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30.10.2018 | Halya Coynash

After almost 5 years of Russian aggression, Ukraine is still unable to prosecute for war crimes

Russian mercenary is believed to have tortured this Ukrainian from Komunar to death, hostage
   

Almost five years have passed since Russia launched its military aggression against Ukraine, yet in all that time only one person has been convicted of a war crime.  While catching some of the worst war criminals is difficult, the main problem lies in  glaring gaps in Ukrainian legislation which the government has been in no hurry to rectify. 

A bill, drawn up by lawyers for the Human Rights Agenda coalition of NGOs and the Justice Ministry would establish liability for crimes against humanity and war crimes, and make other necessary amendments to Ukraine’s Criminal Code to bring it into line with international legislation.  It had been awaiting review by the Cabinet of Ministers for a year, however there is now hope since the relevant government committee endorsed the bill on 25 October, and will be passing it to the Cabinet of Ministers. 

The government should try explaining why even this first step has taken so long to people like Iryna Dovhan, who was bound to a post in Donetsk and tormented for her pro-Ukrainian position, or to the pregnant woman who pleaded with her torturers not to beat her because she was pregnant, and was told that it was good that a Ukrainian child would die.  They should look former civilian hostages and prisoners of war who still bear the scars of the electric shocks, or other forms of torture they were subjected to, in the eye.  The politicians don’t, however, preferring to hide behind closed doors while former hostages, prisoners of war and the relatives of those tortured to death or illegally abducted and held prisoner stand out on the street pleading for their own government to defend their rights.  One of those attending such protests is Olena Rybak, the widow of Horlivka deputy Volodymyr Rybak, who was abducted and savagely tortured to death by Russian or Russian-backed militants in April 2014. “It’s insane”, she says angrily, “that Ukraine, while dreaming of the EU, is not implementing international humanitarian law, and does not punish those who have shattered our lives”.

International criminal law identifies four types of international crimes: genocide; crimes against humanity; war crimes and the crime of aggression.

Anton Korynevych, one of the authors of the draft bill, explains that the Criminal Code in its present form covers the crime of genocide but has nothing about crimes against humanity.  Article 438 (violation of the laws and customs of war) has very vague formulations regarding war crimes, while the article on the crime of aggression is not in keeping with the contemporary definition of this crime.  This, he says, is the reason why since 2014 only one Ukrainian court has passed a ruling under Article 438.

The proposed bill would enable Ukrainian courts to examine such international crimes on the basis of the same principles as those adhered to by the International Criminal Court at the Hague.

Korynevych notes that the authors of the bill examined the legislation of various countries, but decided that the best model remained the Rome Statute (of the International Criminal Court).  Ukraine’s Criminal Code was originally drawn up back in Soviet times.  The norms on international crimes were drawn up before the Rome Statute was passed and are now evidently out of date. 

As reported, Ukraine’s government is continuing to drag its heels with ratification of the Rome Statute.  This is all the more absurd as it has recognized  the jurisdiction of the International Criminal Court [ICC] with respect both to crimes committed during Euromaidan and to those committed in connection with the occupation of Crimea and military conflict in Donbas.  The latter jurisdiction has been given only a starting date (20 February 2014), but no cut-off point, making any delay with ratification of the Rome Statute essentially pointless.  This is all the more true as Ukraine has ratified the four Geneva Conventions and the protocols to them which essentially regulate the same crimes.

In an extensive analysis of the situation, Mykola Myrny notes that the action plan for Ukraine’s National Strategy on Human Rights obliged the government to draw up a draft bill that would rectify all parts of Ukrainian legislation that did not comply with international humanitarian law. Ukraine has been reminded of the need to do this at least twice by the Parliamentary Assembly of the Council of Europe.

Whereas Article 8 of the Rome Statute specifies 50 types of war crime, Article 438 of Ukraine’s Criminal Code at present mentions only ill-treatment of prisoners of war or civilians; forced labour and the plundering of national wealth on occupied territory.  In other cases, investigators are advised to search for guidance in international agreements.  As Mykola Khavronyuk, criminal law expert and co-author of the new draft bill, points out, the investigators often have no idea which agreements are referred to.

