Ukraine’s civil society and state institutions have become experts in responding to atrocities committed by Russia in its war of aggression since 2014. Kateryna Busol argues that this experience provides fertile ground for cooperating with the international justice system to improve existing legal instruments for prosecuting war crimes and ensuring appropriate reparations.
The perception of Ukraine internationally has been affected by many forms of blindness. As far as justice is concerned, two common oversights deserve a closer look. First, Russia’s aggression against Ukraine and all the related atrocities actually began in 2014. And, second, Ukraine’s domestic response to both was unparalleled, even when international support was largely lacking.
For many, Russia’s aggression against Ukraine started in 2022. In fact, Ukraine has been resiliently withstanding Russia’s onslaught since 2014, when the latter occupied Crimea and instigated both direct and proxy warfare in Ukraine’s eastern regions. The first phase of Russia’s aggression was marked by largely the same patterns of crime that have dominated international headlines since February 2022, including enforced disappearances, killings, unlawful detention, deportation, torture and inhumane treatment, rape and other forms of sexual violence. The militarisation of education, the looting and destruction of cultural heritage, and environmental damage have also been observed. Russian authorities are responsible for the violent persecution of Ukrainians and Crimean Tatars for their opposition to the Kremlin’s occupation and for envisioning Ukraine as an independent sovereign nation. From 2014 to 2021, these atrocities amounted to war crimes, crimes against humanity (a widespread or systematic attack on a civilian population), and serious human rights violations. In 2022, there was an increase in the crimes’ gravity, frequency, and geographical scope; moreover, in connection with all of them and with Russia’s acute propaganda, allegations of genocide and direct and public incitement to genocide emerged.
Ukraine’s unwavering domestic efforts since 2014 to document and investigate conflict-related atrocities and to memorialise Ukrainian defenders have also largely gone unnoticed. War crimes, crimes against humanity, and genocide differ substantially from ordinary peacetime crimes. Ukrainian investigators face a lack of access to the occupied territories; the destruction of evidence; the acute multilayered traumas of survivors; and the need to prioritise victim and witness statements over the usual forensic evidence to prove the crimes and connect them to the perpetrators and their military and political command. This would be a gargantuan task for any well-resourced domestic criminal justice system. At the International Criminal Court (ICC), with leading international professionals, such proceedings take years. Between 2014 and 2021, Ukraine had to tackle them on its own — and lived up to the task. All the leading human rights NGOs — the Centre for Civil Liberties, Truth Hounds, Ukrainian Women Lawyers Association ‘JurFem’, Media Initiative for Human Rights, Crimea SOS, ZMINA, Eastern-Ukrainian Centre for Civic Initiatives, and others — were active long before they deservedly came into the spotlight in 2022. With insufficient funding, these civil society organisations (CSOs) have been learning by doing. Motivated by the responsibility to build the best version of Ukraine and realistic about the prospects of outside aid, human rights NGOs documented Russia’s atrocities in Crimea and Donbas, made submissions on them to the ICC Prosecutor, and supported domestic proceedings.
As a state, Ukraine also reacted to the Kremlin’s crimes in Crimea and Donbas. On the international level, Ukraine opened the avenue for the ICC investigation, and initiated proceedings against Russia at the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). Domestically, Ukraine’s specialised prosecutors’ offices for Crimea and Donbas were building war crimes cases. In 2019, the Office of the Prosecutor General (OPG) created a central war crimes unit in Kyiv. Following the Soviet legacy, Ukraine’s criminal justice professionals were not used to engaging with civil society and academia. However, the multiple challenges of novel atrocity crimes left them no choice: shared training, collaboration on criminal proceedings, and joint submissions to the ICC have followed. Together, Ukrainian human rights NGOs and state prosecutors pursued challenging atrocities such as sexual violence and environmental crimes, exposed Russia’s colonial practices in the temporarily occupied territories of Ukraine, and increased the involvement of women professionals in war crimes investigations.
