A Fair Trial in an Unfair War: Mechanisms of Guarantees and Moral Dilemmas in Their Implementation. Anna Stakhanova’s column for Censor.NET

”People will consider an outcome to be fair if they believe that the process behind it was fair and if they believe that the people responsible for that process are impartial. It is often said that justice should not only be done, but also seen to be done”.

Preet Bharara, ‘Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law’

The Ukrainian criminal justice system is functioning in an unprecedented context as it is necessary to guarantee accountability for international and war crimes during the ongoing armed conflict. Cases related to the armed conflict have been brought to and considered by Ukrainian courts since 2014. However, since Russia’s full-scale invasion of Ukraine on 24 February 2022, more than 90 judgements related only to violations of the laws and customs of war and genocide have been passed.

Ensuring a fair trial is a legal obligation of Ukraine as a state under various sources of law. Denial of a fair trial in conflict-related cases is also a crime under Ukrainian law, international humanitarian law and international criminal law.

Therefore, judges face a complex role of impartiality in dealing with suspected Russian servicepeople during criminal trials, and lawyers face a dilemma between their own emotions and professional defence of a suspect in order to demonstrate impartiality, independence and fairness and to protect the Ukrainian criminal justice system from any complaints or encroachments in the future.

Human rights law

A number of international human rights treaties establish minimum guarantees of a fair trial. In particular, Ukraine and Russia must adhere to the provisions of the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). First and foremost, the right to a fair trial, and a number of other fundamental rights, in particular, related to the investigation and trials in such criminal proceedings. From this perspective, judges, prosecutors, investigators and defence lawyers play an important role in ensuring that Ukraine fulfils its human rights obligations.

The obligations arising from these treaties also apply in the context of armed conflict, including occupation. At the same time, both the ECHR and the ICCPR allow signatory states to derogate from certain obligations in times of war or other public emergency ‘threatening the life of the nation’ and ‘whose existence is officially proclaimed’. There are, however, certain obligations under both the ECHR and the ICCPR that cannot be derogated from, even in times of emergency, such as the right not to be subjected to torture or inhuman or degrading treatment or punishment.

Derogation in this sense means ‘the suspension or termination of a law only under certain circumstances’. It should be noted that Ukraine has derogated from various rights at different times since 2015, and particularly since martial law was proclaimed following the full-scale invasion in 2022. At the same time, the right to a fair trial, prohibition of double jeopardy and non-discrimination are considered to be non-derogable rights.

When determining the scope of obligations and applicability of treaties in Ukraine, it is also important to note that each international and regional human rights treaty has its own monitoring body, such as the ECtHR (for the ECHR) and the Human Rights Committee (HRC) for the ICCPR, which have their own interpretations and approaches to the right to a fair trial.

International humanitarian law

International humanitarian law may be applied alongside international human rights law and customary international law, but it is the primary legal framework in the context of armed conflict. In the context of a fair trial, IHL provides for the following standards:

• the right of all members of the armed forces of a party to the conflict to take direct part in hostilities;
• the right of Ukraine or Russia to try persons suspected of crimes falling under national jurisdiction or war crimes under national law the right of Ukraine or Russia to try persons suspected of crimes falling under national jurisdiction or war crimes under national law;
• the right to fairness in criminal proceedings against prisoners of war;
• the right to fairness in criminal proceedings against civilians interned during the conflict or in the occupied territories;
• fundamental guarantees of fair trial for those who find themselves in the hands of a party to the conflict and do not enjoy more favourable treatment under the conventions (e.g., the status of a prisoner of war).

Lawyers in Ukraine play an important role in upholding the state’s obligations under IHL during the conflict with Russia, but the obligations under international humanitarian law apply only until the conflict ends. In practice, this will not affect the choice of approach to observance of fair trial obligations since international human rights law can be applied both in peacetime and in armed conflict, and many obligations are similar.

Since Article 438 of the Criminal Code of Ukraine relates to “other violations of the laws and customs of war provided for in international treaties ratified by the Verkhovna Rada of Ukraine” and thus covers violations of the right to a fair trial under IHL, the denial of a fair trial may also fall within the definition of Article 438 of the Criminal Code of Ukraine.

International criminal law

International Criminal Law (ICL) is the body of international law that defines international crimes - grave breaches of international law - and the procedures for holding individuals accountable for committing them. The denial of a fair trial has been codified in ICL (as a war crime or crime against humanity) as ‘wilfully depriving a prisoner of war or a civilian [or another protected person] of the rights of fair and regular trial. This description corresponds to the respective “grave breach” of the Geneva Conventions under IHL.

On 15 August, the President of Ukraine submitted to the Verkhovna Rada the Draft Law on Amending the Criminal and Criminal Procedure Codes of Ukraine regarding the Ratification of the Rome Statute of the International Criminal Court and Amendments thereto. The mere fact that this draft law exists and has been submitted to the Verkhovna Rada by the President demonstrates the political will to harmonise the provisions of Ukrainian criminal law with the ICL, which provides for the right to a fair trial.

Moral dilemmas and the need to uphold the rule of law in Ukraine

Alongside legal challenges, defence lawyers, prosecutors and judges in Ukraine face serious moral dilemmas. They have to balance professional ethics with their personal attitudes towards suspects, especially when it comes to war crimes committed against their fellow citizens. For defence lawyers, this means having to defend clients despite possible hatred or anger towards their actions. Prosecutors must ensure that all evidence is collected and presented without bias, and judges must remain objective despite emotional pressure from society.

Moreover, IHL obliges all parties to a conflict to take the measures required to prevent and stop breaches of IHL. In the case of ‘grave breaches’ of the Geneva Conventions or Additional Protocol I, ‘war crimes’ and/or other crimes under customary international humanitarian law, states have an obligation to investigate and prosecute these violations, and thus must criminalise grave breaches of IHL and introduce effective criminal sanctions. Thus, as denial of a fair trial is considered a ‘grave breach’, and therefore lawyers of parties to the conflict can be held accountable for such behaviour if it is criminalised in the national legal system.

Therefore, adherence to the principles of fair trial in war crimes cases is crucial for maintaining trust in the Ukrainian criminal justice system. If the process is violated or unsatisfactory, it could undermine the legitimacy of the convictions and even lead to international complaints. It is also essential to demonstrate Ukraine’s commitment to the rule of law, which is particularly important in times of war, European integration and the ratification of the Rome Statute of the ICC.

Anna Stakhanova, Key Expert on Fight against International Crimes of EU Project Pravo-Justice

The text was first published in Censor.NET.