Russian aggression against Ukraine in the light of international criminal law: Vice President of the Criminal Cassation Court of the Supreme Court spoke about the legal aspects of war crimes

Nataliia Antoniuk, Vice President of the Criminal Cassation Court of the Supreme Court, took part in the conference "Russian Aggression against Ukraine and International Criminal Law".

In her report, Nataliia Antoniuk highlighted a number of key issues facing the legal community in the context of Russia's armed aggression against Ukraine. In particular, it was about immunity from criminal prosecution and the possibility of bringing to justice persons holding the highest government and military positions in the Russian Federation, as well as command responsibility. The issue of the possibility of considering cases of war crimes and the crime of aggression by both the courts of Ukraine and the ICC and the international tribunal was also in focus.

The speaker noted that commanders who do not prevent their subordinates from committing war crimes are subject to criminal liability, as failure to ensure proper control over the actions of subordinate servicemen, failure to respond to war crimes committed by them is an independent criminal offence and is qualified under Article 438 of the Criminal Code of Ukraine.

The SC CrimCC Vice President emphasised the importance of reflecting the contextual element and the principles of distinction and proportionality in procedural documents.

"The contextual element indicates that a person prosecuted for a war crime is aware that he or she acted in the context of an armed conflict. The principle of distinction demonstrates that the perpetrator must understand whether the victim of his or her actions is a civilian or a military person. The principle of proportionality involves measuring excessiveness against the expected concrete and direct military advantage to be gained by attacking persons or objects. The contextual element of war crimes should be described with reference to a specific situation that takes place and is assessed from a legal point of view. It is this element that helps to distinguish a war crime from a general criminal offence," emphasised Nataliia Antoniuk.

The speaker also outlined the issues related to the qualification of the crime of aggression and the range of persons who can be held liable for committing this crime. She also touched upon the expediency of amending the legislation due to the blanket nature of Article 438 of the Criminal Code of Ukraine, noting that war criminals can be prosecuted using the current version of the Criminal Code of Ukraine.

The event was organised by the National School of Judges of Ukraine in cooperation with the National School of Judiciary and Prosecution of the Republic of Poland.