Like with any demanding and underfunded process, Ukraine’s initial state and NGO response to conflict-related crimes was not flawless. The full scope of conflict-related sexual violence was not appreciated; victims and witnesses were often interviewed many times, causing re-traumatisation; and criminal legislation was not amended to reflect all the atrocities punishable under international law. And yet, Ukraine’s determined and consistent action against atrocities from 2014 to 2021 has honed the state and civil society’s expertise and prepared the country to face — and withstand — the escalated onslaught of 2022, where the number of atrocities has skyrocketed.
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Russia’s full-scale invasion has inflicted enormous pain on Ukraine and continues to do so daily. Building upon the experience of 2014 to 2021, Ukraine reacted swiftly to the mounting crimes. Leading human rights NGOs organised two coalitions — the Tribunal for Putin and the 5 AM Coalition (alluding to the timing of Putin’s announcement of the ‘special military operation’) — to better coordinate the documentation of atrocities and survivor assistance, including referrals for psycho-social support. The horrendous scope of the crimes necessitated the further specialisation of human rights NGOs: for instance, Truth Hounds has increasingly focused on layered environmental investigations,[1] and the Ukrainian Women Lawyers Association ‘JurFem’ has expanded its work on conflict-related sexual violence (CRSV).[2] The state War Crimes Unit has bolstered its activities across Ukraine, as the entire country has become a crime scene. New units, specialising in CRSV, cultural heritage, children, and the environment, were established by the OPG. The Atrocity Crimes Advisory Group (ACA) has provided international expert support to Ukraine’s prosecution. Ukrainian CSOs and the government have joined forces to support the ICC investigation and criminal proceedings into aggression-related atrocities by third states under the principle of universal jurisdiction,[3] as well as to call for the creation of a special tribunal on the Kremlin’s aggression.[4] Crucially, they are cooperating to develop reparations to meet the immediate needs of survivors of Russia’s barbarity.[5]
The ways Ukraine, at both the state and civil society levels, continues to respond to aggression-related crimes can catalyse and solidify important rule-of-law transformations, domestically and internationally.
Domestically, the cooperation between Ukraine’s civil society and the state has undergone tectonic shifts. Not only have human rights NGOs excelled in the documentation and analysis of some of the most challenging atrocities but they have also stepped in where the state’s action was impeded (for example, some survivors preferred to provide testimony to NGOs rather than to state investigators because of trauma or trust issues). Civil society’s support for the army, from joining its ranks to providing essential supplies, has in many ways secured Ukraine’s survival. Civilian participation and oversight are crucial for developing Ukraine’s resilient state institutions, which should be inherently people-centric.
Furthermore, women’s leadership is crucial to Ukraine’s civic, military, and state resilience. Women have organised local and nationwide support initiatives for internally displaced people, refugees, and veterans; joined the army in numbers exceeding those of some NATO states; and filled numerous positions left vacant because of male conscription. Ukraine’s principal human rights NGOs are led by women. Female survivors, including of CRSV, are instrumental in identifying and supporting recent victims of Russia’s barbaric attacks. The prosecution recognises that survivors, including males, often prefer engaging with female criminal justice professionals; the OPG’s departments on CRSV and children are headed by women. Despite being far from ideal, female representation in Ukraine’s Parliament has been consistently growing, and is at an historic high of 21 percent.[6] The expansion of female roles and leadership at all levels of state governance and civil society is fundamental to Ukraine’s recovery and resilience and must continue post-conflict.
While Russia specifically targets LGBTQI+ individuals because of their sexual orientation or gender identity, Ukrainian LGBTQI+ persons have been joining the army to defend their country since 2014. However, they are fighting a double battle: against Russia’s atrocities and against the lack of equality at home.[7] Ukraine should spearhead the legalisation of civil partnerships and other equal rights for single-sex couples. Practically, this would allow all defenders to have their loved ones by their side in intensive care, facilitate raising children, and guarantee inheritance rights. But it would also demonstrate that human dignity and protecting equal rights for everyone are genuine priorities in Ukraine.
Importantly, justice in Ukraine has to extend beyond the courtroom. Domestic and international criminal proceedings are long, and survivors are often reluctant to participate in them because of trauma, fear of retaliation, or other unresolved needs. These needs are varied, ranging from emergency contraception, abortion, gynaecological or urological care for CRSV survivors, to individual and couple counselling, new professional opportunities, or schooling and housing concerns caused by relocation. The multiplicity and urgency of these needs require a nuanced response through reparations. The holistic support of survivors through reparations does not replace criminal proceedings — instead, it shows that Ukrainian society sets its priorities right. Criminal investigations, reparations, new education programmes, critical art projects, truth-seeking, and memorialisation initiatives are the mutually complementary components of transitional justice. Ukraine should continue to develop this holistic approach as a pathway to societal healing, reflection, and recovery.
