Ukraine’s Legislative Challenge
International standards, principles and provisions need to be incorporated - and fast - for effective war crimes prosecutions.
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Tuesday, 11 October ‘22
This week’s overview of key events and links to essential reading.
Russia’s invasion of Ukraine has highlighted the weaknesses of both international and national justice systems. For Ukraine, deficiencies in its legislation and administrative procedures may put the ability to hold perpetrators accountable at risk.
Currently, Ukrainian legislation includes provisions on the classification and investigation of grave crimes, but has not incorporated all international standards, principles and specific provisions required for their prosecution.
In 2000, Ukraine signed the Rome Statute, the international treaty that established the International Criminal Court (ICC) and four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. However, it is yet to ratify this treaty.
In 2014, Ukraine accepted ICC jurisdiction over alleged war crimes in the wake of the annexation of Crimea and the armed conflict in eastern Ukraine. In the preliminary investigation, which lasted from 2014 to 2020, then-ICC prosecutor Fatou Bensouda, classified the situation in Crimea as an international armed conflict. As for the Donbas, she stated it was a combination of an armed conflict between Russian and Ukrainian forces, as well as a conflict of non-international nature between government troops and armed groups from so-called Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR).
Following the full-scale Russian invasion of February 24, 2022 and an appeal from 43 member states, the ICC’s prosecutor’s office launched a whole-covered investigation into the situation in Ukraine. The court operates on the principle of complementarity, according to which international jurisdiction does not replace the national system, even in relation to grave crimes, but complements it in the event the state is unwilling or unable to ensure an effective investigation. In May 2022, the ICC deployed a team of 42 investigators, forensic experts and support personnel in its largest ever field deployment.
The state is first and foremost responsible for prosecuting the most serious crimes committed on its territory or against its citizens; the ICC’s key task is to complement national law and judicial systems. The court’s limited resources and focus means that Ukraine should take the lead in justice processes.
The Verkhovna Rada, the Ukrainian Parliament, has adopted a law enshrining cooperation with the ICC in its criminal procedure code.
But the law has a number of shortcomings.
Firstly, its provisions are intended to regulate cooperation as per the Rome Statute’s Chapter 9, between ICC member states. Ukraine, however, is not a state party. This means that the law’s obligations are not implementable for Ukraine until it ratifies the Rome Statute.
Secondly, the law contradicts the principle of ICC independence and impartiality due to the lack of a procedure for an independent investigation by its prosecutor’s office. The bill prescribes the general policy for conduct of the criminal proceedings in Ukraine and resembles more a procedure for providing international legal assistance than a bilateral cooperation between Ukraine and ICC.
Thirdly, the law is based on Ukraine’s national investigation standards, which differ from the ICC’s. Differences range from the terminology and rules to preserve the evidence to witness protection measures and the guarantees for a fair trial.
Fourthly, it obliges Ukraine to cooperate with the ICC only in cases pertaining to the violations by Russian Federation or other states and entities against its territory or citizens, thereby encroaching on the principle of impartiality
Lastly, the most strategic issue is that the law does not regulate the status of the office of the prosecutor of the ICC in the context of its work on the territory of Ukraine. This complicates cooperation, in particular in light of the required permission from the prosecutor general’s office for conducting investigations in Ukraine.
On September 20, the Ukrainian parliament voted for a draft law allowing investigators and experts from the ICC to conduct procedural investigative actions in Ukraine “upon agreement with the prosecutor general of Ukraine.” Prior to the vote, only the ICC’s prosecutor could take procedural actions.
NATIONAL LEGISLATION
The Criminal Code of Ukraine establishes responsibility for war crimes, which presumes the application of norms of international law. Until the invasion, the number of such investigations had been low, largely due to a lack of understanding of international humanitarian and criminal international law by enforcement bodies. War crimes were often classified as ordinary criminal offences.
Since February 24, the number of investigations has rapidly increased, but the lack of understanding and limited experience have not changed. As a result, law enforcement officers and judges continue to automatically apply national principles of investigation of ordinary criminal offences.
The Criminal Procedure Code of Ukraine (CPCU) does not provide special provisions regarding the investigation of the most serious crimes. For example, the period of pre-trial investigation of war crimes is 18 months with the possibility of an extension for another 12 months. But the ongoing war and the partial inaccessibility of the temporarily occupied territories, as well as access to witnesses and evidence, makes this provision irrational and arguably a violation of customary international law.
Ukraine has also adopted new procedural investigative rules which pose further challenges.
In terms of evidence-gathering, national authorities are increasingly using open sources although the procedure to verify such evidence is not yet established. It requires amendments to the criminal procedural code as to admissible evidence, training and technical support to make such potential evidence useful.
In addition, an effective witness protection programme needs to be developed. The current legislation partially regulates it, but it is insufficient to provide protection to those who decide to testify.
In 2014, Ukraine adopted a new legislation for trials in absentia, which again requires further amendments in terms of guarantees of the right to a fair trial. Currently, there are no provisions establishing the special appeal procedure, which is a violation of the European convention on the protection of human rights and fundamental freedoms. These create the potential risk that such sentences may be challenged based on violations of international standards or lack of adequate guarantees of the rights of the accused.
Thus further amendments are necessary to provide prosecutors and judges with a clear procedure for investigating grave crimes in line with international standards of due process.
The best framework would be the establishment of a so-called internationalised or hybrid mechanism whereby domestic investigators, prosecutors and judges work alongside international counterparts. This was the case for the Special Tribunal for Sierra Leone and the International Criminal Tribunal for the former Yugoslavia. This allows a systematic and continuous exchange of experience, and facilitates capacity building for domestic authorities. It would have special jurisdiction, mandate and rules of procedure to prosecute grave crimes and would have enough of an international element to overcome immunities, and could later be integrated into the domestic system.
Nadia Volkova, an expert in international humanitarian and criminal law, is a member of the Ukrainian Legal Advisory Group NGO.
