What is international law (a), and why does it matter for Ukrainian legal practitioners, including judges (b)? 

a. What is international law?  

International law is the body of rules and principles that determine the rights and obligations of States towards each other as well as towards other actors, such as individuals and international organisations, thus governing their conduct.   

Hugo Grotius’s work “On the Law of War and Peace” published in 1625, is considered as the first definitive text on international law, where he provides a systematic description of the behaviour of national communities, arguing that they have legal rights and duties.    

Public International Law and Private International Law  

  • Public international law is a combination of rules and customs governing relations between and among entities with international legal personality: sovereign states and other international actors, such as inter-governmental organisations and individual natural persons. It governs fields of international concern, such as armed conflict, human rights, the environment, the sea, space, trade, territorial boundaries, and diplomatic relations. Branches of public international law include international humanitarian law (IHL), international human rights law (IHRL), international criminal law (ICL) and international refugee law.   
  • Private international law deals with conflicts between private actors in situations with an international component, where more than one nation’s laws may apply, and defines and defines which domestic laws or courts are responsible for the adjudication of issues.   

 b. Why does it matter for Ukrainian legal practitioners, including judges?  

The adjudication of conflict-related cases requires judges to interpret offences from the Criminal Code of Ukraine (CCU) that are essentially international crimes. These include the crime of aggression, war crimes and genocide, reflected in Articles 437, 438, 442 of the CCU respectively) [Judicial Benchbook, p. 6].   

This means that the interpretation of these articles requires reliance on international treaties and case law. This obligation stems from Ukraine's binding commitments under ratified international treaties (which form part of domestic law once ratified by the Verkhovna Rada) and customary international law, both of which are binding on all states. Since these offences are already codified in relevant treaties as international law violations, there exists a long-standing practice of international tribunals and bodies in their adjudication, which the judiciary must draw upon for further guidance, clarity and consistent adjudication.   

Specifically:   

  • Article 438 (War crimes) is a “blanket provision”, that contains, inter alia, two general references, criminalising the “use of methods of the warfare prohibited by international instruments”, “or any other violations of rules of the warfare recognized by international instruments consented to by binding by the Verkhovna Rada (Parliament) of Ukraine, and also giving an order to commit any such actions”. Article 438 explicitly requires reliance on international treaties and custom, since it does not set out the specific scope or elements of war crimes. As such, interpretation of Article 438 is based on IHL rules and the statutes and case law of international criminal courts and tribunals [Judicial Benchbook, pp. 46-75].  

In addition to these general references, Article 438 lists the specific offences: “Cruel treatment of prisoners of war or civilians”, “Deportation of civilian population for forced labor”, “Pillage of national treasures on occupied territories” (para. 1) and “Murder” (para. 2). These offences, together with those implicitly contained in the general references of the article are established war crimes. Their legal elements (objective, subjective, contextual) have been identified and defined by international criminal courts and tribunals in their statutes and case law, much of which reflects customary IHL. Thus, reference to international law can provide guidance for adjudication in Ukrainian courts [Judicial Benchbook, Part C: Definition of War Crimes under international law and applicability under article 438 of the CCU].  

  • Article 437 (Crime of Aggression) criminalises two distinct offences: (1) planning, preparation or initiation of an aggressive war; and (2) waging an aggressive war. As the elements of these crimes are not specified, reliance on relevant international treaties is vital for an accurate legal analysis. The crime of aggression is codified in the UN Charter, the relevant UN General Assembly Resolution 3314 “Definition of Aggression” and the ICC Statute [see further, Judicial Benchbook, paras. 932-1046).  
  • Article 442 (Genocide) covers the same conduct as prohibited under the relevant international instruments (the Genocide Convention, the Statute of the ICTY, the Statute of the ICTR and the Statute of the ICC). Consequently, they can assist judges in assessing the exact scope of Article 422 and, eventually, selecting the acts that can attract criminal responsibility [see further, Judicial Benchbook, paras. 1047-1134].  

Moreover, Ukraine is a signatory to a number of international human rights treaties (See Question ‘What is international treaty law? What is customary international law?’), such as the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT) [Defense Counsel Handbook: A Guide for Ukrainian Lawyers Practicing in Domestic War Crimes, pp. 18-20]. Once international human rights treaties have been ratified by the State and have acquired formal validity in the domestic legal system, they must necessarily by applied by the Courts. The aforementioned treaties safeguard fundamental human rights, which all human beings are entitled to. They outline protections to be guaranteed even during armed conflict to both combatants and civilians, with some of special importance to judges and legal practitioners, such as the right to a fair trial [Handbook for Legal Professionals in Ukraine: Ensuring the Fairness of Conflict-Related Trials, p. 8-18].  

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