Ten years of armed conflict in Ukraine has left many of the victims and survivors of international crimes in a state of disappointment on the one hand and hope on the other. Disappointment among the population of Ukraine is due to lack of meaningful progress in achieving justice and perpetuating impunity of the perpetrators. First it had led to the occupation of Crimea, then to the armed hostilities in eastern Ukraine and finally to the full-scale invasion of the entire country all the while accompanied by tens of thousands international crimes. However, even after 10 years of lack of meaningful justice and accountability for flagrant violations of the international law, the victims are looking to the international community to ensure that those who caused them grave suffering and irreparable damage will be held responsible for their actions.
The occupation and the subsequent full-scale invasion of Ukraine by Russia has put to test the effectiveness and efficiency existing architecture of justice that the world can offer. In 10 years of the ongoing armed conflict in the territory of Ukraine and 2 years of the invasion have revealed, that even the most robust justice related response consisting of engagement of the existing accountability options and complementing them with specifically created and tailored mechanisms has not proven to be effective.
Domestic justice system is expected to carry the greatest burden by investigating and prosecuting most of the alleged crimes under international law. However, it has been faced with insurmountable challenges since 2014, such as: lack of suitable legislation, both substantive and procedural; low levels of capacity among investigators, prosecutors and judges to ensure meaningful impartial and fair investigations, prosecution and adjudication of grave international crimes; lack of effective infrastructure, in particular specialisation among the courts vis-à-vis allocation of cases of the alleged war crimes; low capacity of defence lawyers, their persecution and stigmatisation for defending “the enemy”; lack of effective infrastructure to ensure psychosocial support of the victims and witnesses and protection legislation and programs in place; lack of material and technical support of the authorities and courts; low capacity of the local penitentiary system to hold perpetrators of grave international crimes.
In the meantime, the international and regional justice mechanisms that have been engaged also lack capacity to complement the work of the domestic justice system and to bridge the existing gaps. The International Criminal Court, although has been steadfast in delivering arrest warrants for the Russian political leadership and two military commanders, remains limited in its capacity and resources to ensure justice for Ukrainian people; States, which opened investigations under the principle of universal jurisdiction have been primarily focused on collecting information from Ukrainian refugees as part of their structural investigations and only opening the individual investigation where the alleged perpetrator or a victim had a nationality link to that state. Joint Investigative Team has been operational for over two years now, but its mandate, capacity and its role in the global justice and accountability eco system remains unclear. Finally, the role and capacity of the International Centre for Prosecution of the Crime of Aggression established as part of the future special tribunal remains ambiguous: although it has been tasked with documenting and investigating the crime of aggression, it remains unclear according to what definition and to what standards it should be investigated. Although Ukrainian Criminal Code contains a definition of the crime of aggression, in its essence it contradicts the definition contained in the Rome Statute as well as in the UNGA Resolution 1334.
While there is a strong interest to prosecute the crime of aggression, the political will to put in place a suitable mechanism or amend the Rome Statute accordingly to empower the ICC to do so appears to be divided.
The report demonstrates that there is an urgent need not to focus solely on the crime of aggression, but in order to deliver meaningful justice to the people of Ukraine, victims and survivors, it is crucial to develop a comprehensive justice and accountability architecture that will be capable of responding to the current needs and demands for justice effectively and efficiently.
To that end it is recommended to the both international community and Ukraine to consider developing a three-tier accountability system:
Tier 1:
The International Criminal Court (likely focusing on senior civilian and military leaders, those ‘most responsible’ and particularly ‘challenging’ cases).
Tier 2:
A “hybrid”/internationalised mechanism with jurisdiction to investigate and prosecute 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.
Tier 3:
Specialised domestic mechanism consisting of specialised investigative authority, specialised prosecutor’s office and specialised court or chambers at the Appeals and Supreme courts level (focus on crimes against national security committed in armed conflict and the responsibility of direct perpetrators of core crimes who are Ukrainian citizens, including members of irregular armed groups).
Regardless of when and whether the proposed justice 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:
1. Full implementation of the Rome Statute by Ukraine.
2. 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.
3. 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 of 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.
4. 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.
5. To develop victims and witness protection legislation and include victims – centered approach.
6. 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.
7. 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 alleged war 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.
Russia’s war of aggression against Ukraine should be a catalyst for the world community to start creating a global justice system that will be capable of responding to the existing and future needs of those who have suffered the greatest harm caused by wars.
