Why draft law No. 7290 won’t secure effective punishment for international crimes – opinion of human rights defenders

The representatives of Ukraine 5 AM Coalition state that draft law No. 7290, which is intended to prosecute international crimes, contains significant shortcomings that would adversely affect justice if passed.

This is stated in the appeal of the human rights activists to the Verkhovna Rada Committee on Law Enforcement.

According to human rights activists, despite the long-lasting armed conflict in the territory of Ukraine, discussions on amendments to the Criminal Code of Ukraine regarding the most serious international crimes are still ongoing at the legislative level. Since 2014, war crimes have been documented in Crimea and Donbas, the legal qualification of which was limited by Article 438 of the Criminal Code of Ukraine. After February 24, 2022, the scale of crimes committed only increased, and the capabilities of Ukrainian law enforcement agencies in terms of the legal qualification of acts remained unchanged.

However, the Draft Law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine” (No. 7290) was registered in the Verkhovna Rada on April 15. The draft law seeks, inter alia, to punish Russia for committing the most serious international crimes in our country.

However, the draft law has significant shortcomings. In particular, it does not contain provisions concerning the possibility of prosecuting persons for war crimes within the framework of command responsibility.

In addition, the draft Article 436 of the Criminal Code proposes to establish criminal liability for public appeals for committing acts of aggression or unleashing a non-international armed conflict. This does not cover a situation of an international armed conflict. At the same time, the article has a rather broad category of “public appeals” which does not provide legal certainty as to which actions of a person will fall under the qualification of this article.

Moreover, the draft law lacks provision on the possibility of introducing the institution of universal jurisdiction in Ukraine. This applies, in particular, to the norms on the possibility of prosecuting foreigners in Ukraine who committed the most serious international crimes outside Ukraine. In this case, Ukraine limits its opportunities for cooperation with other countries in matters of international justice.

In view of the above, human rights activists recommend that draft law No. 7290 should be passed at first reading as a basis for further finalization before the second reading.

Earlier we informed that the Criminal Code of Ukraine could have been harmonized with international law long ago. After all, back on May 20, 2021, the Verkhovna Rada adopted the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning the Implementation of Norms of International Criminal and Humanitarian Law” (No. 2689). For more than 10 months now, the law is pending the President’s signature, while the Cabinet of Ministers has submitted another, already mentioned draft law No. 7290, which largely copies the previous one and undermines the multi-year efforts of the professional legal community.