6 years of Russian aggression and war criminals whom Ukraine cannot prosecute
How many years can a country be under attack, yet remain without fundamental legal mechanisms for fighting war crimes and crimes against humanity, and for prosecuting those who commit them? Ukrainian human rights groups and former hostages with chilling stories of torture and other crimes are calling on Ukrainian MPs to adopt a draft law No. 2689 that can put an end to virtual impunity for war criminals.
Progress had appeared to be made last year on making crucial amendments to Ukrainian legislation with a draft bill, No. 9438 even getting through a first reading on 8 June 2019. MPs were still not inclined to hurry, however, and new parliamentary elections took place in July 2019 without the bill having been adopted in its entirety. It has now been reworked and re-registered in the Verkhovna Rada as No. 2689 “on amendments to some legislative acts regarding implementation of international criminal and humanitarian law’.
At a press conference on 4 February, Kostyantyn Zadoya, an assistant professor of law at Kyiv National University, mentioned Russia’s persecution of Crimean Tatars in occupied Crimea as one of the many examples where current Ukrainian legislation is simply incapable of reacting to the new reality before us. Persecution, he said, is a particular type of crime against humanity, and yet it is not listed in Ukraine’s Criminal Code as a crime. “Even if you find another norm and prosecute for actions which are a crime under international law as though they were an ordinary crime, this will fail to take into account the context of organized violence.”
One of the many former hostages calling for adoption of such a law is Oleksandr Hryshchenko, a veterinary surgeon from Luhansk who was taken prisoner by the militants on 14 July 2014 and held in a basement. He was initially seized because he didn’t have his passport on him, only work ID, and because the militants looked at the photos on his camera and found photos of pro-Ukrainian demonstrations and of Euromaidan. “The militants stopped me and immediately claimed that just those photos were sufficient grounds to execute him on the spot or to at least shoot him in the legs.”
The militants claimed he was a spy and set to torturing him, with the use of beatings, electric shocks and other torture methods. In general, he says, “people were thrown into that prison and tortured at the least suspicion that they were loyal to Ukraine or helped the Ukrainian Armed Forces. Often the pretext was a report by telephone about the civic position of this or that person.” Nobody actually bothered to check such reports, he says, but people were seized. On one occasion, two men were thrown into the dungeon and tortured merely for having crossed the road in front of a car carrying the ‘commander’ of one of the armed formations. Three pensioners were separately caught simply because they were seen walking near a militant unit, with the militants claiming that they were directing artillery fire for the Ukrainian Armed Forces. They too were savagely tortured. Hryshchenko mentions that the militants set dogs on the hostages, shot at them with shock pistols and used them as punching bags.
“I also saw how at night a young woman was regularly taken away, supposedly for questioning; however, we all understand very well that they were simply raping her in an adjoining room. I saw how an underage girl was taken several times to military positions as a gift to the militants for their sexual needs. In other words, that was repeated group rape”.
Over the six months that he was held prisoner, the bodies of people tortured to death or simply killed were periodically taken out of the basement. Nobody has been punished for these undoubtedly grave crimes and he and other former victims of the militants are adamant that such impunity is unacceptable.
Ukraine’s Criminal Code is woefully lacking in legal instruments for qualifying the war crimes and crimes against humanity which Russia’s military aggression in Crimea and Donbas have brought to Ukraine. As a consequence, in the last six years, only one person has been convicted of a war crime.
International criminal law identifies four types of international crimes: genocide; crimes against humanity; war crimes and the crime of aggression. One of the authors of the bills tabled in parliament is Anton Korynevych, now the President’s Representative on Crimea. He has repeatedly pointed to the failings of the present Criminal Code which 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. 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. The authors modelled their draft law on the Rome Statute (of the International Criminal Court). Ukraine’s MPs have now run out of any excuse against ratifying this vital document, and seemingly plan to do so. Since Ukraine 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 from 20 February 2014 onwards, any delay in ratifying the Rome Statute is 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.
The amendments, once passed, will broaden the number of war crimes that Ukrainian legislation can prosecute for without having to search for guidance in international documents. At present, the killing of a soldier after he was taken prisoner can only be treated as murder, although this is very clearly a grave war crime.
Such war crimes or crimes against humanity cannot have any time bar and are not subject to any amnesty. This is of critical importance, human rights groups have long stressed, especially given the provision on amnesty in the Minsk Agreement(s). If the first at least made it clear that capital offences cannot fall under an amnesty, Minsk II’ agreed at a summit on 12 February 2015, states the following: “5. Ensure pardon and amnesty by enacting the law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Luhansk regions of Ukraine”.
As Oleksandr Matviychuk, Director of Ukraine’s Centre for Civil Liberties, stresses, by introducing this law and thus bringing Ukrainian legislation into line with international law, Ukraine will “put an end to any attempts from Russia to put pressure on Ukraine to amnesty war criminals”.