to the problems of determining the mechanisms of prosecution for crimes committed by the totalitarian regime during the Holodomor-genocide (other artificial famines) in Ukraine and the conduct of the Russian-Ukrainian war in modern conditions. The need to create a special mechanism of justice to prosecute persons involved in crimes, to conduct an investigation by the International Criminal Court in accordance with the Rome Statute is argued. Attention is focused on the role of documenting the facts of the commission of international crimes (the crime of aggression, the crime of genocide, crimes against humanity, war crimes), collecting and submitting evidence of the commission of these crimes to the court. The importance of the application of special and forensic knowledge in proving the facts of the commission of crimes by the totalitarian regime is determined. The role of non-governmental, human rights organizations in helping law enforcement agencies to form the evidentiary base of crimes is emphasized. The position is expressed regarding the need to develop certain algorithms, rules, questionnaires, methods for collecting, recording and researching evidentiary information. The importance of researching information about committed international crimes in electronic sources, recording digital evidence is analyzed. The possibility of using the data of new forensic areas in the formation of evidentiary information: digital and nuclear forensics is considered.

This article examines Tanzania’s ability to domestically prosecute international crimes following its ratification of the Rome Statute. The Article also analyses the possibility of relying on the provisions of customary international law to prosecute these crimes in the absence of domestication of the Rome Statute. The article probes into the reasons for the non-domestication of the Statute, highlights the strengths and weaknesses of the current legal framework to prosecute international crimes, and proffers a set of recommendations for the identified legal flaws. It finds that although Tanzania is a State Party to the Rome Statute, it has not yet domesticated the Statute. Despite the absence of a direct legal obligation to domesticate or nationally incorporate the provisions of the Rome Statute, the articles states that it is fundamental that Tanzania indicates its ability and willingness to prosecute international crimes within its domestic legal framework. While there are two approaches to prosecuting crimes of the Statute at the national level, this article has discussed the effectiveness of Tanzania’s legal framework to prosecute those crimes through the ordinary crimes approach. It contends that while some of the core crimes can be prosecuted domestically and through customary international law, the current domestic legal framework in Tanzania is incapable of prosecuting the Statute’s core crimes effectively in the absence of domestication or adoption of serious legal amendments in the relevant domestic legislation. Keywords: Customary International Law - International Crimes - International Crimes Approach - Ordinary Crimes Approach - Penal Code - Rome Statute

Along with the intensive development of international criminal law, the role of the jurisdiction whose primary connecting factor does not focus on protection of individual state's vital interests is becoming more important. The concept refers to universal jurisdiction which is not based upon traditional grounds of jurisdiction i.e. upon principle of territoriality, principles of active and passive personality and protective principle. Instead, it builds upon the interests and needs of the entire international community in preventing certain international crimes. It primarily refers to international crimes stricto sensu (core crimes): the crime of genocide, crimes against humanity and war crimes. In cases where, for whatever reason, the reaction of an international adjudicative body such as the International Criminal Court is lacking, or where a state which usually has a forum but in particular case refuses to prosecute (usually because of political opportunism) or cannot prosecute - the universal jurisdiction could step in and ensure criminal prosecution. In other words, the concept of universal jurisdiction refers to genuine international interest in putting an end to impunity for perpetrators of grave crimes, as specified in the Preamble of the Resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes. In comparative law, the universal jurisdiction also refers to some crimes other than core crimes. In the first place, it refers to the so-called treaty-based crimes, essentially transnational crimes. In this paper we have discussed whether this concept when envisaged for transnational crimes, or for that matter any other concept deriving from the aut dedere aut judicare rule, contributes to their universal character i.e. their positioning as crimes with universal significance. In that matter, we have analyzed two cases from international jurisprudence: the Ould Dah case and the ruling issued by the International Court of Justice in case Belgium v. Senegal, Questions relating to the Obligation to Prosecute or Extradite.

