For present purposes will is defined as the willingness of the state to implement the necessary reforms pertaining to legislation, infrastructure and allocating resources in order to ensure fair and effective international justice. While overall Ukraine has made some progress in respect of necessary domestic legislative and infrastructural changes since the start of the armed conflict in 2014 (for example with the recent amendments to the Criminal procedure code on time limits on the investigations of what considered in Ukrainian Criminal code grave crimes, or incorporating provisions on cooperation with the ICC, albeit, not of high quality, amendments to the Criminal Code of Ukraine following the Rome Statute ratification)), the progress has been exceptionally slow and vastly insufficient.
Lack of political will to prioritise fair and effective justice could be seen in the part of Ukraine, as well as to an extent by the international community in the years preceding to the full-scale invasion through a number of examples, for instance, though not exhaustively: relentless and inappropriate political interferences[43]; a lack of political support where it would have been vital (e.g. failure by the President to sign the IHL implementation legislation, ratification of the Rome Statute); a failure to establish the necessary infrastructure, including in terms of capacity and expertise, at the level of investigative authorities and courts in a timely manner, failure to appoint competent professionals to relevant investigative, prosecutorial and judicial positions among others; and an overall failure to provide sufficient resources, where these were required to pursue fair and effective justice processes, have all resulted in the failure to combat impunity, that in turn has led to the full-scale invasion of Ukraine by Russia. Had there been timely and effective prosecutions and those responsible for the alleged international crimes committed prior to the full-scale invasion would have been brought to accountability, it is likely they would have served as a deterrent to the subsequent tragic events.
However, international justice related responses drastically changed following the full-scale invasion and many of the solutions to the challenges that had already been identified before February 2022 but had not been prioritised by the Ukraine’s government and/or by the international partners continued to require implementation. Rather than implementing identified solutions or requirements for a fair and effective Ukrainian justice architecture, it appears that significant time and resources are being spent on “rediscovering” and “re-identifying” solutions rather than looking for effective ways to implement them. Examples include: lack of suitable legislations in place, approaches to prioritisation and classification of offences, resources required to deliver results, etc.[44]
Adherence to the rule of law has always been one of the most glaring blind spots of the Ukrainian state system. While every political leader has proclaimed their government’s devotion to the rule of law since Ukraine gained independence in 1991 as to its critical role in Ukraine’s democracy, the rule of law has never been a principle that has been unconditionally recognised, adhered to and followed through in practice. Judicial system of Ukraine has always struggled to be independent, fair and impartial. Oftentimes it has widely been used as a political instrument for inter alia, punishment, persecution and manipulation.[45].
While the assessment of the Ukraine’s adherence to the rule of law and fundamental rights in the report published by the European Commission for 2023 appears overall somewhat reserved, recognising legislative progress that had already been made while identifying gaps that had yet to be removed, such as aligning domestic criminal law with international standards and stating that Ukraine has not ratified the Rome Statute[46]. The national polls conducted throughout 2023 demonstrate a very telling picture from Ukrainian population’s perspective that there was no confidence in the judicial system to be able to ensure fundamental rights in accordance with the principle of the rule of law. Thus, at the beginning of 2023 the level of distrust to the judicial system in general was at 59%[47] and towards the end of 2023 confidence in the justice system had not improved much with 58% being the national average of people who had no or very little confidence in the judicial system. Within some cities, lack of confidence was even higher – fluctuating between 63 -71%[48].
The armed conflict 2014-2022 and the increased incidents of crimes under international law requiring justice which accompanied this period, should have served as a catalyst for the reform of the Ukrainian justice system. Instead the decades-long judicial reform remained in deadlock during the years prior to full-scale invasion and served to practically incapacitate the entire justice process. This being in addition to the lack of any genuine willingness to improve Ukraine’s domestic legislation, legal and judicial infrastructure, and to allocate required capacity and resources to tackle 2014-2022 conflict-related cases.
