In the Ukrainian criminal code, the article 437 provides for punishment for the crime of aggression, but, compared to the Rome Statute, its definition is broader: it establishes punishment not only for planning or waging a war of aggression, but also for \u201cconducting\u201d it, and it does not explicitly specify who can be subject to this crime. Therefore, after Russia\u2019s aggression began in 2014, not only commanders but also low-ranking military personnel and members of Russian-controlled formations were tried under this article in Ukraine.<\/p>\n\n\n\n
Over the years, this approach began to change, and with the start of Russia\u2019s full-scale invasion, it entered a new phase.<\/p>\n\n\n\n
Early verdicts based on a broad definition<\/h2>\n\n\n\n
Toretsk, a mining town located about 70 kilometres from Donetsk, has been occupied twice during the Russian-Ukrainian war. First, in 2014, during the aggression of eastern Ukraine, though it was liberated almost immediately. The second time was in the summer of 2024. The city is currently under occupation. According to the Unified state register of court decisions, it was precisely in Toretsk in the fall of 2015 that the local Dzerzhynskyi Court issued Ukraine\u2019s first verdict<\/a> for the crime of aggression.<\/p>\n\n\n\n The defendants were Russian citizen Vladimir Starkov and Ukrainian citizen Ruslan Iotko. According to the case<\/a> materials, Starkov served in the Russian army. His unit was based in the Rostov region of the Russian Federation. In March 2015, he and other Russian soldiers were deployed to the Donetsk region. There, he led a unit of the Russian-controlled Donetsk People\u2019s Republic (DNR) formation. He oversaw inventory and distribution of ammunition. Ukrainian native Lotko joined this unit in Makiivka, Donetsk region. He was repairing trucks and transporting weapons. In July 2015, while they were transporting ammunition from Donetsk, both were detained by the Ukrainian military.<\/p>\n\n\n\n The State border service later reported<\/a> on their capture and published photos and videos of the special operation. The photos show<\/a> the truck loaded with ammunition. The video<\/a> reveals the Russian man\u2019s first words after being captured. He admitted that he had come to Donetsk from Russia, and was carrying a forged passport to hide his connection to Russia. Investigators charged both men with several offenses. Among them was conduct of an aggressive war.<\/p>\n\n\n\n The defendants pleaded guilty. As a result, the trial was held according to a simplified procedure. In other words, not all the evidence was examined. The defendants\u2019 attorneys did not object to this. Starkov was sentenced to 14 years in prison, and Lotko to 10. The court noted that the defendants had conducted an aggressive war, as they had transported ammunition used by the DNR in hostilities against Ukraine. This verdict was not appealed. In December 2015, Starkov was pardoned by President Petro Poroshenko. The Russian was exchanged<\/a> for Andrii Hrechanov, call sign \u2018Rakhman,\u2019 the head of the intelligence division of the 81st Airborne assault brigade of the Ukrainian armed forces. Whether Lotko was also exchanged remains unknown.<\/p>\n\n\n\n Between 2015 and 2017, Ukrainian courts<\/a> issued at least seven verdicts in which article 437 was among the charges. The following individuals were found guilty of conducting an aggressive war: a captain and a sergeant <\/a>of the Russian military intelligence, a checkpoint and security guard<\/a> of the DNR, the deputy commander <\/a>of one of the DNR units, a commander<\/a> of a DNR platoon, a commander<\/a> and a tank gunner who served in DNR units, and a serviceman<\/a> of a DNR unit.<\/p>\n\n\n\n The first doubts about the broad interpretation of article 437 were raised in June 2017 in the case of Serhii Pylypenko. According to the verdict<\/a>, he joined the DNR People\u2019s Militia in 2014, and was responsible for guarding warehouses, digging trenches, and keeping captured Ukrainian soldiers under surveillance.