Nearly seven years after the start of hostilities in eastern Ukraine, the Ukrainian government is yet to pass legislation necessary to investigate war crimes.
Thousands of people have been killed, wounded and displaced by the conflict, which began in 2014 - and war crimes have been a significant component of both international peace talks and post-conflict reconciliation.
But in Ukraine itself, there have only been two successful prosecutions for war crimes, says Oleksandra Matviychuk, a Ukrainian human rights activist and head of the Center for Civil Liberties. She says that many offences that should be prosecuted as war crimes have been investigated as general criminal offences.
In response to gaps in Ukraine’s existing legislation - and the need for justice for people who have suffered physical and sexual violence - Matviychuk, together with Ukrainian human rights defenders, has developed draft legislation to secure investigation and prosecution of war crimes. In September this year, Ukrainian parliament voted for the draft law in the first reading. But human rights activists fear that a second vote may not take place.
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openDemocracy talked to Oleksandra Matviychuk about the need to establish responsibility for war crimes in eastern Ukraine - and the obstacles preventing it.
Which offences can be called war crimes?
The legal definition of war crimes is enshrined in Article 8 of the Rome Statute of the International Criminal Court. In simple terms, this is a type of international crime, the context of which is armed conflict, international or non-international. These crimes take various forms. For example, torture of prisoners of war, the use of civilians as human shields, the use of weapons of mass destruction. These are not any crimes that are committed during the war, but the most serious ones.
Are these kind of crimes committed in eastern Ukraine?
In 2014, the Center for Civil Liberties became the first human rights organisation to send its monitoring groups to Crimea and Donbas. At that time - the end of February 2014 - we did not even suspect that a war had begun, but we had already begun to document human rights violations and war crimes. Most of them were associated with kidnapping, torture and extrajudicial executions. I personally spoke with more than a hundred people who came out of captivity. They told how they were beaten, raped, some had their limbs cut off, and one woman had her eye taken out with a spoon. The war continues, and there are more and more of these stories.
Then we started looking for an opportunity to somehow stop this impunity. We divided the documented crimes into two groups: crimes that the Ukrainian state institutions cannot influence, and those that are their direct responsibility.
How are these crimes qualified and investigated in Ukraine?
We have Article 438 of the Criminal Code of Ukraine (“Violation of the laws and customs of war”), which establishes responsibility for war crimes. But it is absolutely unsuitable. It does not clearly define what war crimes are, it refers to international law. That is, you need to know about 30 international treaties and be able to use them.
In Ukraine, as a country of the former Soviet Union, which has renewed its independence and is trying to build a developed democracy, the level of legal consciousness remains instructive. That is, if something is not spelled out in the Criminal Code, no one will look for an international convention and try to apply it. After analysing court cases over the past six years, we found that until recently only two sentences had been passed for war crimes.
Article 438 should have been amended and brought into line with international criminal law back in 2014. Okay, they didn’t do that in the first year of the war. But six years of the war have already passed, and the statute remains unusable. Nothing justifies Ukraine for not finding the time and desire to change this. This is how we realised that de facto there is no responsibility for war crimes, and we developed our own draft law.
How can your bill fix this situation?
There are a huge number of war crimes that are misclassified. We conducted a study and found that all these crimes were investigated as common crimes: either as ordinary murders, abductions and torture (in the early years of the war), or as participation in an illegal armed group and terrorism.
Why shouldn’t war crimes be classified as common crimes? First, it does not reflect the nature of the crime. For example, we see a report in the medi about the detention of a member of an illegal armed group who forced women to have sex at checkpoints. How is this crime qualified? This is not called a war crime in the form sexual assault - it is investigated as “membership of an illegal armed group”. But this man not only participated in an illegal armed formation, he raped women at checkpoints.
Secondly, international crimes have a much higher level of punishment. Thirdly, common crimes have a statute of limitations. When these time limits have passed, the case must either go to court or be closed. All crimes that are now open as common crimes and which investigators, for various reasons - a part of the country is occupied - cannot investigate, will be closed, because the statute of limitations will pass. It is different with international crimes: years pass, the political situation changes, and people are brought to justice.
In addition, there is an imperative in international law that there is no amnesty for war crimes. This is a very important issue because amnesty is an integral part of any plan for national reconciliation after an armed conflict. This is part of many peace agreements. And, naturally, it should be in the event of the Russian-Ukrainian war. But people who commit war crimes cannot be amnestied. Therefore, returning to the example of a member of an illegal armed group who raped women at checkpoints, but was punished under a general criminal article, he could easily be released as part of a general amnesty. Ukraine has not yet put its Criminal Code in order, but still launched a system of “quiet amnesty” [for war crimes]. All the deadlines will pass - and these cases will simply be closed, and in fact these people will be amnestied. Our bill is meant to solve these problems.
