On 13 December 2022, the State Duma, the Russian parliament’s lower house, unanimously approved, in the first reading, the bill on the imposition of Russian criminal law and criminal procedure upon the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces of Ukraine (hereinafter, the Bill). The Bill’s temporal scope covers acts committed until 30 September 2022, i.e. the date when Russia attempted to illegally annex these territories. To become law, the Bill shall be approved in a second and third reading by the State Duma, then approved by the Federation Council and finally signed by the President. Whereas the Bill is extremely problematic in several respects, my blog post focuses on Article 2(2), which reads as follows:
An act, the responsibility for which is established by the legal acts of Ukraine, shall not be criminal and punishable if it contains elements of a crime provided for by the Criminal Code of the Russian Federation, but was aimed at protecting the interests of the Russian Federation, the Donetsk People’s Republic, the Luhansk People’s Republic or the legally protected interests of citizens or organisations of the Russian Federation, the Donetsk People’s Republic, the Luhansk People’s Republic, the population and organisations of the Zaporizhzhia province, the Kherson province.
Unconstitutional and Imperial
When presenting the Bill in the State Duma, Irina Pankina, a co-drafter of the Bill, beat around the bush: ‘We perfectly understand the conditions in which the new territories lived for many years […]. It is important to try to integrate the new regions into the single legal space of the Russian Federation as soon as possible’. She passed over the fact that the residents of the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces of Ukraine had lived in peace and had experienced no atrocities before Russia invaded these regions. Importantly, the elephant in the room was not addressed: the Bill flagrantly infringes the Russian Constitution, criminal legislation and international law, essentially transforming the occupied territories of Ukraine into a lawless area. Yet again, the Bill underscores the imperial nature of the Russian war of aggression.
The Russian Criminal Code shall be based on the Russian Constitution and ‘generally recognised principles and norms of international law’. Article 15(4) of the Russian Constitution stipulates that ‘generally recognised principles and norms of international law as well as international treaties of the Russian Federation shall be an integral part of its legal system’. In case of conflict between domestic legal rules and rules of such treaties, the latter shall be applied. Nevertheless, the Bill does not live up to any of these standards.
Firstly, the Bill’s blanket abrogation of Ukrainian criminal law and criminal procedure in the occupied provinces of Ukraine amounts to a breach of international humanitarian law. Pursuant to Article 64 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, the occupying power, Russia, is bound not to repeal the penal laws of Ukraine, except for cases where such laws constitute a threat to Russia’s security or an obstacle to the application of this Convention. The arguments of legal integration and unity of the legal space, both put forward by the Bill’s drafters, do not suffice. Even if one admits that Russia may enact provisions necessary for the orderly government of the occupied territories, it is unfathomable how rubber-stamping virtually all crimes would help to maintain public order.
Secondly, Article 2(2) of the Bill does not comply with the international legal obligations of Russia concerning the prosecution of international crimes. Article IV of the Convention on the Prevention and Punishment of the Crime of Genocide obliges Russia to punish persons committing—or directly and publicly inciting to commit—genocide. If the Bill is adopted, the Russian legislation will cease ‘to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of’ these crimes, thereby violating Article V of the Convention. In addition, customary international law imposes a duty on Russia to prosecute alleged perpetrators of war crimes regardless of any antithetical interests.
Thirdly, Article 2(2) of the Bill deprives victims of their human rights, notably the right to an effective remedy. At the national level, the Russian Constitution guarantees the judicial protection of human rights and forbids the adoption of laws cancelling or impairing human rights. At the international level, the right to an effective remedy is enshrined inter alia in the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to both of which Russia is a state party.
Crucially, Article 2(2) of the Bill defies common sense. Russian law itself refers to crimes as socially dangerous acts. Which social interests can then justify criminality? Since no list of interests is attached to the Bill or the Explanatory Note, the judiciary is given carte blanche to determine them on a case-by-case basis, opening the door to arbitrariness.
Likewise, the introduction of such a vague concept into the fabric of criminal law undermines the principle of legal certainty. Although this principle is not explicitly set forth in the Russian Constitution, the Russian Constitutional Court derived the criterion of legal certainty from the constitutional principle that all persons are equal before the law, ‘because such equality can be ensured only if all law enforcers uniformly understand and interpret a legal norm’.