The article examines the current challenges and prospects of legal regulation of ecocide in national and international criminal law. The author analyzes the problems of prosecution for ecocide in national criminal law and the prospects for such liability in international criminal law. The authors emphasize that the armed aggression of the terrorist state of the Russian Federation against Ukraine has had a devastating impact on the environment, which will take decades to restore. Russian attacks on Ukrainian oil depots, strikes on the territory of the Kharkiv Institute of Physics and Technology with its nuclear facility, the death of several million chickens at the Chornobaiv poultry farm, and the mass death of dolphins in the Black Sea are qualified as ecocide. The destruction of the Kakhovka hydroelectric power plant dam is qualified as ecocide and a violation of the laws and customs of war. The evolution, concept, and composition of ecocide are analyzed. Having found its legislative consolidation in the national criminal law (Article 441 of the Criminal Code of Ukraine), ecocide has not been enshrined in international criminal law. It is not recognized as a crime either in the Rome Statute of the International Criminal Court or in any other international legal act. As of today, Russian crimes against the environment can be investigated by the International Criminal Court as war crimes. The authors of the article emphasize the need to include the crime of ecocide in the Rome Statute, since serious damage to the environment during armed conflicts is still to some extent covered by the provisions of the Rome Statute, but such damage caused in peacetime falls outside the jurisdiction of the International Criminal Court. The authors of the article note that it is important not only to punish the racists for all crimes of ecocide committed in Ukraine since 2014, but also to force the aggressor state to compensate for all environmental damage caused. When creating a compensation mechanism, we must take into account the international practice of compensation for environmental damage caused by military actions, in particular the practice of the International Court of Justice and the historical experience of creating special compensation bodies (in particular, the experience of the United Nations Compensation Commission (UNCC), 1991-2022). The future compensation mechanism should be based on the «ecosystem services approach», which will significantly increase the amount of reparations to be paid by the Russian Federation to Ukraine. To ensure legal regulation of the concept of ecosystem services, it is necessary to develop and adopt the Law of Ukraine «On Ecosystem Services» and regulations aimed at its implementation (primarily, methods of inventory and assessment of ecosystem services).

This paper explores the status of Iraq’s most vulnerable people, who have been disproportionately affected by gross human rights violations, and the applicability of the offence of genocide to such violations following the deterioration of the security situation within Iraqi territories under the control of so-called Islamic State of Iraq and the Levant (ISIL). The paper examines the legal concepts of “genocide” and “minority” at the international and internal levels. It identifies heinous acts committed against Iraqi minorities, characterizes the extent to which such acts can be categorized as genocide, and explores the applicable provisions of international criminal law (ICL). The paper employs an analytical-empirical methodology, for it explains the legal texts, accompanied with case law, and compares them with the on-ground status, in addition to data gathering. In terms of the legal context, the paper looks specifically at ICL; in terms of subject, it is restricted to the large-scale killings and other heinous acts perpetrated by ISIL against certain Iraqi minorities, particularly Yazidis, Christians, Turkmans, Kakayis, and Shabaks, that may amount to genocide or other international crimes such as crimes against humanity or war crimes. It is also restricted geographically and chronologically, to certain northern and central areas of Iraq during the period of armed conflict (2014 to 2017) between the Iraqi and Kurdistani governments on the one hand, and ISIL on the other. The main objective of this paper is to study the situation of Iraqi minorities and to monitor grave violations of their rights, specifically regarding the crime of genocide, in order to identify the best legal and judicial measures for intensifying internal and international cooperation in regard to prosecuting perpetrators, implementing the rules of ICL effectively, and eventually protecting these defenceless minorities by avoiding the future recurrence of such crimes.

The article examines the statistics of the Prosecutor General's Office, the Ukrainian Helsinki Union for Human Rights, and the Kharkiv Human Rights Group regarding the investigation of international war crimes. A sociological survey of NPU employees, the prosecutor's office, lawyers, and victims of war crimes was analyzed, and problematic issues that hinder the effective investigation of international crimes were outlined based on the results. It was found that the jurisdiction of the International Criminal Court in relation to the investigation of the most serious international crimes is divided into: subject, territorial, universal, temporal and substantive. The subject jurisdiction of the ICC extends to crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. The national system of investigating crimes has been studied since 2014. It is theoretically justified that the key task at the moment is to document the consequences of an armed invasion - in an intensified mode, with the aim of providing both national and international judicial institutions with sufficient evidence, the Office of the General Prosecutor, the SBU, the NPU, the National Guard of Ukraine, other law enforcement structures. The problem of ensuring security during the collection of information by law enforcement officers, as well as other persons involved in the process of transferring information, evidence, testimony, etc., is outlined, because all these processes, as a rule, take place in the combat zone or in the adjacent territories. It was concluded that in order to improve the effectiveness of the investigation of international crimes in Ukraine, it is necessary to implement as soon as possible: a clear policy regarding the national system of prosecution for international crimes; effective coordination of both national and international bodies of pretrial investigation; quick exchange of information; a generalized electronic database of documentation with access to both prosecutors and investigators.