What this means in practice is that cases where, for example, a soldier has been shot and killed after being taken prisoner, are classified by investigators as ‘murder’ under Article 115 of the Criminal Code.

Alina Pavlyuk, from the Ukrainian Helsinki Human Rights Union, stresses that the organized and systemic nature of such killings during an armed conflict mean that they should be viewed as war crimes. “Such acts are of the highest level of danger to the public, and should therefore carry much harsher liability, with no possibility of amnesty”.

There is nothing in the Criminal Code as it stands about forced labour as a war crime.  Pavlyuk mentions how former PoW have reported being sent to demine areas, with militant snipers, having given them orders, then watching them from a safe distance

What is needed, therefore, is a clear list of international crimes in the Criminal Code for which the perpetrators will be held liable.

It will certainly need to contain mention of sexual crimes, which at the moment are only dealt with in the Criminal Code under rape or perverse satisfying of sexual desires. At the end of September, the International Federation for Human Rights together with the East Ukrainian Centre for Civic Initiatives submitted a report to the ICC on sexual crimes committed against both women and men in areas under Kremlin-backed militant control.  The crimes included rape, attempts or threats of rape, electrocution of genital areas; enforced prostitution, sexual slavery, humiliation and cruel treatment of a sexual nature, forced nudity and damage or threatened damage to sexual organs”.  The NGOs stress that these “sexual crimes were committed with the intend to punish pro-Ukrainian combatants, to extract confessions or extort property, or for the purpose of combatants’ sexual gratification”.

The draft bill that Ukraine’s Cabinet of Ministers is sitting on could resolve many of the above problems. 

It clearly specifies which crimes cannot fall under the scope of an amnesty, nor have a time bar attached.

There has long been argument about necessary limitations to the agreement in the Minsk accords of a general amnesty.  That, however, does not apply to “capital crimes”, and could therefore also not be applicable to crimes against humanity and war crimes.

The proposed sections would include crimes of the most immediate relevance. Such as forcing people to serve in militarized formations on the opposing side, involving them in armed action against their own country; moving population onto occupied territory or moving them to the territory of the occupying power.  This is particularly critical with respect to the imposition of conscription of Crimeans into the Russian Army.

The bill envisages prosecution for the failure to provide fair and adequate court proceedings in cases linked with the armed conflict, as well as for cases where there have been sentences without a court trial.

It introduces criminal liability for crimes against humanity and also for crimes of aggression (involving state military force). This means criminalizing not only invasion, occupation and the bombing of territory by armed forces, but also blockades of ports or shore, as well as attacks on the country’s forces.

One of the specific features of Russia’s undeclared war against Ukraine has been the major deployment of mercenaries,  Well-known human rights activist Mykola Kozyrev believes that Russia is assuming that the lack of official status for such bands will allow it to avoid liability.  Not so, he says, and cites UN Resolution No. 3314 from 14 December 1974.  This unequivocally places within its list of acts of aggression the following: “(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State…”

Myrny spoke with Iryna Marchuk, from the Centre for International Law, Conflict and Crisis Studies at Copenhagen University about whether this law can be applied from the beginning of the conflict in Donbas when, at first glance, this seems to infringe the constitutional principle that a law is not retroactive.  She believes this is not a problem, since war crimes, crimes against humanity and genocide are present in international legal documents, such as the Geneva Conventions, that Ukraine had recognized before the beginning of the conflict.  These are not new crimes  which are being added to the Criminal Code, she stresses, and notes that a norm was added in 2003 to the Criminal Code of Bosnia and Herzegovina.  This specifically states that the restriction regarding the non-retroactive nature of the law does not apply to acts which international law recognizes as international crimes.

The fact that the International Criminal Court’s jurisdiction has been recognized by Ukraine does not mean that the latter can sit back and do nothing.  Pavlyuk stresses that the ICC is there to help in identifying  and, in principle, prosecuting those whom Ukraine cannot reach, including key organizers in Russia.  Its involvement does not, and cannot, waive Ukraine’s immediate and pressing responsibility to get its own legislation in order

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