MATRA-Ukraine: The Halfway MarkPublished 22 September 2022
July marked the halfway point of the T.M.C. Asser Instituut and Global Rights Compliance (GRC)’s partnered MATRA-Ukraine project ‘Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes’, which is funded by the Netherlands Ministry of Foreign Affairs.
While the conflict in Ukraine began in 2014, the announcement by President Putin of a ‘special military operation’ in Ukraine and the subsequent invasion of Ukraine by Russian Forces on 24 February of this year has resulted in a full-scale conflict with devastating impacts on Ukrainian civilians and civilian infrastructure. As a result, the MATRA-Ukraine project has had to adapt to these changed circumstances and ensure activities are undertaken which will best support Ukrainian criminal justice actors, CSOs and journalists who now have the complex task of navigating and processing an overwhelming number of reports of international crimes during the ongoing conflict.
Although there is now a multitude of international initiatives seeking to gather evidence and hold perpetrators accountable on an international stage, the continued drive and hard work of the national authorities in Ukraine remains more imperative than ever. This juncture presents an opportunity to reflect on the achievements of the project so far in assisting national efforts to investigate, prosecute, adjudicate and report on international crimes in Ukraine, and look towards what lies ahead.
In the beginning: assessing the situation in Ukraine
When the MATRA-Ukraine project began in July 2020, the conflict in Ukraine had already been ongoing for six years. The Maidan protests, occupation and illegal annexation of Crimea by Russia, the declarations of independence of the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) by separatists and the ensuing conflict and occupation in Eastern Ukraine resulted in widespread reports of human rights violations and international crimes.
In October 2019, the Ukrainian authorities escalated their efforts to prosecute international crimes by creating a War Crimes Unit within the Office of the Prosecutor General, tasked with overseeing investigations and prosecutions in relation to conflict-related crimes. There was still, however, a great deal to do, including to align Ukrainian law with international criminal law, and to enhance the capacity of criminal justice actors, CSOs and journalists in handling these crimes.
In terms of the legal framework, in September 2020, a draft law 2689 “On amendments to certain legislative acts on the Enforcement of International Criminal and Humanitarian Law” was adopted by the Verkhova Rada, which sought to incorporate universal jurisdiction, war crimes, crimes against humanity, genocide and command responsibility in the style of the Rome Statute provisions into the Criminal Code of Ukraine, however this has not been approved by the President to date. It must be noted that although a further draft law 7290 “On amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine” has also been registered with the Verkhova Rada, it has not yet been introduced for voting. It contains similarities to draft law 2689, but some differences, including that it does not contain a provision on universal jurisdiction and contains a restricted provision on command responsibility which only criminalises the omission of a commander, person acting as a commander or other superiors to terminate a war crime, crime of aggression, crime against humanity or genocide by a subordinate (see more on developments following the invasion below).
Criminal justice actors, CSOs and journalists have therefore also had to learn how to document, investigate, prosecute, adjudicate and report on international crimes within the remits of their current legal framework, but also with international standards in mind. As part of the project, and to present a clearer picture of the situation in Ukraine in terms of processing international crimes, GRC therefore updated three in-depth reports both in English and Ukrainian: ‘The Domestic Implementation of IHL in Ukraine’; ‘Ukraine and the International Criminal Court’; and ‘The Enforcement of IHL in Ukraine’. Summaries (or ‘Quicksheets’) of these documents can be found here, here and here, respectively.
Sharing best practices
The project so far has focused on sharing best practices relating to investigating, prosecuting, adjudicating and reporting on international crimes with relevant Ukrainian stakeholders. For example, Karolina Aksamitowska wrote a report entitled 'War Crimes Units: Legislative, Organisational and Technical Lessons' for the project, which identifies multiple best practices and lessons learned from various domestic war crimes units operating in Europe.
Furthermore, in February 2021, a two-day virtual exchange meeting was held for Ukrainian investigators and prosecutors, where several experts from a range of international and national backgrounds, including from Georgia and the Netherlands, shared their experiences and recommendations. During the same month, a two-day meeting was also held for journalists and CSOs on the documentation of a variety of international crimes and other human rights violations. In June 2021, the Asser Institute hosted a two-day online exchange meeting which brought Ukrainian judges together with several international and domestic speakers with experience adjudicating international crimes, from the International Criminal Tribunal for the former Yugoslavia, to the Kosovo Specialist Chambers, to Georgia and the Balkan regions. In January 2022, a second exchange meeting was held for investigators and prosecutors, bringing in international experts in remote interviews, vulnerable witnesses, digital open-source investigations and investigations into violations of international humanitarian law by a State's own forces.
Overall, the events held provided platforms for Ukrainian actors to access international (and other national) expertise, and also share the unique challenges that they faced. What became apparent, was that further resources, infrastructure and strategic guidance was needed in order for Ukrainian actors to implement these best practices into their daily work. In the latter part of 2021 and into early 2022, work therefore began on preparing strategic analyses in order to provide tailored recommendations to Ukrainian investigators, prosecutors and judges.