Finally, the tremendous international support extended to Ukraine since 2022 has enhanced the Ukrainian expertise that motivated local professionals have been developing since 2014. As they consider expert advice, Ukrainian professionals should maintain their intellectual sovereignty in its implementation. Given their unique lived and professional experience meeting the challenges of active warfare, Ukraine’s human rights lawyers, prosecutors, and judges should also share their expertise internationally. Their contributions will gradually inform the pursuit of justice by other civil societies suffering from atrocities around the world.
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Let us also consider the legal advances of international significance that Ukraine is driving. The first concerns reparations to atrocity survivors. Ukraine’s proactive position in providing reparations to victims of war crimes amidst the ongoing armed conflict should inspire similar practices internationally. The Nuremberg, Rwandan, and Cambodian tribunals are models of post-conflict justice. However, evidence collection and prosecutions, let alone healing the victims’ open wounds, cannot wait until hostilities end. Both international law and, crucially, survivors’ acute needs demand that healthcare, psychological support, and other reparations be provided as early as possible. Ukraine’s progress in demanding urgent interim and broader reparations could be both a case-study and a catalyst for designing and implementing similar reparation programmes elsewhere.
Another shift involves bridging the divides between the Global South, East, and North. The continuing legacy of Russia’s imperialism is largely unknown globally, especially in the former colonies of the so-called Global South. Russia has successfully appropriated the Soviet discourse on decolonisation[8] and invested enormous funds into diplomatic, cultural, and media networks across the Global South to spread its narratives. Introducing distinctions into such a well-designed and deeply-rooted knot of stereotypes requires time and resources. In the immediate future, the nations of the Global South and Ukraine could better understand each other’s perspectives, grievances, and vision for the future through the domain of transitional justice. Argentina, Chile, Kenya, Nepal, Peru, South Africa, and other countries in Latin America, Asia, and Africa all have valuable experience with truth commissions, war crimes prosecutions, the identification of the disappeared, and reparations. Engaging with its international partners on these issues would help Ukraine better design its transitional justice policies and encourage transparent conversations about the lingering imperial legacies in every corner of the globe.
Ukraine is also leading efforts toward the equalisation of justice for the crime of aggression. When Ukraine called for the special tribunal to try Russia’s leadership for the crime of aggression, some parties interpreted this appeal as yet another manifestation of double standards in international law. However, no existing international court may currently prosecute President Putin and his allies for unleashing their aggressive war against Ukrainians. Even the ICC, which formally includes the crime of aggression within its jurisdiction, is acutely limited in its power to adjudicate this crime. Therefore, Ukraine’s special tribunal appeal is justified. To make it more legitimate, Kyiv should also strive to amend the ICC jurisdictional regime to increase the Court’s power to prosecute future crimes of aggression. Now that Ukraine has ratified the ICC’s Rome Statute, it may propose amendments to the Court’s governing treaty, including on aggression matters. As reshaping the Rome Statute will not be quick, it does not affect the need to have a special tribunal for Russian aggressors. By leading the aggression amendment process at the ICC, Ukraine will demonstrate its commitment to justice for everyone, while also securing stronger support for the special tribunal initiative.
Yet another international legal issue advanced by Ukraine is accountability for ecocide. Russia’s weaponisation of Ukraine’s environment has been devastating. The aggression has further exposed connections between environmental degradation, starvation, cultural heritage preservation, displacement, and sexual violence. The uncovering of Russia’s environmental onslaught should support the proposed criminalisation of ecocide under international law.[9]
Finally, Ukraine should support the adoption of the crimes against humanity treaty. Crimes against humanity are the widespread or systematic attack of the civilian population pursuant to state policy by means of torture, enforced disappearances, sexual violence, persecution, or similar atrocities. It is the only international crime, which at present is not addressed by a dedicated treaty with mechanisms for holding states responsible. However, such an agreement has been under negotiation for years, and the debates around its adoption are reaching their critical point. Together with other atrocity-affected nations, Ukraine should become a leading advocate for the new treaty, which would ensure state responsibility for crimes against humanity and strengthen nations’ legal obligation to prevent and prosecute them.
