Conclusions and Recommendations

Key findings and next milestones

Conclusions

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Since ancient times philosophers, law and policymakers, advocates, activists have been debating the meaning of “justice”. From Plato’s “Republic” and Kant’s “Metaphysics of Morals” to modern definitions of justice, the concept has greatly evolved and expanded in various dimensions and by adding on different elements to it over the centuries. The nature of the evolution of justice has been weaved from the lessons learned based on humanity’s accumulated experience and evolution of the world as well as human values. Accountability as one of the elements of justice was articulated over 2000 years ago and to this day, if ensured properly, is perceived as one of the fundamental deterrents of future injustice including that which is caused by wars[1]. Russia’s war against Ukraine has had a profound effect on the geopolitical, geo-economic and geo-social status quo of the world, caused tectonic shifts and deepened divisions and its effect will continue to reverberate throughout the decades to come. Unless the world provides a consolidated, streamlined and coherent justice response, the global chasm that has been created will only continue to expand.

For over 10 years, Russia’s war of aggression and its annexation and occupation of Ukrainian territory has caused ever-increasing harm and injustice to the Ukrainian people, including through the commission of crimes under international law – for example, illegal detention, torture, rape, murder, forcible transfer or deportation, imposition of its citizenship, destruction of critical civilian infrastructure, the abduction of children and many more. It is well established that all of these allegations would amount to violations of international humanitarian and international criminal law, as well as international human rights law. The scale of the violations is also immense in terms of the widespread and often systematic nature of crimes committed, as well as the quantitative and qualitative gravity. If such crimes or violations are not investigated and prosecuted, or perpetrators are not deterred in their actions through being held accountable, on the international stage this may set another precedent of impunity, and may provide a level of encouragement to other states or actors which may be inclined to employ similar methods of warfare - inevitably posing a threat to humanity and the international legal order.

In Ukraine truth, justice and reparations for victims and survivors are inevitably interconnected with effective accountability of individual perpetrators through fair trials. Such justice related processes are necessary for the entire population to heal and to be given hope in the form of eventual accountability for all of the injustices that have been caused throughout the last decade. Absent effective and meaningful justice, generations will likely harbour hatred, dissatisfaction, pain and suffering which may erode society, adversely affecting its future progress and development.

Nevertheless, Ukraine - perhaps uniquely - compared to other states in the world suffering from the consequence of wars received an unprecedented international justice-related response in reaction to Russia’s full-scale invasion in February 2022. The reaction of the international community to the invasion demonstrated and proved two crucial points:

hat dealing with the consequences of the full-scale invasion is not and should not be only Ukraine’s responsibility, particularly in ensuring justice and accountability for grave international crimes, rather this is the responsibility of the entire international community;
justice and accountability is one of the most important elements of how states respond to atrocities committed during warfare.

Overall, in as much as both statements are valid, Ukraine’s experience so far has demonstrated that a comprehensive, effective and fair international justice response, on the international and Ukrainian level can only be properly achieved when effective and appropriate (tailored to ‘needs’ where necessary) international and domestic mechanisms, as well as a strengthened and comprehensive justice architecture are put in place. Of course, it is crucial to provide that the challenges facing Ukraine to pursue international justice are very significant – including challenges related to the scale of ongoing-criminality and significant difficulties to investigate and prosecute crimes under international law during an ongoing conflict. Indeed, many of these challenges would not be unique to Ukraine: many states would face struggles to pursue justice in similar circumstances.

However, these challenges notwithstanding, this report has presented a ‘needs assessment’ which is a vital exercise for future accountability in Ukraine and which has aimed to ascertain the complex challenges which exist in the Ukrainian criminal justice system. In particular ‘accountability gaps’ as they relate to Ukraine’s ability to investigate and prosecute an overwhelming number of individual and senior-level perpetrators of ongoing atrocity crimes, involving vast numbers of victims. Indeed, any future Ukrainian justice strategy, or international and national proposals for achieving international justice, should be based upon a comprehensive mapping and needs assessment of Ukraine’s capacity to investigate and prosecute crimes vis-à-vis the capacity and resources of the international and regional justice mechanisms engaged, as well as a similar mapping and assessment of victims.

It is hoped that in presenting empirical evidence of the ‘gaps’ in the Ukrainian system, a more ‘tailored’ international justice response can be considered and proposed. It is also envisaged that international actors should be influenced in their positions, having been presented with an assessment of Ukraine’s legal capacity and justice architecture.

