Genuine Investigations and Prosecutions for Increasing Crimes Committed in Eastern Ukraine Urgently Needed
Paris-Kharkiv, 19 July 2016. After a three-day seminar on documenting human rights violations held for Ukrainian lawyers and human rights defenders in Kharkiv from 4 to 6 July 2016, our organisations express their concern on the prevalent climate of impunity for crimes committed since the beginning of the armed conflict in Eastern Ukraine. Loopholes in Ukrainian legislation, problems of access to territories that are not controlled by Ukrainian authorities, and a lack of political will to genuinely investigate and prosecute these crimes, contribute to a situation of violence and impunity that should be investigated by the International Criminal Court (ICC).
“Perpetrators of the numerous serious human rights violations committed on the territories that are not controlled by the Ukrainian authorities are continuing to act without being properly held accountable”, declared our organisations. “Ukraine does not recognize the existence of an armed conflict, so no appropriate international or national body of law is being applied. Nonetheless, these crimes may amount to war crimes and/or crimes against humanity under the ICC Statute”, they added.
Lawlessness reigns in the territories not controlled by the Ukrainian government, constituting a major blow to human rights protection in Ukraine. Local lawyers and human rights activists documenting crimes committed since the outbreak of the conflict expressed numerous problems related to the lack of rule of law.
Of increasing concern is the exchange of captives between both parties to the conflict. This exchange is occurring in a legal void, exacerbating the problem of enforced disappearances on both sides. Approximately 3000 Ukrainian military and civilian captives in the hands of so-called "DNR-LPR forces" are said to have been exchanged for captured separatists since the beginning of the conflict in 2014, according to the Ukrainian Security Service (SBU) published on 21 December 2015. Besides not being regulated by any body of law, the circumstances surrounding the exchange are kept secret, including the temporary detention locations used, conditions of captivity and the ultimate fate of those exchanged. This practice has evolved from individual cases to a systematic practice lacking all transparency, and without any legal framework.
The monopolization of the negotiations leading to captives’ exchange by the Ukrainian Security Service accelerated further since the adoption of the Minsk II agreements in February 2015, which requires both sides of the conflict to secure the release and exchange of all hostages and illegally detained persons on the basis of the principle "all for all" (para. 6 of Minsk agreement). The problem is exacerbated because of not clearly formulated in the text of the agreement on amnesty requirement, which does not define the circle of persons covered by the amnesty, nor the terms and procedure of a possible amnesty.
«We reiterate that amnesty for international crimes and grave human rights violations is contrary to international law and Ukraine’s international human rights commitments, and would only contribute to the prevalence of impunity », said our organisations.
Since the beginning of the conflict, Ukrainian human rights organisations have reported a significant increase in cases of killings and enforced disappearance, torture and ill-treatment, illegal detention and destruction of property. Cases of sexual and gender-based crimes against both women and men have been reported, even if still largely under-documented. Therefore, the conclusions reached in FIDH’s report "Civilians Caught in the Crossfire"
on the systematic and widespread nature of crimes committed on the territories out of the Ukrainian government’s control remains relevant. These problems must be urgently addressed. The armed conflict in the Donetsk and Lugansk regions of Ukraine has generated serious human rights violations, which may amount to international crimes. These incidents must be properly investigated, at the national or international level, and perpetrators of war crimes and crimes against humanity should be identified and prosecuted.