The ruined streets and hundreds of killed unarmed civilians – these are the realities in the Kyiv region, including Bucha and Irpen, liberated from the Russian troops. If we look at the events during the occupation of Kyiv’s suburbs by Russian soldiers as a separate episode, these are undoubtedly war crimes under international and Ukrainian law. However, if we consider this in the context of the “final solution of the Ukrainian issue” against the background of all Russia’s actions against Ukraine over the past 8 years, then now is the time to raise the question of the concept of genocide to assess what is happening in Ukraine.
Who, and on what grounds, will be responsible for the inhumane crimes of the Russian occupiers? – lawyer and Professor at the UCU School of Law Andriy Kostyuk and Svitlana Khilyuk, Head of the UCU School of Law, answered this and the following questions.
Andriy Kostyuk notes that the inhumane crimes of the Russian military are deeply rooted in criminal psychology, which has lasted for centuries in their society. Russian society has been raised on the Gulag Soviet customs. According to him, thirty years later, a generation has changed, but not the customs. And when there is an aggravation of anything, like a war, this collective unconscious rises to the surface and begins to dominate the behaviour of people who commit these atrocities, thus showing their power, hatred, and greed.
Direct speech by Andriy Kostyuk, Senator of the Ukrainian Catholic University, Lecturer at the UCU School of Law, Lawyer, Managing Partner of JSC “KPLT”:
Armies are different, and they also wage war in different ways. The way Russia does this testifies to the ideology it professes: cruel, inhuman treatment of all those who are not within that military group. These actions describe their society as a whole, because the basis of their civilization, no matter what they say or hide, is contempt for the dignity of others and deeply slavish tyrannical psychology: you are a tyrant, slave, or both at the same time. That is, you are a slave to the one who stands above you and a tyrant to others whom you consider as inferior. This actually happened to the civilians from the liberated Kyiv regions; when they appeared in the Russians’ hands, they were killed and raped. Russia’s desire for the self-assertion through cruelty, the destruction of everything, including someone’s life, is a trauma to society that will not be healed until something like collective repentance or truly denazification of the country takes place.
Today, everyone can see the crimes against the civilian Ukrainian population by opening a photo gallery on the Internet by entering: “Bucha, April 3”. We need to respond to such photos with specific actions.
Everyone must do what he can to stop this cruelty, because otherwise he becomes just a silent observer who, through their silence consents and affirms russia’s actions. And if someone continues to buy oil, coal, gas, even indirectly, then they become accomplices to the crime because the people who commit such atrocities receive this money as salaries. In this situation, the European Union and other buyers of Russia’s energy resources can no longer say that this is business as usual, that it is necessary to separate the economy and politics. After all, the economic resources they supply to the aggressor are directly used for the genocide of the Ukrainian nation. Therefore, in order not to be an accomplice to the crime, it is necessary not only to condemn the crimes verbally, but in practice to terminate all relations with the aggressor russia.
Direct speech of Svitlana Khilyuk, Ph.D., Associate Professor, Head of the Department of Legal Theory and Human Rights at UCU
The liberation of the suburbs of Kyiv exposed the atrocities of the Russian army and the armed formations under their control. From a legal point of view, the killing, abduction, torture, and rape of civilians in an international armed conflict are criminal acts at both the international and national levels.
Under the Rome Statute of the International Criminal Court, such acts can be considered as war crimes (not to be confused with military ones) and / or crimes against humanity. They do not have a statute of limitations and are increasingly subject to universal jurisdiction (i.e. that a person in one country can be prosecuted for crimes committed on the territory of another country).
Ukraine has not yet ratified the Rome Statute, but it has recognized the jurisdiction of the International Criminal Court on a special statement. Therefore, as of November 21, 2013, the jurisdiction of the ICC extends to the territory of Ukraine (including the occupied Crimea and Donbas) in terms of war crimes and crimes against humanity. This means that under international criminal law, persons who have reached the age of 18 and directly committed, facilitated, incited, as well as commanders who have not stopped these crimes against civilians, should be punished. It should be kept in mind that given the scale of criminal acts against civilians, it is unlikely that the actions of all Russian military men will be considered in The Hague. The main burden of prosecuting the perpetrators will fall on national courts.
According to the current Criminal Code of Ukraine, what we saw in the territories liberated from Russian occupation can be qualified under Art. 438 “Violation of the laws and customs of war,” which provides for punishment including life imprisonment. This crime also does not have a statute of limitations for criminal prosecution. At the same time, Ukrainian lawyers rightly point out that the current version of Art. 438 of the Criminal Code of Ukraine does not cover all possible socially dangerous acts against the civilian population by representatives of the aggressor state. Therefore, Bill 2689 was prepared, which provides for the systematic implementation of international criminal and humanitarian law in the Ukrainian criminal legislature. This bill was adopted by the Verkhovna Rada of Ukraine and submitted to the President of Ukraine for signature on June 7, 2021, where it is until now.
The abuse of Bucha and other Ukrainian cities by the Russian occupiers violates the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Art. 2 “Right to life”, Art. 3 “Prohibition of torture”, etc. This opens the possibility for dealing with the violated rights also at the European Court of Human Rights. Despite leaving the Council of Europe, Russia is responsible for violations of the Convention committed before September 16, 2022.
At this point, it is critical to document all the atrocities of Russian troops in order to use all possible – international and national – mechanisms to deal with violated rights as effectively as possible in the future.