In this regard, the current report has assessed that there are multiple pertaining challenges both at the domestic and international levels which must urgently be overcome to pursue international justice:

The Ukrainian legal system does not currently have adequate technical and legal capacity to administer fair and effective justice and truth, justice and reparations for victims and reach the human rights standards demanded by the European Convention on Human Rights and other human rights treaties. Addressing this requires substantial legislative, infrastructural and resource-related changes.
Taking into account the scale and number of expected cases, international institutions and third-states undertaking domestic investigations have very limited capacity to address the enormous scale of atrocity crimes committed in Ukraine. Where these responses are occurring they demonstrate a fragmented approach to international justice and accountability solutions;
The existing architecture of justice in Ukraine and internationally is not fit to provide sufficient and effective response to the scale of atrocities caused by the Russian war of aggression against Ukraine.

Based on the above assessment the most effective and efficient solution to deal with such an enormous scale of violations requires urgent and further consideration. While further details could be ascertained and set out in further reports, it appears most appropriate at this stage, and based on the assessment carried out, that a strategic international justice response would require a comprehensive and complementary ‘tiered’ accountability architecture - supported by relevant compensation and reparations mechanism(s).

[1] Plato, Republic, c 375 BC.

Recommendations

To this end, it is recommended that both the international community and Ukraine consider establishing a three-tiered system of justice for core international crimes:

TIER 1

The International Criminal Court as an apex court

likely focusing on top level political and military leaders, those ‘most responsible’ and particularly ‘challenging’ cases

In relation to the ICC, it is imperative that Ukraine accepts the full jurisdiction of the Court by withdrawing its declaration under Article 124 and implementing the Rome Statute provisions into the domestic system as well as actively supporting the work of the Court as a state party. This will allow for better cooperation not only with the ICC itself but also with other states parties in relation to obligations and opportunities provided by the Rome Statute. These include: the execution of arrest warrants; the distribution of the Court’s resources; Ukraine’s official “presence” at the Assembly of States Parties to the Rome Statute; participation in working groups such as the Hague Working Group and the New York Working Group; Ukraine’s nomination and potential participation in Court’s elections of judges and principals.

The implementation of the above broad strategic justice architecture should allow the ICC to share the enormous burden that currently rests upon it to conduct investigations and prosecutions into those most responsible, as well as in the form of expectations from a huge number of victims the Ukrainian authorities. The ICC has significant advantages: in the obligatory nature of cooperation from its state parties, and a clear legal mandate to investigate senior-leaders without any possibility of immunity, as well as the necessary authority and experience in investigating and prosecuting grave international crimes. Further, in the future, in the proposed architecture, the sharing of evidence between the ICC and an internationalised mechanism could also be foreseen, as was successfully achieved between the ICTY and the Bosnian War Crimes Chambers. Related, Article 93 (10) of the Rome Statute envisions a cooperation framework with State Parties, where the ICC-OTP can share evidence with member states.

However, two crucial points should be borne in mind by Ukrainian authorities and victims, which are that the ICC:

operates under the principle of complementarity, and consequently the largest burden based on the complementarity obligation rests on the domestic authorities to investigate and prosecute Rome Statute crimes;
has limited and scarce resources – particularly when considering the resources which will be required to pursue comprehensive justice in Ukraine - and furthermore, the Court is currently investigating in 12 situation countries, including Ukraine.

In addition, the political situation around the Court and the large-scale challenges it faces affect realistic expectations of the ICC's work. Currently, the institution is in a critical situation due to persistent member state failure to implement their treaty obligations, alongside attacks and threats against the ICC, including imposed sanctions. Although the Court is an independent institution responsible for ensuring international justice; complementary cooperation with states, and embodies the hope of a large number of victims of international crimes, its further work depends on political decisions. The states parties to the Court's system are expected to demonstrate a common and strong position that will offset the influence of non-parties to the Rome Statute, defend the ICC and ensure unequivocal compliance with its decisions. At the same time, the situation around the work of the ICC only confirms the need for Ukraine to have an effective and sustainable architecture of justice for core international crimes, resilient, in particular, to political turbulunces.

TIER 2

A “hybrid”/internationalised mechanism with jurisdiction to investigate and prosecute all core crimes

(focusing – given the ICC’s current mandate – particularly at present on low and mid-level perpetrators)

Its mandate should provide that capacity building and ‘legacy’ are integral to the mechanism’s operation, and that such a mechanism’s mandate will continue until it is ‘complete’ – that is when all required cases have been investigated and prosecuted.

In relation to complementarity, Ukrainian domestic authorities’ capacity to prosecute grave international crimes is extremely limited and in over 10 years of the ongoing war it has not been built to a sufficient degree. All the efforts that have been undertaken by the international community in building the capacity have yielded little or no meaningful effect due to the numerous reasons discussed above. In order to build the capacity of Ukraine’s domestic legal system, it appears necessary to establish a “hybrid”/internationalised accountability mechanism which could be based on numerous examples of and draw lessons learned from previously established mechanisms, for example in Bosnia and Herzegovina, Sierra Leone, or the Central African Republic.

