Implementation of the Rome Statute in Ukraine: What to Expect in Practice

The year 2024 marked not only the long-awaited ratification of the Rome Statute of the International Criminal Court (ICC) in Ukraine but also a shift in Ukrainian criminal law toward the standards of international criminal law.
Since the armed conflict began in Ukraine in 2014, discussions arose around the need to amend the Ukrainian Criminal Code to incorporate the most serious international crimes into national legislation. Despite a series of legislative initiatives both before the full-scale invasion (Bill No. 9438 of December 20, 2018, and Bill No. 2689 of December 27, 2019) and after 2022 (Bill No. 7290 of April 15, 2022), projects related to the ratification of the ICC Rome Statute received the most attention.

On October 9, 2024, the Verkhovna Rada of Ukraine passed the law “On Amendments to the Criminal Code and the Criminal Procedure Code of Ukraine in Connection with the Ratification of the Rome Statute of the International Criminal Court and its Amendments.” Public positions around the text emphasized that it aimed to address only the most significant gaps in criminal law that limit proceedings related to the consequences of war. However, the changes mainly addressed specific issues, opening the door for ratification of the Rome Statute. Broader reforms are expected in the future (e.g., proposed Bill No. 11538 of September 2, 2024). Whether this will take the form of changes to Section XX of the Criminal Code, a separate law, or an updated code remains uncertain. Furthermore, an analysis of Law No. 11484 reveals that additional changes will be needed to fully implement these standards and assess their practical impact on investigating, prosecuting, and adjudicating serious crimes. Understanding how to apply these recent amendments correctly is essential.

The Crime of Aggression and War Crimes

Contrary to expectations, Articles 437 and 438 of the Criminal Code were not substantively changed regarding the defined offenses. The article titled “Planning, Preparation, Initiation, and Waging of Aggressive War” was renamed “Crime of Aggression,” and “Violation of the Laws and Customs of War” now refers to “War Crimes.” This approach is justified given the more than 140,000 criminal proceedings registered under Article 438 of the Criminal Code and 109 cases under Article 437. Changing the forms of these crimes could disrupt the justice system due to the need to reclassify or close existing proceedings, which would require substantial resources and could potentially paralyze investigations, especially while the armed conflict continues.

At the same time, the wording of these articles remains problematic, as mere title changes have not brought them closer to international standards:

• the crime of aggression under Ukrainian law still has an expanded interpretation, both in terms of the crime’s composition and possible perpetrators;
• war crimes are codified in a blanket article that refers to all violations of international humanitarian law (IHL), rather than only to grave breaches as defined in the ICC Rome Statute. It is crucial that criminal legislation eventually includes provisions addressing both general violations of IHL and specific war crimes, with article titles and content aligning with their essence under international law.

Both articles also contain new sanction formulations for these offenses. Criminal cases currently under court consideration are unaffected by these changes; the new provisions are expected to apply only in future cases. Basic principles governing the application of criminal law over time protect individuals from worsened conditions under new laws.

Genocide

Changes to Article 442 of the Criminal Code are among the most legally risky in practice. The article now combines three crimes: genocide (Part 1), incitement to commit it, and creating materials that advocate for it (Part 2). In the first case, criminal proceedings on such facts are still at the pre-trial investigation stage, and the courts are only preparing to accept them for consideration and form their own approaches to assessing actions, so changing the objective side of the crime will only allow such cases to move within the framework of international standards.

However, the most significant risk arises with Part 2 of Article 442. The revised article now mentions not only “direct incitement” but also its “public nature” and specific intent behind the actions, narrowing the understanding of this crime. Consequently, certain actions previously covered under Part 2 of Article 442 will be decriminalized following the implementation of the new law.

Although this formulation more closely aligns with the international definition of incitement to genocide, it raises questions about how to handle registered cases under the previous version, as well as issued verdicts. General rules regarding criminal law’s retroactive application in cases of leniency suggest that the new norm may apply retroactively. Ongoing investigations will need to comply with the new wording of the article, and cases lacking the crime’s elements should be closed. However, what happens to already issued verdicts remains an open question.

Crimes Against Humanity

Article 442-1 of the Criminal Code is a long-awaited addition to national legislation, finally enabling the documentation and investigation of crimes against humanity in Ukraine.

Since the start of the armed conflict in 2014 and preliminary investigations by the ICC Prosecutor's Office, questions have arisen regarding possible crimes against humanity. For years, the absence of such provisions in the Criminal Code was recognized as a gap that hindered justice for conflict-related abuses. This new provision must now be integrated into assessments of the war’s impact in criminal proceedings.

