International justice on hold

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It remains to be seen whether Ruslan Riaboshapka, the new prosecutor general of Ukraine, will pursue a decisively different course of action supported by a recently-decreed legal reform commission. Nevertheless, domestic developments cannot overlook what takes place at the international level. In truth, international justice has little to show after five years. Both the International Criminal Court (ICC) and the European Court of Human Rights (ECHR) have expressed an interest in Ukraine, and are at various stages of examination and legal adjudication. The high expectations that come with their involvement, however, have yet to materialise.

From the beginning, the prospect of international justice playing a constructive role in dealing with the aftermath of the EuroMaidan, as well as the events in Crimea and Donbas, meant a silver lining for Ukrainian citizens and civil society organisations with little faith in the domestic judicial system. There was hope that international bodies would be better equipped to deal with cases that went beyond Ukraine’s capacity to identify and charge individuals responsible for attacks against civilians at the Maidan or separatist aggressions by Russian-backed forces in eastern Ukraine.

A promising start

It took Ukraine only a couple of days after President Viktor Yanukovych was removed from office and fled the country to start the path of international criminal justice. The first declaration to the ICC was signed on February 25th 2014. It offered the court jurisdiction with reference to the events that occurred at the Maidan between late November 2013 and February 2014. A second declaration, filed on September 8th 2015, enlarged the scope to conflict that was occurring in eastern Ukraine and the occupied territory of Crimea. No time limit was specified in the second declaration, which means that the ICC is authorised to investigate present and future events. Soon after the two declarations, the ICC’s Office of the Prosecutor (OTP) chose to open a preliminary examination into the case. As such, the OTP takes a closer look at the situation in Ukraine, gathers evidence and examines the court’s jurisdiction, as well as the admissibility of probable international crimes before it presents a final assessment. Based on this, the prosecutor of the ICC, currently Gambian lawyer Fatou Bensouda, makes a recommendation that is subject to approval by a Pre-Trial Chamber (PTC).

The ECHR works in a somewhat different fashion. Rather than focusing on individual perpetrators of international crimes, it is primarily concerned with human rights abuses committed by state parties. The court does not take up cases of its own but receives individual or inter-state applications. Ukraine signed and ratified the European Convention in the 1990s which still provides fundamental political and civil rights to its citizens. A great number of cases related to human rights abuses in Ukraine were brought before the ECHR over the last several years. The majority were individual cases concerning the severe use of violence, unlawful imprisonment, torture and damage to property. Ukrainian lawyers and civil society organisations have been providing legal assistance to applicants. Meanwhile, there are a more limited number of inter-state cases concerning Russia and Ukraine that were taken to the court. While much of this sounds promising in terms of international justice for Ukraine, the present situation is marked by a sense of ambivalence.

Case(s) thrown out

The ECHR has processed over 4,000 individual cases lodged against Russia and Ukraine, yet many of these have been declared inadmissible for lack of evidence. For instance, in a July 2016 ruling regarding a number of houses that were severely damaged or destroyed by shelling, the court noted that the applicants “have failed to submit any relevant documents supporting their Convention claims.” While the ECHR took the exceptional circumstances of the conflict in eastern Ukraine into account, it noted that no attempt was made to obtain “at least fragmentary documentary evidence to substantiate their allegations.” Since then, many cases lodged before the ECHR have met a similar fate, partly due to a lack of documentary evidence regarding the ownership of property or the context of the violation.

Many examples reveal a severe inadequacy in the preparation of cases by the applicants’ legal representation. Last year, the court even took an unprecedented step of prohibiting one Ukrainian lawyer from representing or otherwise assisting applicants in both pending and future applications. The ECHR discovered that the lawyer in question had forged documents and also lodged applications on behalf of deceased Ukrainians without notifying the court of their deaths. Although such cases are exceptional, malpractice effectively has barred a large group of Ukrainian citizens from international adjudication by way of the ECHR. In 2016 alone, more than a thousand unsubstantiated cases were rejected, leaving alleged victims with no immediate recourse.

Individual applications that are still pending before the ECHR, neither declared inadmissible nor rejected at the outset, will be dealt with once the court has ruled on the inter-state cases. These concern the events on the Kerch Strait last November, the detention and prosecution of Ukrainian nationals, the abduction of children and, more generally, human rights abuses.

In September of 2019, the ECHR held a public hearing regarding Russia’s alleged human rights violations in Crimea. As the hearing showed, this and other inter-state cases hinge upon Ukraine’s argument that Russia should be treated as an occupying power – or as a complicit actor through its support for the separatists in Donbas – and therefore should be held accountable for human rights violations. If the ECHR sides with Ukraine, in the case of Crimea, it would mean a strong legal condemnation from the international community. Yet in previous years the Russian Federation has taken steps to limit, or even resist, the implementation of ECHR and other human rights related judgements. Unlike minor cases when there is no significant media exposure, it is likely that Russian authorities would accept the court’s decision and ensure its implementation.