<\/p>\n\n\n\n Two of the three judges on the panel of the Slovianskyi City and District Court in Donetsk region found that by carrying out his duties, Pylypenko had acted as an accomplice in the conduct of an aggressive war. However, one of the judges issued a dissenting opinion<\/a>. She emphasized that, under international law, aggression is the use of force by one state against another, and conducting an aggressive war involves executive actions: the implementation of military plans, the command of troops, or the conduct of operations. Therefore, not just any member of an armed group can be the perpetrator of such a crime<\/a>. The individual must have the appropriate authority and influence over the course of the war. Pylypenko was not a high-ranking officer. Therefore, the judge suggested his acquittal under article 437.<\/p>\n\n\n\n A dissenting opinion with the same reasoning was issued<\/a> by the judge in the case of Russian citizen Andrei Langer. In 2017, the Krasnoarmiyskyi City and District Court of Donetsk region found<\/a> him guilty of the crime<\/a> of aggression. According to the verdict, Langer joined the DNR\u2019s illegal armed formation in 2015. He arrived in Ukraine from a Russian prison. He was offered release in exchange for military service. <\/p>\n\n\n\n In his dissenting opinion, the judge cited the international standard for the perpetrator of a crime. Therefore, the court concluded that Langer, as a low-ranking soldier, clearly did not meet the criteria and should be acquitted. The judge also stated<\/a> that eastern Ukraine was currently experiencing \u201can internal armed conflict\u2019, \u201cwithin the borders of a sovereign state\u201d, and not a war of aggression.<\/p>\n\n\n\n Acquittals were also issued in 2017. In particular, the courts found Russian citizen Arkadiy Zhidkikh, a cook<\/a> in a DNR unit, Ukrainian Fedor Degilevich who kept watch at military positions, and Ukrainian Oleksii Kryvosheiev who repaired equipement<\/a>, not guilty of conducting a war of aggression. <\/p>\n\n\n\n While there was case law acquitting defendants in cases involving the crime of aggression, it was not consistent. Between 2018 and 2021, the courts issued more verdicts finding subordinate military personnel guilty under article 437. The convicted individuals were low-ranking servicemen: military intelligence officers, ordinary soldiers, tank commanders, leaders of small units So two opposing approaches existed during this period. A complete list of court decisions from this period was published<\/a> in an analytical study by the Media Initiative for Human Rights<\/a>.<\/p>\n\n\n\n Most notable on this list is the sentence<\/a> issued against fugitive President Viktor Yanukovych, charged with complicity in waging a war of aggression. Yanukovych\u2019s guilt was primarily substantiated by his written statement dated March 1, 2014, addressed to Russian president Vladimir Putin, where he requested the deployment of Russian troops in Ukraine. Putin quoted it as the legal basis for the military intervention. <\/p>\n\n\n\n The Obolonskyi District Court of Kyiv reviewed the text of the request, the transcripts of UN meetings where the Russians read it out, and interviews with Yanukovych himself. He publicly acknowledged that he had signed the document. In 2019, the court concluded that, given his high political status, the former president had helped Russia create the appearance of legitimate invasion. Thus, the court ruled in absentia that he was an accomplice in the crime of aggression<\/a>. <\/p>\n\n\n\n Another prominent case, in terms of the official\u2019s rank, was the verdict against retired Russian Vice Admiral Oleg Belaventsov. According to the verdict,<\/a> in March 2014, the defendant was an official representative of the Russian president. He pressured the command of the Ukrainian Navy to side with Russia or to make no resistance. He was offering positions and higher salaries, as well as threatening with retaliation. His role was confirmed by testimony of Ukrainian servicemen, video interviews, and expert reports.<\/p>\n\n\n\n The court ruled that, as a key member of the Russian leadership, Belaventsov contributed to the waging of an aggressive war. In March 2019, ruling in absentia, the Sviatoshynskyi District Court of Kyiv found<\/a> him guilty of aiding and abetting the waging of an aggressive war and of modifying the borders of Ukraine.<\/p>\n\n\n\t In 2024, the Grand Chamber of the Supreme Court finally established a clear distinction : in its ruling<\/a> of 28 February 2024, it explained<\/a> that under article 437, not just any participant in the war can be prosecuted, but only a person capable of controlling political<\/a> or military actions, commanding them, or significantly influencing the relevant decisions. This would require the person to have the sufficient authority, resources, or social status.