Ukraine takes steps to cement rule of law framework
Ukraine has recently appointed numerous new judges to fill large vacancies in its court system and approved a new law to allow the eastern European country to formally join the International Criminal Court (ICC). ‘Both events are long overdue and welcome’, says Mykola Stetsenko, the President of the Ukrainian Bar Association.
The High Qualification Commission of Judges (HQCJ), which oversees the selection of the judiciary in Ukraine, said in a statement that almost 250 judges were sworn in at an oath-taking ceremony attended by President Volodymyr Zelensky. The judicial appointments are aimed at helping Ukraine strengthen the rule of law and wipe out a legacy of corruption – dating from the Soviet era – that has long plagued the judiciary.
The appointments come approximately one year after the HQCJ relaunched its process of vetting judges and kickstarted a hiring spree to fill more than 2,000 vacancies in its courts. Widespread judicial reforms began before Russia’s invasion in 2022 and are essential for Ukraine’s accession to the European Union.
Serious concerns about corruption within the judicial system remain, however, with 73 per cent of Ukrainians expressing distrust in the courts, according to a survey published in July by Kyiv-based think tank Razumkov Centre. Critics claim that Ukraine’s High Council of Justice has not fired enough judges recommended by the HQCJ for dismissal. The High Council of Justice hadn’t responded to Global Insight’s request for comment at the time of publication.
With corruption you cannot switch it off, you have to fight it consistently and persistently and it takes time
Dmytro Marchukov
PPID Liaison Officer, IBA Litigation Committee
‘Society expects more from the High Council of Justice in terms of setting the rules and dismissing more unfit judges’, Stetsenko says. ‘The work has commenced […] and that’s a good thing […] but there needs to be a critical mass of those decisions before society says: now we finally see change.’
In 2023 local authorities arrested the former head of the Supreme Court, Vsevolod Kniaziev, for allegedly accepting a $2.7m bribe. He denies wrongdoing and is awaiting trial.
Dmytro Marchukov, PPID Liaison Officer for the IBA Litigation Committee and a senior partner at Integrites Attorneys at Law in Kyiv, says that while efforts to reform the Ukrainian judiciary have been imperfect, and certainly haven’t yet eradicated corruption in Ukraine’s courts, the country has made significant progress towards creating a fairer system in the past decade. ‘From what I have seen in our own cases the quality of the judges and of their judgments is steadily getting better’, he says. ‘With corruption you cannot switch it off, you have to fight it consistently and persistently and it takes time.’
In a separate development in August, President Zelensky signed a new law to ratify the Rome Statute, paving the way for the country to join the ICC.
Ukraine has recognised the jurisdiction of the ICC over alleged crimes under the Rome Statute committed on its territory before, but full membership of the Court is another meaningful step towards Ukraine joining the EU.
The ICC has already issued arrest warrants for Russian officials including President Vladimir Putin and Russia’s Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova, for their alleged roles in the illegal movement of Ukrainian children to Russia.
Because of Ukraine’s existing relationship with the ICC, Mark Ellis, Executive Director of the International Bar Association, says that the implications of the country joining the ICC are largely symbolic. ‘There was always a perception gap about Ukraine not being a state party to the ICC’, he says. ‘This is a good day for Ukraine and for the international community.’
Stetsenko believes it’s too early to tell whether Ukraine’s membership of the Court will result in more prosecutions of suspected Russian war criminals. ‘Ukraine will have a stronger voice [and] more procedural opportunities and rights and will probably bring more cases against the Russian military at the top and bottom level’, he says.
Marchukov says that Ukraine would benefit from alleged Russian war criminals being prosecuted at an international level because the court proceedings will be perceived as less biased. He adds that Ukraine joining the ICC shows the country wants the prosecutions to become a global, rather than a Ukrainian, issue.
Ukraine’s ratification of the Rome Statute has sparked some controversy, however, because of the government’s decision to invoke a provision that would deny the ICC jurisdiction over war crimes committed by Ukrainian nationals for seven years. The move reportedly reflects the concerns of some political and military officials that Ukrainian soldiers participating in the armed conflict would be vulnerable to prosecution.
Erika Guevara Rosas, Senior Director of Research, Advocacy, Policy and Campaigns at Amnesty International, said in a statement that the carve-out ‘runs contrary to the principles of international justice’ and potentially conflicts with Ukraine’s previous commitment to allow the ICC to investigate crimes committed in the country’s territory after February 2014.
Ellis says that while the exemption is not ideal, he’s confident that Ukraine wouldn’t shy away from investigating its own nationals over suspected war crimes. ‘The international community and the IBA will review to make sure that Ukraine fulfils its responsibility in pursuing Ukrainian soldiers alleged to have committed crimes’, he says.
Stetsenko believes that Ukraine must hold itself to the same rule of law standards as others to be respected on the world stage. ‘If you look at the broader picture, if Ukraine wants to be part of the civilised world, and it does, we have to abide by the rules, and that means if there are any violations by Ukrainian soldiers they have to be fairly investigated’, he says.
United Nations Photo/Flickr