The definition of a crime of aggression as a so-called leadership crime and Ukraine’s domestic laws explain why Ukrainian officials have discussed prosecuting Valery Gerasimov, the chief of the general staff of the Russian Armed Forces, on charges of aggressive war. It doesn’t explain, however, why the prosecutor’s office chose to try Alexandrov, Yerofeyev, and other relatively low-ranking Russians for the same crime. The extent to which an individual must control the actions of a state to be found guilty of aggressive war remains a subject of debate among legal scholars. But no serious analysis could conclude that Alexandrov or Yerofeyev met the requirements necessary for a conviction: both men are mid-level officers, tasked with carrying out the state’s directives, not designing them. Nevertheless, in its verdict, the court argued that the section of Ukrainian law that criminalizes aggressive war was based on the 1974 UN resolution—an apparent attempt to ground the trial in international law. Clearly, Ukraine is picking and choosing the portions of international law that suit its domestic purposes [...]
The politicization of the trial should come as no surprise: in today’s Ukraine, the executive’s preferences often take precedence over the law. Less than two weeks before the prisoner exchange, for example, the Ukrainian parliament voted to amend a national law in order to allow candidates without legal qualifications to become Ukraine’s prosecutor general so that Poroshenko could appoint an ally to the post. [...]
That logic was echoed in February 2015 by Irina Lutsenko, a deputy in Poroshenko’s parliamentary faction, who offered a revealing explanation of Kiev's decision not to ratify the Rome Statute, which would have brought Ukraine under the jurisdiction of the International Criminal Court in The Hague. Asked why Ukraine had not ratified the statute, Lutsenko responded, “for one, simple reason. Because Russia has the so-called ‘white book,’ [a widely disputed record of Ukrainian activity in the Donbas in which the Russian Ministry of Foreign Affairs] has fixated on the alleged crimes of Ukrainian soldiers, generals, and leaders… our soldiers will be called to The Hague to offer evidence, so that their morale will be somehow depressed.” (Although Ukraine still has not ratified the Rome Statute, in September 2015, the country accepted the ICC's indefinite jurisdiction over the conflict in the Donbas, exposing itself to potential prosecution at the court.)
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