<\/p>\n\n\n\n The case was heard based on claims filed by lawyers representing members of the Russian-controlled <\/a>Luhansk People\u2019s Republic<\/a><\/a><\/a><\/a> (LNR) militia. They shelled Ukrainian positions, abducted civilians, and forced them to carry out military labour. However, they were acting under orders from their superiors and had no influence on decisions regarding the conduct of the war.<\/p>\n\n\n\n Thus, the Grand chamber overturned the conviction regarding the proof of guilt under article 437 but upheld its decisions on the other charges. The Supreme Court thereby established the fundamental principle that the crime<\/a> of aggression is a crime of leadership, and that participation in combat operations or the execution of orders is insufficient to support such a charge.<\/p>\n\n\n\n Since the start of the full-scale invasion, Ukrainian courts have already issued six<\/a> verdicts that mention the crime of aggression. Five of them concern individuals with high-level government or military authority: the former commander of the Russian Federation\u2019s Black Sea fleet, the minister of Transport, three generals of the Russian national guard, and the captain of a cargo ship. All six were tried in absentia. Five were sentenced to 15 years in prison, and the captain to 12 years.<\/p>\n\n\n\n The former commander of the Russian Federation\u2019s Black Sea fleet, Alexander Vitko, was sentenced<\/a> by the Dniprovskyi District Court of Kyiv in May 2023. Although the verdict was issued during the Great War, the case referred to the 2014 occupation of Crimea. Following his orders, Russian forces blocked Ukrainian military units and government agencies. He was found guilty under article 437 because of his ability to plan the operation and determine which facilities were to be seized.<\/p>\n\n\n\n The three other verdicts concern the Russian National Guard commanders in the occupied south of Ukraine. The highest-ranking official among them was Colonel General Igor Turcheniuk, commander of the \u201cSouth\u201d military formation. <\/p>\n\n\n\n According to the verdict<\/a>, the headquarters, divisions, regiments, battalions, special-purpose units, and other subunits operating in the Kherson, Mykolaiv, and Zaporizhzhia regions were under his command. The court established that Turcheniuk ensured the units\u2019 invasion through Chonhar, Kalanchak, and Chaplynka and organised their special operations in the occupied territories.<\/p>\n\n\n\n Lower down in this chain of command were Lieutenant General Vladimir Spiridonov<\/a> and Major General Mikhail Kalupin<\/a>. Spiridonov commanded four tactical groups, a special-purpose detachment, and an operational group, with the authority to assign duties, coordinate units with other security forces, oversee their movements, and assess results. As for Kalupin<\/a>, he commanded the 50th Separate Special Operations Brigade and, led the operational group of its auxiliary command post. Six tactical and battalion groups were under his command.<\/p>\n\n\n\n The \u201ccivilian\u201d sphere is represented by Russian Transport minister Vitaly Savelyev. According to the verdict<\/a>, he did not command troops but had control over the strategic transportation sector. According to the verdict, Savelyev used his authority to supply railcars, establish a railway rolling stock reserve, and organise the priority transport of troops, military equipment, and ammunition. The court ruled that this constituted aiding and abetting the waging of a war of aggression by providing resources and eliminating obstructions to Russian military logistics.<\/p>\n\n\n\n The sentence<\/a> issued to Oleksiy Tereshchenko, captain of the vessel \u201cSPARTA-IV\u201d is more questionable. In 2023, his boat transported two \u201cPantsir-S1\u201d systems, 11 \u201cUral-4320\u201d trucks, and six trailers from the Syrian port of Tartus to Novorossiysk. As captain, Tereshchenko commanded the crew, supervised the loading process, managed the shipping documents, and determined the ship\u2019s route. The court also found him guilty of concealing the vessel\u2019s movements by turning off the AIS system.