In establishing a “hybrid”/internationalised mechanism, various possibilities exist for the legal basis of such a mechanism. For example, one option could be to consider the Council of Europe’s recent developments concerning the Special Tribunal for the crime of aggression, which could serve as a legal basis for a hybrid response, with its subject-matter jurisdiction expanded to include other core international crimes. But in the alternative, the UN General Assembly could provide perhaps the most legitimate and broadly global legal basis and counterpart in a hybrid arrangement. Such a legal framework could also strengthen state cooperation obligations, as well as addressing potential immunities challenges. Of course, the nature of a hybrid justice response does not require restriction of a legal basis or potential counterparts to one body. Roles could be played by any or all of the CoE, the UN, the EU, alongside Ukraine.

Insofar as the hybrid/internationalised mechanism issues related to the legal framework and modalities of such a model require significant consideration. However, briefly, “hybrid” tribunals present several distinct characteristics that sets them apart from purely domestic or purely international tribunals.

“Hybrid” tribunals often utilise both domestic and international sources of law, and thus - generally - incorporate elements of existing domestic criminal law, while also addressing serious violations of international criminal, human rights and humanitarian law through the incorporation of such legal frameworks.
“Hybrid” tribunals may also include both domestic and international personnel. The employment of ‘mixed’ staff should – if properly carried out - promote capacity building within the domestic legal and judicial system, through the incorporation of knowledge and experience from international personnel.
"Hybrid" tribunals can be located in or close to the affected state which should ensure that the affected population is able to access criminal proceedings which can, in turn, contribute to an effective and meaningful future justice process.

Canvassing all the options to create a “hybrid model” is beyond the scope of this report, however it is worth noting that there is no standard model for establishing a “hybrid” tribunal as such, which enables a measure of flexibility and tailoring of any design to suit particular needs of a state or situation. However, existing state practice reflects that “hybrid” tribunals have been established: (i) under UN administration; (ii) by bilateral agreement; (iii) as a domestic court with international elements; and (iv) by Security Council resolution.

Presently, one of the primary obstacles raised to the establishment of a hybrid tribunal for Ukraine is the required amendment to the Constitution of Ukraine which is impossible to enact while there is martial law in place. Consequently, the establishment of such a tribunal will only be possible after lifting of the martial law. Alternatively, an internationalised court outside of Ukraine’s jurisdiction may be established, whereby Ukraine will ‘transfer’ part of its jurisdiction to such an international mechanism, this should avoid the need to amend the Constitution of Ukraine while martial law is still in place. In both instances, legislative amendments to the CPCU, Law of Ukraine on National Police, on State Security Service, State Bureau of Investigations and Public Prosecutor’s Office[2] and Judiciary and Status of Judges will be required[3].

Other challenges to be overcome in the establishment of a ‘hybrid’ mechanism include the necessary level of domestic and international political will to establish such a mechanism; the overcoming of personal immunities through a suitable ‘international element’ in the hybrid’s design and legal basis; and clearly defined jurisdiction to avoid jurisdictional conflicts with other international justice processes, and mechanisms including principally the ICC. However, many of these challenges have been considered in the design and implementation of other hybrid justice responses, which could serve as examples from which a design suitable to Ukraine’s situation could be adopted. Additionally, there is no off-the-shelf model that Ukraine should copy, but when developing a design for Ukraine, it is worth using both positive and negative lessons from other examples.

[2] Law on the Public Prosecutor’s Office of Ukraine (unofficial translation): https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2014)047-e.

[3] Law of Ukraine on Judiciary and Status of Judges: (https://vkksu.gov.ua/sites/default/files/field/file/lu_jst.pdf.

TIER 3

Specialization within the domestic justice system

Introduced in investigative bodies, prosecutors and courts or separate chambers in appellate courts and the Supreme Court, (focussing on investigating crimes against the foundations of national security committed in the context of armed conflict and the responsibility of direct perpetrators of grave international crimes who are citizens of Ukraine, including members of illegal armed groups)

Third tier envisages a specialisation at the domestic level. It can be based on the anti-corruption model implemented in Ukraine. This tier is needed in order to process fairly and objectively all the alleged crimes that concern crimes of collaboration, high treason, propaganda, terrorism and adjacent alleged violation that fall into the category of crimes against national security in the context of armed conflict. Although they do not fall into the category of international crimes, there have been thousands of such investigations pending. In addition, such specialization should include proceedings against Ukrainian citizens who are direct perpetrators of core international crimes. The established national practice is that such facts are considered in conjunction with crimes against the foundations of national security, in particular against members of illegal armed groups or persons who collaborated with the occupation authorities. Given the ratification of the Rome Statute by Ukraine with the reservation of Article 124, it is expected that an effective system of prosecution of core crimes will operate at the national level, supporting the decision.