For example, throughout 2021 and 2022, desk-based research and consultations were carried out to identify and understand the relevant gaps and deficiencies in the Ukrainian Government’s approach to investigating and prosecuting conflict-related crimes. As a result, GRC drafted Recommendations for Addressing Conflict-Related Crimes in Ukraine, with a Draft Prosecutorial Strategy which was shared with the Office of the Prosecutor General of Ukraine in November 2021 and further discussed until the full-scale invasion rendered the strategy outdated. Strategic advice was also provided to the WCU, including on investigation and prosecution of sexual and gender-based crimes, the war crime of using protected persons as shields, and the elements of the crime of aggression.
Training and capacity-building
As the Covid-19 pandemic made face-to-face meetings more challenging, several trainings with the Luhansk, Donetsk and Crimean Prosecutors’ Offices were held online throughout 2020 and 2021, including on issues such as Ukraine’s relationship with the ICC and Draft Law 2689. In December 2021, in collaboration with PAX, the MATRA-project also held an online training session for CSOs and journalists on the concepts of justice and transitional justice and its application to Ukraine; engaging with victims and witnesses of armed conflicts and maximising outreach; and non-violent communication and the facilitation of dialogue.
GRC’s team on the ground in Ukraine nonetheless conducted trainings and workshops in person where possible. For example, in October 2021 GRC team members Anna Mykytenko and Ruby Axelson visited the Luhansk Prosecutor’s Office in the city of Severodonetsk. As part of the visit, Ms. Mykytenko and Ms. Axelson conducted two training sessions with the War Crimes Department ('WCD') of the Luhansk Prosecutor’s Office covering topics including: an introduction to international humanitarian law, international crimes under Ukraine’s draft Bill 2689, how to investigate the contextual elements of crimes against humanity and war crimes (including how to establish non-international armed conflict, international armed conflicts, and occupation), and how to recognise and prove the crime against humanity of torture. In December 2021, GRC team members Anna Mykytenko and Maksym Vishchyk conducted another a training session with prosecutors and investigators of the Luhansk Prosecutor’s Office’s WCD with a focus on interviewing victims and witnesses of international crimes and witness protection.
In October 2021, assistance was also provided to the Donetsk and Luhansk Regional Prosecutor’s Offices in submitting an Article 15 Communication to the International Criminal Court related to 43 incidents of attacks on, and the destruction of, bridges during the armed conflict in Donbas between May 2014 and January 2019. In early 2022, assistance was also provided to the Office of the Prosecutor of the Autonomous Republic of Crimea in preparing a similar communication on the persecution of Crimean Tatars.
Following the invasion
The invasion of 24 February 2022 by Russian forces amplified the civilian suffering in Ukraine. Although figures are estimated to be much higher, the Office of the UN High Commissioner for Human Rights reported, as at 4 September 2022, that there has been over 13,000 civilian casualties. As of 5 September 2022, over 31,000 incidents of war crimes, aggression, propaganda of war, and genocide have been registered (under Articles 438, 437, 436, and 442 of the Ukrainian Criminal Code, respectively). National stakeholders in Ukraine such as the Office of the Prosecutor General are now being offered and receiving a range of support from international and other national actors, and the MATRA-project has therefore adapted to these changed circumstances. The project is continuing to support the Office of the Prosecutor General, through research and advice for and to the recently created Atrocity Crimes Advisory Group and in particular the Mobile Justice Teams led by GRC’s Wayne Jordash QC.
In June 2022, a report written by Olga Kavran for the project on the best communication and outreach practices of international and other national prosecutorial offices and courts was published, and further work will be done towards specific recommendations tailored to the Ukrainian position, given that enhanced, clear and accurate communication and outreach is now ever more important for the Ukrainian authorities.
Preparation is also underway for the mid-term MATRA-Ukraine conference due to be held in November 2022 in The Hague, the Netherlands, which will comprise a public conference focused on Ukraine’s national efforts to process international crimes in light of the invasion, followed by closed roundtables with specific stakeholders to discuss and brainstorm solutions to particular challenges.
The MATRA-Ukraine team will continue to work with Ukrainian judges who may adjudicate on international crimes through provision of strategic recommendations, materials to enhance their expertise and trainings. It will also expand its work with defence and victim lawyers, CSOs and journalists to build their capacity through trainings, collaboration and mentorship. We are inspired by the motivation and drive of our Ukrainian team members and the Ukrainian stakeholders to pursue justice and accountability for international crimes occurring in Ukraine, despite the circumstances and challenges they are facing. In recognising the importance of national efforts to this end, and by focusing on a range of actors within the criminal justice chain in Ukraine, the MATRA-Ukraine project endeavours to continue its holistic approach to the pursuit of accountability for the atrocities committed and justice for victims.