Moreover, the ambiguity of the term ‘interests’ is expected to create a vast array of corruption schemes, where defendants can resort to bribery and evade responsibility. This problem is exacerbated by another appalling legal development in Moscow. In his decree of 29 December 2022, President Putin exempted the military personnel, law enforcement officials and persons seconded to the occupied provinces of Ukraine from filing tax declarations from the start of Russia’s full-scale invasion of Ukraine onwards. He also allowed all these persons to receive gifts and rewards ‘of humanitarian (charity) character’ in connection with their activities in the occupied provinces of Ukraine.
Many Russians are reported to endorse the activities of their army in Ukraine (see e.g. here, here and here). As long as President Putin and his minions remain in power and the Russian people do not come to grips with their deep-rooted chauvinism and imperial arrogance, it is highly unlikely that the Russian courts will hold any Russian government officials, members of the Russian army or other pro-Russian persons accountable for committing crimes in the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces of Ukraine. Against this background, however, what is the point in amending the legislation? There are at least two reasons: practical and propagandistic.
In practice, it will be easier for the Russian investigators, prosecutors and judges, whose understanding of law is traditionally grounded in ultra-formalism and hyperpositivism, to make politically desired choices. Nobody will have to bother President Putin with requests to pardon certain persons.
For propaganda purposes, Article 2(2) of the Bill reinforces the Kremlin’s fallacious narrative about Ukraine as a failed state. Andrey Klishas, a co-drafter of the Bill, presumptuously envisaged an extension of the Bill’s applicability to other Ukrainian provinces after their occupation by Russia. Hence, Russian government officials, members of the Russian army and other pro-Russian persons, emboldened by the Bill, get a green light to continue to commit atrocities, further engulfing the occupied territories of Ukraine in an environment of mayhem and savagery.
Finally, it is somewhat ironic to contextualise the Bill within the framework of Russia’s larger propaganda campaign of ‘denazify[ing] Ukraine’. As stated by some of the world’s leading experts on the Holocaust, Nazism and World War II, the equation of Ukraine with the Nazi regime is not only factually wrong but also morally repugnant. At the same time, it is Russia that is increasingly being compared to the Third Reich (see e.g. here, here and here). Indeed, the Bill bears a striking resemblance to the Decree on the Exercise of Martial Jurisdiction in the ‘Barbarossa Area’ and on Special Measures of the Troops, signed by Wilhelm Keitel on 13 May 1941. The German legal instrument infamously laid down that ‘[t]here is no obligation to prosecute acts committed by members of the Wehrmacht and its entourage against enemy civilians, not even if the act is concurrently a military crime or offence’. The German troop commanders had to confirm only ‘verdicts which are in accord with the political intentions of the leadership’. The fate of Wilhelm Keitel, sentenced to death by the International Military Tribunal in Nuremberg, may serve as a reminder for the Russian advocates of impunity that justice will prevail sooner or later.
Ukrainians need justice as a sine qua non for peace. Contrary to the talking points of some westsplainers and russplainers, justice is an indispensable component of a future peace in Ukraine and the continent as a whole. Oleksandra Matviichuk from the Centre for Civil Liberties, a Nobel Peace Prize laureate, stressed:
[T]here will be no lasting peace in our part of the world without justice. Because when impunity is sewn into the social culture of the Russian people, it will […] only be a temporary freeze. We fight not only to achieve justice for Ukrainians, but also to prevent crimes that Russia may commit in […] other states.
In his timely monograph, Michael Riepl outlined three types of Russian approaches to international humanitarian law: (i) denying the existence of a war; (ii) outsourcing warfare to private military companies; and (iii) denying facts about wrongdoings. Article 2(2) of the Bill deals with a novel scenario, born of Russia’s full-scale invasion of Ukraine, where none of these malicious tactics succeeded. It heralds the argument of last resort: yes, Russians and pro-Russian persons commit heinous crimes, but this outrageous misconduct is permitted, if not glorified, by the authorities. As a result, impunity is cemented in an utterly misanthropic way. Although the Russian criminal legislation formally rests on the ideas of humanism, the adoption of the Bill—an acme of legal cynicism—will sever the ties of Russia with humanity.
Is criminality a Russian virtue worth cultivating? Unless we want the world to plunge into an abyss of barbarity, the answer must be an emphatic no. The international community ought to support all existing and nascent accountability mechanisms, notably a special tribunal for the punishment of the crime of aggression against Ukraine, as they can help to bring the culprits to justice.