Full-fledged justice as well as holding liable those responsible for the war crimes in Donbas is impossible until the Ukrainian legislation does not comply with the international legal standards. Ukrainian judges lack the necessary toolkit, while gaps in the legislation make it impossible to restore justice for the majority of the war victims in Donbas and for their families. Human rights defenders have already drafted the required amendments to the legislation, they are now undergoing approval with the government. Human rights defenders emphasized the state of play at a press-briefing at Ukraine Crisis Media Center.
“Ukraine has not ratified the Rome Statute yet, however, even without ratifying it Ukraine can change its legislation so that it corresponds to the international standards, first of all by introducing the notions of a crime against humanity and that of a war crime. […] These are the provisions that allow evaluating the actions and the violations happening in eastern Ukraine and in occupied Crimea according to the international standards. Until then, unfortunately, we will be having legal problems as our courts will not be able to correctly qualify what is going on in the conflict zone. Respectively, these cases will be falling into pieces and encourage impunity,” explained Oleksandra Romantsova, deputy head of the Center for Civil Liberties.
Oleksandra Romantsova reminded that the need to harmonize the Ukrainian legislation in accordance with the international legislation was stipulated by the decision of the National Security and Defense Council of 25 January 2015 “On extraordinary actions to counter the Russian threat and the acts of terrorism carried out under the support of the Russian Federation”. According to the decision, the respective law was supposed to be drafted. Both the Action Plan for the implementation of the National strategy on human rights till 2020 and the PACE resolution no.2112 (2016) also emphasized the need to have the legislation harmonized.
These draft changes have already been elaborated by a working group in the framework of the platform “Human Rights Agenda”. The draft law in question is “On amending a series of laws for harmonizing the criminal legislation with the provisions of the international law”. The document was approved by the Ministry of Justice and is currently undergoing the approval procedure in other ministries as required.
“It is suggested that the universal jurisdiction is applied in Ukraine. As a result, even the smallest issue concerning crimes against humanity will be addressed at the national level instead of being passed for consideration to international courts,” said Oleksandr Pavlichenko, Chairman of the Board of the Ukrainian Helsinki Human Rights Union.
The draft law introduces the notion of a crime against humanity as well as the differentiation of such crimes, the provision on non-application of the limitation period to the crimes against humanity. It also foresees the possibility of pre-trial investigation in absentia as well as holding legal entities involved in crimes against humanity liable. The draft law also includes the provision that stipulates the impossibility of holding liable twice for the same crime as well as harmonizes the national procedure with the international ones for prosecution for the crimes committed in Ukraine during the armed conflict.
“The only way to win the conflict is to make the rule of law prevailing over club law. It may take longer but there is no alternative. […] The overwhelming majority of nations in the UN declared the illegality of the annexation of Crimea, and this is a big victory for Ukraine. Now the next step is to make sure that Ukraine fully cooperates and fully integrates itself in the International Criminal Court,” said David Donat Cattin, Ph.D. in Law, Secretary-General of the “Parliamentarians for Global Action” network. “The ICC has already opened an investigation, or preliminary examination with some preliminary findings, to be more precise. And one of those findings is an international armed conflict taking place on Ukrainian territory, and because of this international armed conflict all the legislation on war crimes can be applied, regardless of the rhetoric”. He added that in accordance with the international law Ukraine has to guarantee the investigation of such crimes.
The human rights defenders said that in case the changes in question are introduced to the Criminal Code of Ukraine, the principle of non-retroactivity will not be applied to the legislation, as the definition qualifying these actions as a crime already existed when the events in Crimea and Donbas started unfolding. “We are actually transferring this provision from the international legislation into the national one, and we are bringing it up to date,” Pavlichenko explained.
Oleksandra Romantsova noted that the legal status of the events in Donbas as that of the “anti-terrorist operation” (ATO) will not prevent the crimes committed in Donbas from being qualified as war crimes. “International humanitarian law starts working for an armed conflict even if it is a non-declared war. It applies in case of any armed conflict, and our ‘ATO’ fits in, irrespective of whether it has been acknowledged as an international or a local conflict, the international humanitarian law starts working,” she explained.