But now, crimes against humanity are a novelty that should find its place in approaches to assessing the consequences of the ongoing war in the practice of criminal proceedings. Given the provisions of the adopted law, the general provisions of the Criminal Code of Ukraine and the provisions of the Constitution of Ukraine, there is currently a risk that Article 442-1 cannot be applied retroactively, and not only to events that occurred after 24.10.2024. This issue is also relevant to other novelties of the law and potential changes aimed at bringing Ukrainian legislation in line with the Rome Statute, other IHL and ILC rules. Retroactivity would certainly enhance the ability of the national system to provide justice for the most serious crimes. However, it is important to have a clear legal basis for the application of this principle, which is in line with Ukrainian and international law.

The result is that the new article will not be a practical tool for addressing many conflict-related cases. Over a decade of armed conflict will thus be excluded from Ukraine's ability to prosecute crimes against humanity. Considering the focus on the scale and systematic nature of acts prosecutable under this article, it will be challenging to build legal cases without taking into account previously committed abuses. Individual acts like civilian detention and mistreatment occurred in occupied Crimea, Donbas, and other Russian-controlled areas after 2022. Patterns observed across these areas over time could likely be qualified as crimes against humanity. But this approach will remain beyond the reach of the national justice system.

Command Responsibility

The concept of commanders’ accountability for their subordinates' crimes in armed conflict has been the subject of professional debate since Russia’s full-scale invasion of Ukraine. Despite proposals to qualify such actions as “other violations of the laws and customs of war” under Article 438 Part 1 of the Criminal Code or as complicity, these approaches have not been widely implemented in practice.

Command responsibility is one of several forms of liability for grave international crimes under the ICC Rome Statute (Articles 25, 27, 28). On the one hand, incorporating this provision into the Criminal Code allows for prosecution of military commanders as principals rather than mere accomplices. But on the other, it does not guarantee easy application in practice.

In fact, the provisions of this article increase the liability of individual perpetrators of crimes, changing and expanding the approaches of criminal law. If we proceed only from the provisions of the Criminal Code of Ukraine, it will be possible to implement team responsibility in practice in proceedings only in relation to crimes committed after 24.10.2024, after the implementation law enters into force.

While the Criminal Code alone limits command responsibility to crimes committed after October 24, 2024, it’s important to remember that the primary norm of command responsibility is contained in Article 87 of the Additional Protocol to the Geneva Conventions of August 12, 1949, concerning the protection of victims of international armed conflicts (Protocol I), which has been binding for Ukraine since 1990. This suggests grounds for retroactive application of this provision for all crimes committed in the context of Ukraine’s armed conflict since 2014.

Universal Jurisdiction

Another debated innovation is the amendment to Article 8 of the Criminal Code, which enshrines the principle of universal jurisdiction. While Ukraine has recently engaged with other states pursuing national investigations based on this principle, universal jurisdiction is new to Ukraine’s criminal justice system. The Ukrainian version of universal jurisdiction is limited to prosecuting foreigners and stateless individuals on Ukrainian territory. Uniquely, it includes aggression (Article 437) among the crimes subject to this principle.

While introducing universal jurisdiction is a step toward international cooperation and effective global justice, its immediate implementation is unlikely, given the national system's current burden with conflict-related criminal cases. The resources for investigating serious international crimes committed abroad are lacking, and the Criminal Procedure Code does not currently provide a mechanism for applying this principle.

The passage of the ICC Rome Statute implementation law was a long-awaited step, as was the Statute’s ratification itself. Despite various initiatives, discussions, and debates over possible risks and solutions, the adopted law embodies minimal legislative intervention. It addresses key gaps in the Criminal Code compared to international standards, yet also poses practical challenges for implementation. Amendments to Part 2 of Article 442 of the Criminal Code illustrate potential issues if definitions of crimes such as aggression or war crimes were further modified.

While the Criminal Code has been the main focus for implementing the Rome Statute’s provisions, the Criminal Procedure Code has received limited attention. Amendments here were mostly editorial, simply referencing the Criminal Code’s articles on serious international crimes.
Incorporating international legal standards into Ukraine’s national legislation requires a systematic approach that considers ongoing criminal cases and minimizes risks to active investigations.

Further details on the current state of Ukraine’s legal system, existing challenges, and recommended solutions can be found in our report.