Justices of the Supreme Court Discussed the Application of International Law on Armed Conflicts in the Case Law of National Courts

On April 12, 2019, the roundtable meeting was held in the Supreme Court for the developers of the training course for judges on the application of the provisions of international humanitarian law (IHL) and international criminal law (ICL) in the case law of national courts. The roundtable, organized on the initiative of the National School of Judges (NCJ) and supported by the USAID New Justice Program, which was attended by justices of the Supreme Court and the Cassation Criminal Court within the Supreme Court.

Vice-Rector of the NSJ Volodymyr Mazurok noted that the development of the course started in October 2017. In general, four meetings of the group of developers, most of which are judges of local first instance courts, were held with the assistance and expert support of the USAID New Justice Program. At the final stage of the course development, two trial tests of the course took place: in December 2018 in Kharkiv and in February 2019 in Dnipro.

The developer team leader, Tatiana Fulei, Head of the Department for Judicial Research and Scientific and Methodological Support for the Judicial Education of the National School of Judges, emphasized that during the course testing they came up with an idea to present its materials to the justices of the Cassation Criminal Court and to discuss certain points of application of IHL provisions, in particular, the relations of the IHL to international criminal law, national criminal law and international human rights law. Issues such as the use of terms from the IHL and the ICL, the correlation of IHL sources, the issue related to the qualification of individual crimes, the offenders, etc., should also be discussed. Consequently, such a discussion is an innovative form of judicial education, to a certain extent, due both to the complexity of the topic and the need for the highest judicial authority to be well equipped to respond to the challenges that arise when considering such cases.

Mykola Hnatovsky, Associate Professor of the International Law Department of the International Law Department of the Institute of International Relations of Taras Shevchenko National University of Kyiv, Chairman of the European Committee for the Prevention of Torture, noted that the country’s unwillingness to call the things by their proper names, alongside the imperfection of the provisions of the Criminal Code of Ukraine, has led to the fact that the terminology related to terrorism is used in proceedings submitted to the court, while war and military crimes are not properly distinguished even at the highest level. One of the duties of the state is to ensure recording, effective investigation, the existence of legislation and the prosecution of persons having committed war crimes. The bulk of liability is vested with domestic courts and it is the Cassation Criminal Court that has to establish standards for the application of the law of armed conflict.

Anton Korynevych, Associate Professor of the International Law Department of the Institute of International Relations of Taras Shevchenko National University of Kyiv in his speech drew a distinction between armed conflicts in the Crimea and the Donbas, investigated the existence of an international armed conflict/occupation in the Crimea, an international and domestic armed conflict in the Donbas.

The participants of the roundtable discussed the need for judges to take into account the IHL and ICL provisions, the existence of armed conflicts in Ukraine, the potential committing of international crimes, in particular war crimes and crimes against humanity, in the context of the situation in the Crimea and the Donbas, the need to take into account the rights and application of the guarantees provided under international humanitarian law, in the cases related to armed conflicts in the Donbas and in the occupied Crimea, debatable issues of case law on the application of Articles 437 and 438 of the Criminal Code of Ukraine and so on.