Rough Waters or Smooth Sailing?

ABSTRACT Since Russia’s full-scale invasion of Ukraine, the entire country has become a crime scene, holding extensive evidence of alleged war crimes. More than 172,000 criminal proceedings have been initiated under Article 438 of the Criminal Code of Ukraine on charges of numerous violations of the laws and customs of war. Over the past three years, Ukrainian courts have delivered more than 100 war crimes judgments, covering a wide range of crimes, including murder, cruel treatment, sexual and gender-based violence, pillage, and attacks on civilians. This article discerns notable patterns in domestic war crimes trials by examining a dataset that comprises 91 judgments delivered between 24 February 2022 and 1 January 2025. It analyses six selected judgments related to cruel treatment, pillage, and sexual and gender-based violence rendered by first instance courts in the Kyiv, Poltava, Kherson, and Chernihiv regions. The article explores the application of Article 438 of the CCU in practice, reflecting on judicial reasoning, the assessment of evidence, and sentencing trends in selected war crimes judgments. It argues that Ukraine’s ratification of the Rome Statute is expected to enhance the domestic application of international law and improve the quality of legal reasoning in war crimes cases, as domestic judges will need to engage with the International Criminal Court’s legal framework and relevant case law. Additionally, it highlights the risk of in absentia trials becoming a formalistic tool for securing convictions rather than delivering justice. It underscores the importance of maintaining fair trial safeguards as stipulated in Article 6 of the European Convention on Human Rights to uphold the legitimacy of domestic accountability processes. The article concludes that the domestic prosecution and adjudication of war crimes must not be compromised by external political pressures placed on Ukraine and shifting geopolitical dynamics.