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Judge of the Supreme Court in the Criminal Cassation Court Oleksandra Yanovska delivered a keynote speech during a professional online seminar held as part of the Inter-University Programme on International Criminal Law and Procedure for Ukrainian Law Schools, organized by the Asser Institute (The Hague, Netherlands).
The event was dedicated to the application of international criminal law in Ukraine following the ratification of the Rome Statute of the International Criminal Court.
In 2024, Ukraine ratified the Rome Statute, which entered into force for Ukraine on January 1, 2025. In October of that year, Law of Ukraine No. 4012-IX “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in Connection with the Ratification of the Rome Statute of the International Criminal Court and Amendments Thereto” was adopted. This law introduced changes to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine to implement the provisions of the Rome Statute.
In particular, provisions of the Criminal Code regarding the crime of aggression (Article 437), war crimes (Article 438), and genocide (Article 442) were amended. The Code was also supplemented with new provisions, including those on crimes against humanity (Article 442-1) and command responsibility (Article 31-1).
At the same time, as the judge noted, despite the importance of these changes, issues of alignment remain between national criminal legislation and international criminal law, particularly regarding the application of the new norms over time.
In her speech, Oleksandra Yanovska outlined the constitutional limits on the application of criminal law. She emphasized that in Ukrainian constitutional doctrine, the principle of the rule of law is inextricably linked with legal certainty and predictability of legal regulation.
According to her, in criminal law the requirements of legal certainty are particularly strict, since vague or ambiguous norms can lead to excessively broad interpretation and create the risk of arbitrary application of the law.
The judge recalled that Article 58 of the Constitution of Ukraine establishes the general principle of the non-retroactivity of laws. An exception is allowed only in cases where the law mitigates or abolishes legal liability.
In criminal law, this principle is reflected in Article 5 of the Criminal Code of Ukraine, which provides that a law that worsens a person’s legal situation has no retroactive effect. At the same time, a law may be applied retroactively only if it benefits the person (the principle of lex mitior).
Oleksandra Yanovska paid particular attention to the issue of retroactivity in cases involving international crimes, which arises at the intersection of national constitutional law, criminal law, and international legal standards.
She noted that the application of international criminal law to events that occurred before the amendments to national legislation were made does not, in itself, contradict the Constitution. This is possible provided that the relevant norms already existed in customary international law at the time the act was committed and no criminal liability is being created retroactively in the narrow sense.
The judge also drew attention to the fact that for a long time crimes against humanity were not directly codified in the Criminal Code of Ukraine. Their subsequent legislative definition, in particular in Article 442-1 of the Criminal Code, raised complex constitutional and legal issues, primarily regarding the admissibility of retroactivity.
Analyzing the amendments to Article 438 of the Criminal Code of Ukraine, Oleksandra Yanovska noted that this provision retains an open reference to “other violations of the laws and customs of war” provided for by international treaties, the binding consent to which has been given by the Verkhovna Rada of Ukraine.
She also explained that the resolution of the Joint Chamber of the Criminal Cassation Court dated February 24, 2025, states that changes in the legislation to which a criminal norm refers do not create a new criminal law. Accordingly, the rules on retroactive effect provided for in Article 58 of the Constitution of Ukraine do not apply in such cases.
At the same time, according to the judge, the list of war crimes in Article 438 of the Criminal Code of Ukraine is not exhaustive. This norm should be interpreted contextually and teleologically and applied only to serious violations that are recognized as war crimes under international law.
Oleksandra Yanovska also illustrated the application of the law through court decisions. According to the Unified State Register of Court Decisions, after the Law No. 4012-IX entered into force, by January 20, 2025, courts of first instance had delivered:
– 5 decisions under Article 437 of the Criminal Code of Ukraine (crime of aggression);
– 77 decisions under Article 438 of the Criminal Code of Ukraine (war crimes);
– 2 decisions under Article 442 of the Criminal Code of Ukraine (genocide).
No decisions under Article 442-1 of the Criminal Code of Ukraine (crimes against humanity) had been delivered by that time.
Summarizing, the judge noted that when considering cases involving international crimes, a court decision must contain an additional block of reasoning, namely the court should:
– determine the source of the criminal prohibition;
– establish the state of international law at the time the act was committed;
– distinguish between formal retroactivity and the permissible application of international criminal law;
– assess the foreseeability of criminal liability;
– ensure the decision is consistent with constitutional standards;
– determine the relationship between Article 58 of the Constitution of Ukraine and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
“Bringing perpetrators to justice for international crimes serves not only a punitive, but also a restorative and preventive purpose,” the judge emphasized.
Thus, the application of criminal law in cases of international crimes requires the simultaneous consideration of constitutional guarantees, the principle of legal certainty, and the norms of international law. The retroactive application of criminal law is not categorically prohibited; however, it is possible only on the condition that the criminal prohibition is based on norms of customary international law that were already in force at the time the relevant act was committed, and expansive interpretation of the law to the detriment of the individual is not permitted.
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