Such specialization will require amendments to the Criminal Procedure Code of Ukraine and the Law of Ukraine ‘On the National Police of Ukraine’, Law of Ukraine on SBI to expand its jurisdiction to include offences against national security (currently it is only limited to the state officials/accused of abuse of power, military crimes, etc), Law on SSU (to remove investigative jurisdiction in respect of armed conflict related violations), Law of Ukraine on Public Prosecutors’ Office, and the Law of Ukraine on Judiciary and Status of Judges.

The ICC and “hybrid”/internationalised tribunal are the only two possible options to provide truly impartial justice to a great number of victims of international crimes. Ukraine, as a party to the armed conflict, cannot reasonably be expected to fulfill this crucial mission.

All three tiers will also require cooperation agreements in place between one another and clearly distinguished subject matter jurisdiction. Furthermore, as the top two tiers may have to have an overlapping jurisdiction, namely war crimes and crimes against humanity, for instance, it will be critical to put in place clear prosecutorial strategies vis-à-vis perpetrators.

Regardless of when and whether proposed architecture will be implemented in part or in its entirety, the following recommendations should be implemented as part of the broader law reform within the framework of the EU accession process:

Criminal Code of Ukraine:

all core crimes must be immediately harmonized and clearly defined in accordance with international definitions in addition to inclusion of retrospective application; the draft law No. 2689, adopted by the Verkhovna Rada in May 2021, should be used as a basis for amendments to the Code;
review and amend Articles 27-28 (complicity in committing crimes) to align them with the international standards on modes of participation, aiding and abetting and (possibly) joint criminal enterprise.

Criminal Procedure Code of Ukraine:

as a matter of priority, review and amend Article 216 to authorise the National Police to undertake investigations pursuant to Chapter XX;
amend Articles 89-91 as relevant for open-source evidence and align them with international standards such as the Berkeley Protocol in respect of the verification and storage of such evidence also, taking into account best practices and experience from third country jurisdictions and international mechanisms such as the IIIM (Syria) and IIMM (Myanmar);
amend provisions on/develop procedures for the secure storage of physical evidence and chain of custody when investigating international crimes;
develop procedures to make intelligence information admissible in the courts of law;
in relation to in absentia provisions: provide that priority should be given to the prosecution offences against peace, security, humanity and international order under Articles 436-447 (XX chapter) as a matter of public interest and to ensure guarantees of the right to fair trial. Certain issues may be investigated in absentia in exceptional cases, taking into account current approaches in international law and the ICC case-law. Include the right to retrial; as regards notification of a suspect: article 297(5) (notification via state press outlets) must not be applied in relation to armed conflict, instead it is recommended to place suspect on the national wanted list, notification must be made by all accessible means; institutions providing administrative, financial and social services must inform relevant investigator prosecutor’s office once there is an application or a request for such services from a suspect);
develop procedures in respect of investigating and prosecuting violations of international crimes under the principle of universal jurisdiction and cooperation with other states.

In respect of ensuring the accused’s right to a fair trial it is crucial for the state to ensure the implementation of relevant ECtHR judgements. This will mean that common violations of the ECHR in relation to such things as the length of proceedings, the length of pre-trial detention, and the right to defence counsel, etc. In respect of PoW who are subject to criminal prosecution with the view to exchange, develop procedure aligned with international standards‍

To develop victims and witness protection legislation and include victims – centered approach.

Defense lawyers

The bar self-government bodies should develop and deliver nationwide awareness-raising programs aimed at informing public understanding of the idea that defence counsel for allegedwar criminals do not identify with their clients, aimed at building [CE1] respect for the work of such lawyers. In addition, the bar self-government bodies, pre-trial investigation bodies and prosecutors should effectively respond to threats and harassment of defence lawyers for their professional activities, in particular in cases related to the armed conflict.

The EU accession process takes considerable time and investment. At this juncture it is also a recommendation that the creation of the “hybrid”/internationalised accountability mechanism is seen as part of that process of long-term engagement and partnership, which could also assist with post war reconstruction and funding. When amending Ukrainian legislation as part of this process, it is also necessary to take into account the special needs of the justice system related to the consideration of proceedings on the consequences of the armed conflict.

Based on past experiences, implementation of these recommendations will require significant time, resources, but most importantly a clear strategic vision of the decision makers.

It is imperative that donor and expert community, civil society, governmental intuitions and international organisations work in concert with one another, learn to build a high degree of trust, install effective quality control systems and ensure efficient coordination in streamlining all their efforts.

Considering that Ukraine is only one of many situations that require effective justice related solutions, there is a need to adapt the global justice and accountability architecture to make it fit to respond effectively and efficiently to the existing and future needs of the people.