Since the full-scale invasion in February 2022, the progress that the EC commission refers to in its report[49] and the unlocking of previously deadlocked judicial reform as well as anti-corruption reforms have all undoubtedly been a result of the pressure and conditions of financial support from Ukraine’s international partners.[50] Of course ensuring international justice and accountability for the atrocity crimes is a matter of international relevance and concern and the domestic system should be seen as due to, and impacting on the demands placed on Ukraine as a state actor in the global justice “ecosystem”. Ensuring that Ukraine’s domestic legal system is fully and appropriately reformed, placing it in a position to be able genuinely to investigate and prosecute crimes under international law, as well as to cooperate and complement other international justice initiatives is cornerstone piece in the puzzle of truly international justice responses to the Ukraine conflict from 2014 to present. If this piece is missing, the rest of the puzzle will not come together.
While there have been many justice related initiatives launched by states[51] and international mechanisms since February 2022, enormous amounts of resources have also been poured into ensuring accountability for grave crimes committed in Ukraine in the past three years. Despite this, the domestic system remains significantly incapacitated. The impact of such a lack of capacity is significant as Ukraine will be obliged to undertake the overwhelming majority of investigations and prosecutions arising from the present phase of the aggression, recognising that, while crucial the ICC and those states undertaking “universal jurisdiction” initiatives have – in light of the demands for international justice in Ukraine – a very limited capacity as well as so many other conflict situations requiring their attention. It is clear, of course, that many of the challenges that Ukraine faces to pursue fair and effective international justice while the conflict continues are very significant (and would be significant for any state in a similar position), and to an extent beyond its control. However, very few, if any issues and challenges to pursuing genuine domestic justice for victims of Russian aggression in Ukraine are – in fact – insurmountable. Above all, victims have been demanding international justice since 2014, and these demands will continue to grow as tragically, the number of victims increases and crimes under international law continue to be committed. Yet victims have been promised justice and the expectation is that it will be delivered sooner rather than later.[52]
Therefore, it is crucial that political will to increase the capacity of Ukraine’s domestic legal system at all levels is generated in Ukraine, but also within the international community. Ukraine’s international partners must be willing to support international justice processes and mechanisms for Ukraine on the domestic Ukrainian level as well as the international. As discussed, an effective and strengthened international justice response for Ukraine (which could serve as a model for other country situations) would serve to enhance the capacity of the entire global international justice system – which should be considered in the interest of the interest of the international community. However, any international justice “solutions' must be based on a thorough, genuine, impartial and comprehensive analysis of quantitative and qualitative data which serves to demonstrate the current gaps and needs of the domestic system of Ukraine. Ultimately, Ukraine will require a comprehensive, coherent, and strategic ‘justice response’ that is designed to strengthen Ukraine’s legal framework and justice ‘architecture’ as a whole, rather than a somewhat reactionary and piecemeal justice response and approach to “capacity building” which has been presently undertaken in relation to separate legal and judicial institutions in Ukraine by responding to their individual requests. They are oftentimes based on very limited and fragmented knowledge and understanding of how to genuinely ensure international justice for crimes committed in Ukraine. Every amendment to Ukraine’s legal framework and legislation, every allocation of capacity and resources, every proposed domestic institutional response, and ultimately any international justice mechanism, response which will be required must be a puzzle piece, part of a comprehensive international justice response to the demands arising from the present conflict, but which must also be designed with legacy and the future in mind – which would include cementing a strengthened long-term international justice architecture for Ukraine. To formulate and implement such a response will require the strategic vision of Ukrainian and international leaders, relevant experts and other crucial stakeholders. Above all any justice response must be effective and meaningful for victims and those affected by international crimes. It must be steadfast, trustworthy and should allow those who have been bearing the brunt of the war, who lost their sons, daughters, children, parents, brothers, sisters to atrocity crimes not to become disillusioned with governments and political leaders have, to this point failed at building a system capable of delivering justice for the atrocities committed during the largest war in Europe in the past 70 years.
