Since ancient times philosophers, law and policymakers, advocates, activists have been debating the meaning of “justice”. From Plato’s “Republic” and Kant’s “Metaphysics of Morals” to modern definitions of justice, the concept has greatly evolved and expanded in various dimensions and by adding on different elements to it over the centuries. The nature of the evolution of justice has been weaved from the lessons learned based on humanity’s accumulated experience and evolution of the world as well as human values. Accountability as one of the elements of justice was articulated over 2000 years ago and to this day, if ensured properly, is perceived as one of the fundamental deterrents of future injustice including that which is caused by wars[1]. Russia’s war against Ukraine has had a profound effect on the geopolitical, geo-economic and geo-social status quo of the world, caused tectonic shifts and deepened divisions and its effect will continue to reverberate throughout the decades to come. Unless the world provides a consolidated, streamlined and coherent justice response, the global chasm that has been created will only continue to expand.
For over 10 years, Russia’s war of aggression and its annexation and occupation of Ukrainian territory has caused ever-increasing harm and injustice to the Ukrainian people, including through the commission of crimes under international law – for example, illegal detention, torture, rape, murder, forcible transfer or deportation, imposition of its citizenship, destruction of critical civilian infrastructure, the abduction of children and many more. It is well established that all of these allegations would amount to violations of international humanitarian and international criminal law, as well as international human rights law. The scale of the violations is also immense in terms of the widespread and often systematic nature of crimes committed, as well as the quantitative and qualitative gravity. If such crimes or violations are not investigated and prosecuted, or perpetrators are not deterred in their actions through being held accountable, on the international stage this may set another precedent of impunity, and may provide a level of encouragement to other states or actors which may be inclined to employ similar methods of warfare - inevitably posing a threat to humanity and the international legal order.
In Ukraine truth, justice and reparations for victims and survivors are inevitably interconnected with effective accountability of individual perpetrators through fair trials. Such justice related processes are necessary for the entire population to heal and to be given hope in the form of eventual accountability for all of the injustices that have been caused throughout the last decade. Absent effective and meaningful justice, generations will likely harbour hatred, dissatisfaction, pain and suffering which may erode society, adversely affecting its future progress and development.
Nevertheless, Ukraine - perhaps uniquely - compared to other states in the world suffering from the consequence of wars received an unprecedented international justice-related response in reaction to Russia’s full-scale invasion in February 2022. The reaction of the international community to the invasion demonstrated and proved two crucial points:
- that dealing with the consequences of the full-scale invasion is not and should not be only Ukraine’s responsibility, particularly in ensuring justice and accountability for grave international crimes, rather this is the responsibility of the entire international community;
- justice and accountability is one of the most important elements of how states respond to atrocities committed during warfare.
Overall, in as much as both statements are valid, Ukraine’s experience so far has demonstrated that a comprehensive, effective and fair international justice response, on the international and Ukrainian level can only be properly achieved when effective and appropriate (responding to the‘needs’ where necessary) international and domestic mechanisms, as well as a strengthened and comprehensive justice architecture are put in place. Of course, it is crucial to provide that the challenges facing Ukraine to pursue international justice are very significant – including challenges related to the scale of ongoing-criminality and significant difficulties to investigate and prosecute crimes under international law during an ongoing conflict. Indeed, many of these challenges would not be unique to Ukraine: many states would face struggles to pursue justice in similar circumstances.
However, these challenges notwithstanding, this report has presented a ‘needs assessment’ which is a vital exercise for future accountability in Ukraine and which has aimed to ascertain the challenges which exist in the Ukrainian criminal justice system. In particular ‘accountability gaps’ as they relate to Ukraine’s ability to investigate and prosecute an overwhelming number of individual and senior-level perpetrators of ongoing atrocity crimes, involving vast numbers of victims. Indeed, any future Ukrainian justice strategy, or international and national proposals for achieving international justice, should be based upon a comprehensive mapping and needs assessment of Ukraine’s capacity to investigate and prosecute crimes vis-à-vis the capacity and resources of the international and regional justice mechanisms engaged, as well as a similar mapping and assessment of victims.
It is hoped that in presenting empirical evidence of the ‘gaps’ in the Ukrainian system, a more ‘tailored’ international justice response can be considered and proposed. It is also envisaged that international actors should be influenced in their positions, having been presented with an assessment of Ukraine’s legal capacity and justice architecture.
In this regard, the current report has assessed that there are multiple pertaining challenges both at the domestic and international levels which must urgently be overcome to pursue international justice:
- The Ukrainian legal system does not currently have adequate technical and legal capacity to administer fair and effective justice and truth, justice and reparations for victims and reach the human rights standards demanded by the European Convention on Human Rights and other human rights treaties. Addressing this requires substantial legislative, infrastructural and resource-related changes.
- Taking into account the scale and number of expected cases, international institutions and third-states undertaking domestic investigations have very limited capacity to address the enormous scale of atrocity crimes committed in Ukraine. Where these responses are occurring they demonstrate a fragmented approach to international justice and accountability solutions;
- The existing architecture of justice in Ukraine and internationally is not fit to provide sufficient and effective response to the scale of atrocities caused by the Russian war of aggression against Ukraine.
Based on the above assessment the most effective and efficient solution to deal with such an enormous scale of violations requires urgent and further consideration. While further details could be ascertained and set out in further reports, it appears most appropriate at this stage, and based on the assessment carried out, that a strategic international justice response would require a comprehensive and complementary ‘tiered’ accountability architecture - supported by relevant compensation and reparations mechanism(s).