<\/p>\n\n\n\n The court found this kind of authority to be sufficient to constitute aiding and abetting the waging of a war of aggression, but, the verdict does not assess whether the captain could have significantly influenced military operations or directed a specific aspect of military action, as required by the Supreme Court\u2019s ruling. The court equated control over a single vessel and a specific shipment with the necessary level of contribution to the aggression.<\/p>\n\n\n\n Currently, nine cases in absentia are pending in the courts, in which the defendants are charged, among other things, with the crime<\/a> of aggression. The defendants include Russian ministers, commanders of major Russian combat units, heads of state-owned arms enterprises, and others. In addition, charges have been brought against<\/a> at least 293 officials deemed by Ukrainian investigators to be involved in waging a war of aggression. <\/p>\n\n\n\n In June of this year, Andrii Yakovlev and Anna Rassamakhina, experts on international humanitarian law with the Media Initiative for Human Rights, published an analytical study on the Ukrainian judicial system\u2019s approaches to prosecuting the crime of aggression.<\/p>\n\n\n\n The early practice referred to the specific provisions of article 437 itself, says Yakovlev. Its wording is based on the old Nuremberg model, which covered not only the planning, preparation, and waging of a war of aggression, but also its conduct. Later, international law adopted a narrower approach. Under the Rome Statute, the crime of aggression can be committed by a person capable of controlling political or military actions of a state or commanding them. What matters is not the title of the position, but the actual influence over state decisions.<\/p>\n\n\n\n In practice this refers to a very narrow circle of the highest political and military leadership, says Rassamakhina. Holding a command position or participating in combat operations is not enough. \u201cThe approach of the Rome Statute is that this is a crime committed by the highest leadership. It refers to those who directly influence a state\u2019s decision to initiate aggression,\u201d she explains.<\/p>\n\n\n\n \u201cWe faced two problems. First, the article refers to the conducting of an aggressive war. Second, it does not specify a particular perpetrator. International law associated aggression with leaders, but law enforcement officials looked at the Code and did not see any such restriction there,\u201d Yakovlev says. \u201cThere was no ill intent behind this. The problem became apparent in practice: the law was open to broad interpretation, although the prevailing view among legal experts was that the crime of aggression must be committed by a leader,\u201d Yakovlev notes.<\/p>\n\n\n\n After the Supreme Court\u2019s 2024 ruling, the investigation changed its approach. \u201cCurrently, investigative and judicial practice tends to avoid prosecuting lower-level perpetrators. We\u2019re talking about the middle ranks \u2014 those who make a substantial contribution to the acts of aggression,\u201d Rassamakhina says.<\/p>\n\n\n\n At the same time, the Supreme Court could not remove the concept of \u201cwaging a war of aggression\u201d from the Code. \u201cThe court can clarify the law and set judicial practice back on the right track, but it cannot chart a new course. It is up to the legislator to amend the text of the article itself,\u201d Yakovlev explains.<\/p>\n\n\n\n The current Ukrainian approach is still broader than the International Criminal Court\u2019s model. According to Rassamakhina\u2019s estimate, a significant number of defendants in Ukrainian proceedings might not meet the criteria for being a perpetrator of the crime of aggression under the Rome Statute.<\/p>\n\n\n\n![\"Stacks](\"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Ukraine_russian-ammunition-Donetsk_@State-Border-Guard-Service.jpg\")
The first acquittals under article 437<\/h2>\n\n\n\n
The cases of Viktor Yanukovych and Oleg Belaventsov<\/h2>\n\n\n\n
A crime of leadership<\/h2>\n\n\n\n
The approach during the \u201cGreat War\u201d<\/h2>\n\n\n\n
![\"Signing](\"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Ukraine-Europe_Special-Tribunal-Crime-of-Aggression-agreement_@Council-of-Europe.jpg\")
The new approach and the international standard<\/h2>\n\n\n\n
![\"Special](\"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Europe-Moldova-Ukraine_Council-of-Europe-crime-of-aggression_@COE-540x360.jpg\")
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