Interests of justice

With the ECHR in the process of examining the inter-state cases, the ICC appears to be in the back seat. Nevertheless, the last couple of years have seen some important developments from the prosecutor’s office. The most recent report on preliminary examination activities regarding Ukraine shows that the ICC’s Bensouda has worked on the subject matter jurisdiction for alleged crimes and is considering whether to classify the conflict in eastern Ukraine as a non-international armed conflict, between Ukraine and the separatists in Donbas, or an international armed conflict between Ukraine and Russia, or possibly both. Among others, the OTP focuses on attacks against civilian population, enforced disappearance and killings, deprivation of liberty and torture, forced conscription, seizure of property, hostilities that amount to war crimes and gender-based crimes.

Bensouda has increasingly sought to distinguish between the Maidan events, eastern Ukraine fighting and the occupied territory of Crimea. In 2016 she concluded there was not enough evidence of a widespread or a systemic attack directed against the civilian population at Maidan that would constitute a crime against humanity. This conclusion, however, is still subject to change in light of new evidence. So far, there are a few hints from the prosecutor to the appropriateness of an investigation. The preliminary examination is not yet finalised and a number of major hurdles still remain.

Much of the work is complicated by the fact that Ukraine has signed but has never ratified the Rome Statute that is responsible for the functioning of the ICC and the implementation of international criminal law in a domestic setting. The ICC was established with the purpose of ending impunity (only) in situations when states are unable or unwilling to persecute sufficiently grave crimes. This is referred to as the principle of complementarity and permits state parties to refer cases to the ICC for investigation. Whereas the two declarations signed in 2014 and 2015 give the ICC jurisdiction over Ukraine, the fact that the country is not a state party to the Rome Statute comes with certain drawbacks. In particular, Ukraine relies on Bensouda’s initiative for a preliminary examination on the number of admissible cases and her overall assessment of the situation. Moreover, even a positive OTP assessment can still be halted by judges who are part of the Pre-Trial Chamber. One example shows the risks associated with this process.

Earlier this year, there was a lot of anger and disbelief after the PTC decided that an investigation into the conflict in Afghanistan would not serve “the interests of justice.” Although the chamber found there was a reasonable basis to consider that crimes within ICC jurisdiction have been committed in Afghanistan and would be admissible before the court, the judges believed the current circumstances could not deliver a successful investigation and prosecution. Much of this assessment relied on non-legal factors, namely, the amount of time that has elapsed since the events and the lack of co-operation between the involved parties with the OTP (most notably, the Taliban and the United States). Just before the PTC ruling, the United States had exerted considerable pressure on the court with hostile official statements and the withholding of a visa for Bensouda. It is easy to see in the Ukrainian context how other countries could respond with similar tactics and hope to sway the opinion of the PTC.

Ratifying Rome

The Afghanistan decision sets a precedent which has immediate implications for Ukraine. Future co-operation from the Russian Federation or the self-proclaimed “Donetsk People’s Republic” and “Luhansk People’s Republic” is unlikely. Involved parties will likely refuse access to relevant documents, witnesses and the locations where alleged crimes were committed. Such non-legal considerations may be taken into account again in the future when considering the likeliness that perpetrators of international crimes can be delivered to The Hague.

The Ukrainian government’s degree of co-operation with the ICC has also been lacklustre in previous years, possibly because it is reluctant to see the prosecutor examine, as Tomasz Lachowski wrote in 2015, “all possible crimes committed by all parties of the conflict,” including those committed by Ukrainian armed forces. At the onset, there was an unreasonable expectation that the ICC would end impunity for all crimes committed on Ukrainian territory – including minor violations. Yet past experience shows that the prosecutor tends to limit the scope of investigation to high-level decision-makers, and it does not distinguish between the different sides of the conflict. As a consequence, Ukraine has no discretion in what cases should be brought to trial.

Any chance that the ICC succeeds, however, relies on support of the Ukrainian government. To increase the possibility of a full investigation, Ukraine could avoid a review and the use of “the interests of justice” by the PTC altogether with a referral that automatically authorises a formal investigation. Either the United Nations Security Council or any state party can make such a referral. If Ukraine would ratify the Rome Statute and become a state party, it would dispose of its own means to refer a situation to the ICC. While this option does not exclude the possibility that the ICC’s judges may decide against a trial at a later stage, it does allow the prosecutor to begin a full investigation and charge persons who committed the alleged crime. However, the Rome Statute’s ratification has been on hold since 2016 and there has been little sign of an increased initiative despite the campaigning of civil society organisations.

While the ICC does not have a reputation of delivering swift and decisive justice, it is one of the most effective instruments at the disposal of countries that may not have the resources to address major unlawful acts. Many reports have noted systemic problems with Ukraine’s judicial system due to a lack of staff, resources and good administration. Even if the new prosecutor general and Verkhovna Rada have good intentions about fixing these problems, time and resources will be required to overcome these challenges. There is no need to keep international justice on hold. The ECHR may well rule in favour of Ukraine on a number of human rights cases. In the meantime, the ICC should be a crucial actor, both in ending impunity for grave crimes and in supporting compliance with international legal standards.

Quincy Cloet is a Warsaw-based researcher with the Helsinki Foundation for Human Rights, and also works as deputy managing editor for Visegrad Insight. He holds a DPhil in International Politics from Aberystwyth University, Wales, and is the recipient of the 2019 Arenberg European prize.

international justice, Ukraine, war in Donbas