Can the amnesty issue prevent war crimes from being properly investigated?
Yes. Russia has been actively twisting Ukraine’s arm at the Minsk talks for years, demanding total amnesty. This is enshrined in Paragraph 5 of the Minsk agreements: “Ensure pardon and amnesty by enacting a law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of Donetsk and Luhansk regions of Ukraine.” What is this phrase? It says nothing at all.
The Minsk agreements do not negate the Geneva Conventions, the Hague Convention, and international humanitarian law. But theoretically it is possible to imagine a situation when the Ukrainian leadership, which is negotiating with Russia, will say: “Now there is no need to accept anything, there is no need to anger Russia.”
Who worked on this draft law and for how long?
We tried to figure out how to stop the practice of mass abduction and torture of people in the occupied territories. One of the problems we saw is complete confidence in impunity. People who commit these crimes are confident that nothing will happen to them, that even if the situation changes, they will be amnestied or, in extreme cases, exchanged. The understanding of impunity is based on the fact that these crimes are investigated as ordinary crimes, not international ones.
Therefore, we set ourselves the goal of developing a bill that would harmonise Ukraine’s criminal code with international criminal and humanitarian law and thereby send a signal to the occupied territories that it will not be possible to hide behind Putin, that everyone will be responsible for what they have done. For us, this is not only a question of justice for the past, but also for current and future actions. We hope this works as a cooling effect and keeps people alive.
"Justice may be postponed in time, but it exists. And if it is not given within the law, then we can assume that this will open the way to other, illegal forms of restoration of justice"
Five years ago, we got fired up with this idea and created a working group, which included the best international lawyers in Ukraine, practicing lawyers, scientists and representatives of international organisations. We have developed a high-quality draft law, it went through a lot of discussions, including at the international level. After that, we began a long struggle to make it law.
The first time we decided to register it was under the old government, under Petro Poroshenko. For a whole year we tried to convince the government that this bill is important and necessary. We did everything possible: we went out to rallies together with victims of war crimes, met with ministers. We ran a whole advocacy campaign, and in the end, the government registered this bill.
On voting day, with the help of friendly MPs, we invited people released from captivity to the lobby of the Verkhovna Rada. They met the deputies who went to the meeting, told them their stories, asked them to vote for the bill. And they voted for it in the first reading. But then what was expected happened: after the president and parliament changed, we had to start this work from the beginning, we had to register the bill again. After another advocacy campaign in September, it was adopted in the first reading. But we have no guarantee that it will be adopted soon.
What do the people who are resisting this bill fear?
I must honestly say that the bill is very complicated. Actually, we have very few international lawyers in Ukraine.
When we explained to the MPs, referring to the decisions of the European Court, that this law can be used to assess crimes that took place during 2014-2016, they replied that we prohibited the retroactive effect of the law in time. And we have to explain that no, this is not retroactive application, but the application of international law to the events of the past.
Moreover, even before the start of the war, Ukraine had a number of international obligations. We signed the Geneva Conventions, the Convention on the Prevention and Punishment of the Crime of Genocide. The fact that we did not specify these crimes in our criminal legislation is our flaw. But we had obligations. For me, the problem is not this ignorance, but indifference. I could say that someone is blocking this bill, but no, it is simply not being moved.
What problems could this law present in practice?
If the bill is passed, it will be difficult to use. Our legislation is not prepared, so one can imagine how low the potential of our law enforcement agencies and the judicial system is. If the bill had been passed quickly, as we expected and how it should have been, then we would have had more time, together with international partners, to train Ukrainian investigators on how to properly qualify and investigate international crimes. In the same way, whole programs of training judges on how to deal with war crimes cases would have been carried out - they do not have the right experience. That is, you need to learn how to use this law in practice. And we should have done this, instead of spending so much time on the first step - passing the law.
On the positive side, last year a separate department was created in the Office of the General Prosecutor, which functions as a focal point for the investigation of international crimes. And they are just now trying to save all these criminal proceedings, which were incorrectly qualified, and re-qualify them under the currently unusable article of the Criminal Code. They are trying to build a system so that the Luhansk and Donetsk regional prosecutor's offices have divisions with people who know what international crimes are. But this is only the first step.
Can the adoption of this law be called a component of transitional justice, which is now being talked about in Ukraine as a necessary step to get out of the war?
Yes. Transitional justice contains several elements. It is a question of the truth about the conflict, whatever it may be. Speak openly and honestly about violations by all parties to the conflict. It is a matter of reforming and creating a law enforcement and judicial system so that people do not resort to violence, but use the mechanisms of law.
Transitional justice is about asking people for justice. I spoke with several hundred people who have come out of captivity.