Nothing can rectify the centuries-long destruction that Russia has been inflicting on Ukraine. The talented Ukrainians killed by Russia in its imperial, Soviet, and contemporary guises — like writer-turned-war-crimes-investigator Victoria Amelina — will never write the poems they could write, raise their children, or lead our society in building the Ukraine we aspire to live in, cherish, and pass on to future generations. Even so, we are determined to come out of this darkness — while bringing forth light. Ukraine’s civil society, realising its agency and responsibility, has already done many things that had seemed unimaginable. May that be an inspiration to take further steps — for the rule of law and for humanity — domestically and internationally.
Endnotes
[1] Truth Hounds, Study of the Destruction of the Kakhovka Dam and Its Impacts on Ecosystems, Agrarians, Other Civilians and International Justice, 6 June 2024 https://truth-hounds.org/en/cases/submerged-study-of-the-destruction-of-the-kakhovka-dam-and-its-impacts-on-ecosystems-agrarians-other-civilians-and-international-justice/.
[2] Ukrainian Women Lawyers Association ‘JurFem’, Wartime Violence https://jurfem.com.ua/en/wartime-violence/.
[3] Julian Borger, ‘German prosecutors handed evidence of Russian war crimes in Ukraine’, The Guardian, 26 October 2023 https://www.theguardian.com/world/2023/oct/26/german-prosecutors-evidence-russian-war-crimes-ukraine.
[4] President Zelenskyy, Ukraine’s Peace Formula Philosophy, Section 7. Restoration of Justice https://www.president.gov.ua/storage/j-files-storage/01/19/53/32af8d644e6cae41791548fc82ae2d8e_1691483767.pdf; Council of Europe, ‘Justice for crimes committed in Ukraine: Ministers of Justice discuss legal cooperation and a special tribunal for the crime of aggression’, 5 September 2024 https://www.coe.int/en/web/portal/-/justice-for-crimes-committed-in-ukraine-ministers-of-justice-discuss-legal-cooperation-and-a-special-tribunal-for-the-crime-of-aggression.
[5] Government Portal, ‘Olha Stefanishyna: Providing urgent interim reparations today should become an important element of achieving justice in the future’, 4 March 2024 https://www.kmu.gov.ua/en/news/olha-stefanishyna-zabezpechennia-nevidkladnykh-promizhnykh-reparatsii-vzhe-sohodni-maie-staty-vahomym-elementom-dosiahnennia-pravosuddia-u-maibutnomu#:~:text=The%20project%20envisages%20providing%20one,receive%20one%2Dtime%20interim%20compensation.
[6] Inter-Parliamentary Union, Ukraine https://www.ipu.org/parliament/UA; World Bank Group, Proportion of seats held by women in national parliaments (%) – Ukraine https://data.worldbank.org/indicator/SG.GEN.PARL.ZS?end=2023&locations=UA&start=1997&view=chart.
[7] Geneva Abdul, ‘Same-sex couples fight for civil unions to be legalised in Ukraine’, The Guardian, 31 December 2023 <https://www.theguardian.com/world/2023/dec/31/same-sex-couples-fight-for-civil-unions-to-be-legalised-in-ukraine>.
[8] Natalie Sabanadze, ‘Russia is using the Soviet playbook in the Global South to challenge the West — and it is working’, Chatham House, 16 May 2024 https://www.chathamhouse.org/2024/05/russia-using-soviet-playbook-global-south-challenge-west-and-it-working.
[9] Haroon Siddique, ‘Legal experts worldwide draw up ‘historic’ definition of ecocide’, The Guardian, 22 June 2021 https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide.
Dr Kateryna Busol is a Ukrainian lawyer. She is an Associate Professor at the National University of Kyiv-Mohyla Academy, and British Academy Research Fellow at the British Institute of International and Comparative Law.
Visual: Anna Zvyagintseva, Kyiv, 2024
