10 years of war – 10 lessons and conclusions for justice

February 20, 2014 is the day that went down in history as the date of Russia’s occupation of Ukrainian Crimea. This was followed by the occupation of part of the territories in Eastern Ukraine, an attempt to create the so-called “Novorossiya”, numerous provocations, and, finally, a full-scale aggression on February 24, 2022. All of this resulted in numerous war crimes, which posed a challenge to the justice system. During this period, we have drawn many conclusions and implemented important changes. However, the main challenges are still ahead.

We need to understand that chasing figures for investigating crimes that were committed during the full-scale Russian aggression is not the way to justice. And in no way should we put aside the numerous crimes committed in Crimea and Eastern Ukraine since 2014. The victims have been waiting for justice for 10 years. And even the existing compensation mechanism currently takes into account only the losses that occurred after February 24, 2022. Thus, we have no right to forget that the war began in 2014. And every victim of this war must be protected, and every criminal must be punished.

Correct qualification of crimes

Back in 2014, for Ukraine, which had never faced international crimes in practice, the correct qualification of the relevant events was a real challenge. For quite a long time, most serious crimes were classified as “terrorism” or “financing of terrorism.” Whereas these should have been classified as war crimes, which are a consequence of the crime of aggression, and are international crimes with no statute of limitations. Incorrect qualification still backfires on us in some cases. In particular, this applies to the extradition of suspects. After all, incorrect qualification is a ground for refusing extradition. In addition, the incorrect classification of serious crimes was an obstacle to the obligation to investigate them outside the statute of limitations.

Imperfection of the legislative framework

In addition to the above-mentioned war crimes, international crimes include the crime of aggression, genocide and crimes against humanity. And it is the crimes against humanity that are not taken into account by our Criminal Code at all. Despite the fact that there are certainly signs of their commitment in Ukraine by the Russian army. Crimes against humanity are crimes committed as part of a large-scale and systematic attack on the civilian population, where such an attack is deliberate. Let us recall the terrible consequences of the occupation of Bucha.

Ratification of the Rome Statute

Ukraine is actively cooperating with the International Criminal Court, which has jurisdiction over crimes committed on our territory as a result of the armed conflict and is an independent body operating under the Rome Statute. And we already have the first arrest warrants for the deportation of Ukrainian children. However, we have not yet become a full-fledged member of the international criminal justice family, as we have not ratified the Rome Statute. And there are no objective reasons for this. After all, the ICC already has the right to investigate international crimes committed in Ukraine. At the same time, we are depriving ourselves of the right to participate in the court’s activities, elect its members, formulate an agenda, etc. And in order to be a trigger for the necessary changes, we need to at least be full participants in the process.

Effective documentation of international crimes

In 2014, we were certainly not prepared for aggression. And in fact, we did not understand in practice how to properly record international crimes. As a result, a large amount of important evidence was lost. Non-governmental organizations were the first to adapt to the new conditions, as they began to professionally document and are still helping to implement the relevant standards and government institutions. Currently, the military is also engaged in recording, as they are the first to enter the liberated territory in the conflict zones and, accordingly, face the consequences and evidence of crimes committed.

Investigating crimes without access to the territory

Back in 2014, we found ourselves in a situation where part of our territories were occupied, and it was there that alleged war crimes against our citizens were committed. Based on my own experience of working in the Crimean prosecutor’s office in 2016-2019, I can say that there are now quite effective tools for investigating crimes even without access to the territory. This is primarily digital evidence, because virtually every crime now has a digital trace: satellite images, phone calls, and correspondence. Let’s take a look at the investigation into the downing of MH17, where every such fact was collected bit by bit to bring charges. Currently, the collection of digital evidence still requires improvement of criminal procedure legislation. And the second key success factor here is the state’s cooperation with civil society: with investigative journalists and civil society organizations, which are often much more flexible and have greater opportunities to work with the occupied territories.

Training qualified personnel

Working with international crimes has its own specifics, which is very important to understand. Therefore, police officers, SSU workers, and prosecutors need appropriate training. Which, obviously, was not provided in 2014. Systematic work with international crimes began in the Crimean prosecutor’s office in 2016. And since then, a pleiad of professionals who understand this type of crime has grown up, which is great progress. But given the enormous scale of such crimes, especially after a full-scale invasion, they are still not enough.

Specialization

In addition to trained personnel, the enormous scale of crimes that Ukraine is facing requires the specialization of institutions. The creation at my initiative in 2019 of a new Department for Supervision of Criminal Proceedings for Crimes Committed in the Condition of Armed Conflict (popularly called the “War Department”) in the Prosecutor General’s Office was the beginning of such specialization. At the same time, such a practice of specialization should be introduced and institutionalized in all bodies involved in the investigation of international crimes.

Architecture of the justice mechanism

Ultimately, all of these steps are necessary to build an effective mechanism of justice for the consequences of Russia’s armed aggression. By effective, I mean a mechanism that would cover all four types of international crimes, be objective and legitimate, and be able to restore the rights of as many victims as possible. It is important to emphasize this, as the government is currently promoting the idea of establishing a tribunal for aggression, i.e., for one of the four types of international crimes. At the same time, ensuring effective justice for other types is also an important task for Ukraine and the world. In my opinion, the above criteria are met by a justice mechanism that will contain Ukrainian and international elements. For example, it may involve international experts at the level of investigation and procedural guidance. In fact, this should be a system of interconnected elements that does not replace the ICC, but naturally complements its work to cope with the unprecedented scale of the crimes committed.

Understanding the role of international humanitarian law

International humanitarian law is, in fact, the law of armed conflict, which, like peacetime, has certain rules. Against the backdrop of numerous violations of the laws and customs of war by the Russian army, the Ukrainian army is actively implementing IHL. After all, we are building a modern army in accordance with NATO standards. In addition, it is a matter of fulfilling our commitments. The implementation process is still ongoing, and it is extremely important to continue on this path.

Mechanisms of prevention

We have to be realistic and admit that the international legal system was not ready for a war in the middle of Europe on this scale. The security instruments developed after World War II are outdated and need to be updated. The United Nations, which is supposed to ensure peace, has been effectively blocked by the aggressor state through the Security Council, and the world has no real mechanisms to resolve this collision. And Ukraine, in fact, from February 19, 2014 (because on that day certain oil and gas production facilities within the continental shelf of Ukraine were occupied by the Russian Federation) until February 24, 2022, had to prove that we were dealing with Russian aggression and various forms of occupation of our territories. And there is a high probability that the war in Ukraine will have an impact on the system’s renewal. After all, modern threats have a different form, they are mostly hybrid; other means of warfare, for example, the same drones; other actors, for example, “private military companies”. And international crimes themselves need to be redefined: from genocide to ecocide. After all, we will be able to talk about real prevention of evil in the world only when the international legal system adequately and timely responds to current challenges to law and security. And an important step towards this is the actual punishment of those responsible for committing international crimes in Ukraine since 2014.

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