How many victims needed for Ukraine to finally prosecute for war crimes?
In the sixth year since Russia’s invasion of Crimea and military aggression in Donbas, Ukraine’s legislation can still not adequately punish perpetrators of horrific crimes against humanity, war crimes, etc. Legislators have the means to rectify the situation and a crucial draft bill, prepared by specialists on international law, is now on the parliamentary agenda, due to be considered on 6 June. Ukraine’s lawmakers act, or, more often, fail to act, in very mysterious ways, and it remains to be seen whether Draft bill No. 9438 can finally put an end to effective impunity.
International criminal law identifies four types of international crimes: genocide; crimes against humanity; war crimes and the crime of aggression. Ukraine’s Criminal Code at present covers the crime of genocide, but not crimes against humanity, and the crime of aggression does not comply with the contemporary definition of this crime. Article 438, on violation of the laws and customs of war, has dangerously vague wording with respect to war crimes, and also a limited number of listed crimes. The article mentions ill-treatment of POWs and civilians; forced labour; and the plundering of national heritage on occupied territory. In all other cases, the investigators can only scour international agreements which Ukraine has ratified.
It is, therefore, not surprising that only one Ukrainian court (in Sloviansk) has convicted a person under Article 438.
In many cases at present, investigators and prosecutors are forced to apply ordinary articles of the Criminal Code for crimes committed in war. In some cases, it is the victims themselves who object. Iryna Dovhan was wrapped in a Ukrainian flag and tied to a post in the centre of Donetsk, with a sign saying “she kills our children”, with people spitting at her and kicking her. She is adamant that the torture she was subjected to should not be classified under ordinary legislation.
It is often not possible to do so. Oleksandra Matviychuk, head of the Centre for Civil Liberties, cites the example of Russian mercenary Arseny Pavlov, or ‘Motorola’ and other militants who said that they would not take prisoners. Motorola was killed in a bomb blast at his home, however one of the war crimes that he should have faced war crimes charges for was the killing in cold blood of Ihor Branovytsky, one of the ‘Cyborgs’ defending Donetsk Airport, after he and his men had been taken prisoner by the militants.
Even where a crime is clear under any legislation, such as the torture and killing of 16-year-old schoolboy Stepan Chubenko, it is surely vital to establish that this was a war crime, whose militant commander perpetrator Vadim Pogodin is being protected by Russia. Stepan was seized by the Russian-controlled militants because of the Ukrainian colours on his backpack and hideously tortured, before being shot dead.
Matviychuk points out that another vital reason for Ukraine to get its legislation into order is the fairly vague wording in the article of the Minsk Agreement on amnesties. International law is unequivocal that there can be no amnesty for international crimes. Given the impossibility at present of prosecuting people whom Russia is providing shelter to, or who are in occupied Donbas, it is important also that international crimes are not time-barred. Those now holding at very least 120 hostages in occupied Donbas, including journalists Stanislav Aseyev and Oleh Halaziuk, should know that they will one day answer for torture and other crimes.