19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
11 December 2020
Name of the Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine (Hosted by the Ukrainian Legal Advisory Group)
Report By: Marielotte van Ballegooijen, Junior Research Associate PILPG-NL
Highlights:
Panelists underlined the challenges of investigating grave crimes committed in Ukraine, particularly the intimidation of witnesses and disappearance of evidence at the national level.
Panelists noted that even if the international community assists in addressing these investigation challenges, structural changes are required within the Ukrainian justice system to achieve accountability.
Summary of the Event:
This side event, organized by the Ukrainian Legal Advisory Group (ULAG), brought attention to accountability for alleged grave crimes committed during the armed conflict in Ukraine. Five years ago, the Office of the Prosecutor (OTP) opened a preliminary examination into the crimes committed in Ukraine. At the same time, Ukrainian authorities conducted their own investigations. This side event aimed to address a specific question related to the ICC’s principle of complementarity: How should the nexus between the Ukrainian state’s responsibility to investigate and prosecute grave crimes and the role of the ICC be balanced?
The moderator of the event, Ms. Nadia Volkova, Director of ULAG, introduced the panel consisting of Ms. Valeriya Melnik, Mr. Akardiy Bushchenko, Ms. Katrin Weilhammer, Mr. Eric Witte, Ms. Priya Pillai, and Mr. Rod Rastan.
Moderator Ms. Volkova directed the first question to Ms. Melnik, Prosecutor of the Department for the Supervision of Crimes Committed During Armed Conflict under the Office of the Prosecutor General of Ukraine, on the challenges the Department faces when trying to achieve accountability. Ms. Melnik noted that the first challenge is that Ukraine struggles to effectively conduct investigations, mainly due to its relatively weak justice system. She mentioned issues such as the temporal scope of the alleged crimes that hinder the investigation process. For instance, victims and alleged perpetrators continue to reside in occupied territory, which means conducting discussions or interviews with them is impossible. Besides this, a procedural challenge is that under Article 219 of the Ukrainian Criminal Code, pre-trial investigations need to be conducted within eighteen months after the alleged crimes were committed. This poses a time limit problem that contradicts the Rome Statute, under which no statute of limitations is applicable to war crimes.
Following Ms. Melkin’s remarks on these challenges, Mr. Bushchenko, Judge of the First Chamber’s Criminal Cassation Court in Ukraine, noted that war crimes prosecutions are extremely difficult in Ukraine. He described that the Department is working alone with few resources, which may lead to the disappearance of evidence or intimidation of witnesses. He proposed to structurally reform the Ukrainian justice system to improve investigations, witness protection, and perpetrator interrogations. Although these issues occur at the national level, he noted that the ICC could assist Ukraine with restructuring, as offices such as the OTP could lend resources to aid in pre-trial investigations.
After panelists with experience at the national level had spoken, the moderator invited panelists from the international level to share their thoughts. Ms. Weilhammer, Head of the National Justice Programme of Justice Rapid Response, noted that, besides the already mentioned challenges related to the Ukrainian legal framework, there are also certain capacity and evidentiary challenges as well as challenges with prosecutorial strategy. A further identified issue at the national level is witness management and witness protection. The final main challenge Ms. Weilhammer pointed to concerns victim participation. Ms. Weilhammer described that at the national level prosecution tends to focus on perpetrators, but argued that this approach should be shifted to include victims as well. This could lead to more evidence, as victims would feel empowered to come forward. Ending her remarks, she concluded that these challenges do not only arise domestically, but are also challenges prosecutors and investigators at the international level face.
Mr. Witte, Senior Policy Officer at the Open Society Justice Initiative, followed by sharing potential models that could address some of the specific challenges and needs mentioned, referring to models used in other situations as reflected in OSJI’s 2018 handbook on “Options for Justice”. He specifically referred to a successful model implemented in Guatemala. The Guatemalan model, with the International Commission against Impunity (CICIG), included international prosecutors and advisors working at the national level and providing advice, mentorship, and legal knowledge on how to move forward in the investigations and prosecutions, rather than taking over the work from domestic departments. This model led to multiple prosecutions, such as a genocide conviction of a previous head of state and dictator General Efraín Ríos Montt. On a final note, Mr. Witte underlined that such models should be informed by the needs of the country and that they are largely dependent on political will. They only work if, at a national level, states are willing to accept the international community’s involvement.
Ms. Priya Pillai, international lawyer and Head of the Asia Justice Coalition, continued with Mr. Witte’s train of thought and discussed the potential importance of a coalition between the international community and states, using the Asia Justice Coalition as example. She argued that a coalition can ensure proper communication, transparency between individuals, and diversity in approaches. The existence of a coalition could also contribute to political will, as individuals are equally taken into account, and could generate both internal and external support. She noted, however, that involvement by the international community does not always lead to successful prosecutions.
The side event ended with Mr. Rastan, representative of the ICCs OTP, with remarks on the PE in Ukraine and complementarity. Mr. Rastan briefly referred to the debate of whether the ICC takes the state’s concerns into account or whether they proceed with investigations and expect the state to simply accept their conclusions. Mr. Rastan underlined that the ICC wishes to support national authorities in their accountability efforts. He further reiterated what the OTP had mentioned at last years’ ASP: that the OTP has identified crimes committed in Ukraine that fall under the Court’s jurisdiction and that the OTP has noted the actions undertaken by Ukrainian authorities as well as challenges at the national level. Building on this, Mr. Rasten informed participants that an announcement on the PE will be made later today. If an investigation were to be opened, he continued, complementarity would remain a crucial point, highlighting the importance of continued cooperation between the ICC (as a court of last resort) and Ukrainian national authorities in the fight against impunity. He referred to successful examples of the ICCs complementary operation with national authorities in the Central African Republic, Libya, the Democratic Republic of Congo, and Uganda, in which the OTP was able to work with national authorities on prosecuting alleged perpetrators. He also concurred with Ms. Pillai’s point that even if the ICC proceeds with an investigation into the grave crimes committed in Ukraine, it does not end there as an ICC investigation does not mean a successful investigation nor does it resolve structural issues at the national level. If an investigation were to be opened, that would be the moment to re-emphasize close engagement between the ICC and national authorities, as well as to build a coalition or network to strengthen accountability at the national level.
A recording of the event can be found here: https://www.youtube.com/watch?v=qSmjAh6J-ek&feature=youtu.be.