"We have long supported and demanded that the state ratify the Rome Statute. But when it is ratified, this will not mean that the investigation and the courts can relax. They also have to do their job"
Justice may be postponed in time, but it exists. And if it is not given to them within the law, then we can assume that this will open the way to other, illegal forms of restoration of justice.
It is clear that the amnesty should be part of the peace agreements and the national reconciliation plan. And here there will be a lot of difficult and painful issues, which, unfortunately, are not being discussed in Ukrainian society now. They speak only with the slogans “Crimea is Ukraine”, “Donbass is Ukraine”. These are the right slogans, but you need to look for answers to difficult questions. How will we live after reintegration, whenever it happens, together, in one state?
But the fact that war criminals should be punished is one of the tenets of international law.
In the early years of the war, we discovered that the people who coordinated the war crimes were not just ordinary soldiers. We contacted colleagues from other countries and found out that the same people worked in Transnistria, and in Chechnya, and in Abkhazia, and in Ossetia. And I am more than sure that if we contacted the Syrian human rights defenders and checked our lists, we would find that these people were in Syria as well. That is, Russia uses the conflict as a method to achieve geopolitical interests at different points, and it has people trained in how to quickly establish control over the territory. War crimes are just a method of quickly establishing control over a territory. The active minority understands that either they will be killed now or they will leave. And the passive majority understands that it is better not to resist.If these criminals are not punished, the question will arise, to what next point they will go to practice their skills.
What is the significance of the fact that Ukraine has not yet ratified the Rome Statute?
The fact that Ukraine has not ratified the Rome Statute means that we have not become full members of the International Criminal Court. Despite this, Ukraine has submitted two one-off declarations to the International Criminal Court. The court opened a hearing on the Ukrainian case, and now we are at the stage of preliminary investigation. This year, if it hadn't been for the pandemic, the prosecutor's office would have already announced whether we are moving to the main investigation stage.
The fact that Ukraine did not become a member of the International Criminal Court hurts Ukraine. Because we have the same responsibilities as the country that has submitted the declaration, but we have no rights. We cannot submit documents in the national language, we cannot vote at meetings of the annual assembly when the budget is approved.
But this in no way relieves the responsibility of investigating war crimes from the national investigating authorities and courts. The International Criminal Court, by virtue of its policy, focuses on people who gave orders - on state leaders, on the commanders of armed formations, who may not have committed crimes with their own hands, but made decisions that made them possible. Therefore, those at the lower and mid-levels of command remain the responsibility of the Ukrainian state.
We have long supported and demanded that the state ratify the Rome Statute. But when it is ratified, this will not mean that the investigation and the courts can relax. They also have to do their job.
What, in your opinion, is the reason why Ukraine has not ratified the Rome Statute?
The reason is complex. Since 2014, we have been campaigning for the Rome Statute to be ratified. And one of the results of our company was sending one-time declarations to the International Criminal Court. Then, in 2016, we achieved amendments to the Constitution of Ukraine, because at first the obstacle to ratification was exclusively legal. In 2001, the Constitutional Court ruled that it is impossible to ratify the Rome Statute until changes are made to Article 124 of the Constitution of Ukraine. And in 2016, when the first wave of judicial reform was taking place and amendments were made to the Constitution, it was not without a fight that we made an amendment to Article 124 stating that Ukraine could ratify the Rome Statute of the International Criminal Court. It was an intermediate victory, because, apart from this change, there were transitional provisions. And it was written there that this particular amendment would take effect only after three years.
Why was this done? I talked a lot with the deputies and the Office of the President, which oversaw this reform, and came to the conclusion that banal illiteracy and myths around the International Criminal Court played a role here. Our opponents said that Russia would use this for its own purposes, that it would send thousands of fabricated cases there, and Ukraine would simply fight back. But this does not stand up to criticism. Because the International Criminal Court has already begun an investigation, if Russia wants, it can already send anything there. In addition, at the stage of the main investigation, the court itself conducts an investigation, it does not trust anyone’s side, but opens field offices in the country with its investigators. The Ukrainian authorities were also afraid that the International Criminal Court, with the help of Russia, would begin to prosecute the Ukrainian military - and we have heard that,since the war is not an open conflict, but a hybrid one, the soldiers will be judged only for the fact that they defended their country with arms in hand.
We explained that it was in the interests of the Ukrainian state to check all possible facts of violations by the Ukrainian army. And if they did take place, then bring the perpetrators to justice. Because we are different from the illegal armed groups, which Russia used to seize part of Ukrainian territory and establish its control there.
If Ukraine does this, the International Criminal Court has no right to interfere. It’s like a Damoclean sword - the court hangs over the country, saying: “Do your duty.”
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