It has been 10 years since the start of the armed conflict in the territory of Ukraine. It started with the annexation and occupation of the Crimean Peninsula in February 2014 followed by the breakout of the armed hostilities in eastern Ukraine (“Donbas”, “Donbas region”). Although collectively it was always referred to as “armed conflict”, de facto, they were two different situations: while Crimea was a direct engagement between Russia and Ukraine, eastern Ukraine had an additional element of proxy engagement from Donetsk and Luhansk regions. Proxies largely consisted of the pro-Russian population of Ukraine who supported the idea of Russia’s control over Ukraine via establishing a pro-Russian government over the entire territory of Ukraine and acted with financial and ideological support of the Russian authorities. While the Crimea situation was straightforward in terms of the legal classification of the armed conflict and definitions and as much was confirmed by several UNGA resolutions, the situation with eastern Ukraine was not as obvious and as clear cut.[1] In addition the ECtHR’s decision on admissibility of Ukraine’s interstate application against Russia on Crimea confirmed that Russian exercised “effective control over the area”[2]. At the time the International Criminal Court had opened a preliminary examination into the situation and defined the ongoing armed conflict in eastern Ukraine as international armed conflict in parallel to the non-international armed conflict.[3] Furthermore, the European Court of Human Rights assessing the events in Donbas in the inter-State case of Ukraine and the Netherlands against the Russian Federation, stated in relation to the admissibility of application that approximately after 11 May 2014 (after the so-called "referendum"), the self-proclaimed “DPR” and “LPR” formations reached sufficient level of organisation to assert that the Russian Federation exercised control over them[4].
Consequently, there were allegations of grave international crimes in both situations throughout the years. Ukrainian authorities were attempting to investigate and prosecute them, however, these endeavours did not yield any meaningful results. While domestic system struggled due to lack of specialisation at the investigative, prosecutorial and judicial level, specialist knowledge, experience, expertise, resources, competences, suitable legal framework (the existing one has used contradictory approaches to the legal regime under which the ongoing conflict situation was interpreted by the relevant authorities), the regional and international mechanisms were also ineffective in their response: the ECtHR, was overwhelmed and buried under the sheer number of applications alleging the violations of the European Convention on Human Rights in the course of armed conflict; following a 5 year long PE, the ICC Prosecutor Bensuda decided to put on hold any decision as to the opening of the investigation into Ukraine until further notice due to lack of the resources at the end of 2020[5]; the UN Human Rights Committee had limited capacity to process the applications.
This was the state of the domestic and international justice system at the time when Russia launched a full-scale invasion. And although this time around, the response from the international community was unprecedented in launching various justice and accountability related initiatives to complement the efforts of Ukraine’s domestic authorities, the question of their effectiveness and fitness for purpose remains as relevant as ever.
Ukrainian Legal Advisory Group (ULAG) has been monitoring, analysing and evaluating justice and accountability landscape and response to Russia’s aggression against Ukraine since 2014 through:
- Representing victims of grave crimes (illegal detention, torture/ill treatment, conflict-related sexual violence, extrajudicial executions, etc) at all levels: domestic, regional and international;
- Engaging with domestic authorities through trainings and consultations;
- Engaging with international organisations and authorities;
- Consistently monitoring, analysing, drafting relevant domestic legislation;
- Engaging with legal advisors and officials of the supporting states;
- Drawing lessons learned from other situations of armed conflict and studying approaches to justice and accountability in other context situations of armed conflicts.
In addition, ULAG consistently engages with the legal system representatives whose practical experience and knowledge was used to draw conclusions and to assess the ongoing situation in real time.
Therefore, findings in the report are based on primary and secondary sources:
- the results of the polls undertaken by ULAG in partnership with other Ukrainian organisations;
- focus groups with veterans and judges;
- informal and confidential interviews with investigators and prosecutors;
- analysis of current legislation and draft regulations;
- gaps in standards application identified through victims representation work;
- analysis of public statements, speeches and positions of representatives of the authorities,
- official statistics from public authorities;
- analysis of publicly available documents of specific institutions;
- analysis of strategies, plans and priorities of the law enforcement institutions.
This report was produced on the recommendation of experts who have extensive experience in developing the capacity of justice systems throughout the world and building effective accountability mechanisms to ensure justice and accountability for atrocity crimes in other armed conflicts.
It is expected that this report will become a useful tool for the policy makers in their decision-making process aimed at developing justice architecture capable of delivering effective and meaningful justice to the victims of the atrocity crimes in Ukraine. Another expectation is that such an approach, if effective, would be used to tackle impunity and ensure justice for the victims of all armed conflicts.
In our view, a ‘Needs Assessment’ is a vital exercise for future accountability in Ukraine which would ascertain the complex challenges which exist in the Ukrainian criminal justice system, as they relate to an ability to investigate and prosecute an overwhelming number of 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, must be based upon a comprehensive mapping and needs assessment of Ukraine’s capacity to investigate and prosecute crimes, 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 could be proposed (almost certainly a ‘hybrid-model’). It is also expected that international actors would be influenced in their positions, if they are presented with strong research and an assessment of Ukraine’s legal capacity and justice architecture.
