If Ukraine’s Fate Is not a Menu à La Carte, then Ukrainian Voices Must Be Heard

Russian President Putin’s announcement of the “special military operation” against my native Ukraine coincided with my reading of Soviet Judgment at Nuremberg by Francine Hirsch. And while some are still wondering how Russia is so blatantly abusing the legal regime prohibiting the use of force, which the Soviet Union helped establish, Ukrainians have hardly been caught by surprise. In fact, we have been living in the real-life setting of yet another great book – The World of Yesterday by Stefan Zweig – for years. While some are still largely refusing to believe that we are in a contemporary 1938 moment – and are fast approaching 1939, – Ukraine has been living in the reality of a Russia-generated armed conflict – and adapting to and acting upon its consequences – since 2014.

The February 2022 escalation, shocking in its scale and viciousness, has generated an avalanche of legal and policy analyses internationally. In contrast, the dynamics and the accompanying violations of the Russia-Ukraine armed conflict between 2014 and 2022 did not attract so much varied practitioner and scholarly attention at the time. However well-intentioned and welcomed, the new proposed responses to Russia’s escalated aggression cannot be fully viable unless they thoroughly consider the pre-2022 developments, Ukraine’s multifaceted efforts to address them and the wider regional, especially post-Soviet deliberations. For that, the following considerations may be relevant:

1. Russia initiated its aggression against Ukraine in 2014, reenforcing it with new visibility and viciousness in 2022. Any accountability mechanism for the crime of aggression should consider the whole spectrum of Russia’s unlawful use of force. Russia’s neo-imperial fixation on Ukraine spiked in 2014, when it occupied Ukraine’s Crimean peninsula and stepped, through proxies and directly, into the eastern provinces of Ukraine’s Donetsk and Luhansk regions (Donbas) ( 22, 26). This is when article 2(4) of the UN Charter was breached and the Russia-Ukraine armed conflict started – in 2014. Any comprehensive legal examination of Russia’s aggression should go back at least to 2014 and, to analyse its external and internal enablers, – even further back. The idealised symbolism of Nuremberg is an important regional consideration. It must be taken into account when developing any accountability model for Russia’s continuing aggression and designing strategic communication around it.

2. In its legal and policy responses to Russia’s initial aggression against Ukraine since 2014, the international community has made two foundational mistakes. First, it made false differentiations between the issues of Crimea and Donbas. Second, it failed to respond timely and proportionately to the mounting violations in both areas. The international community has largely followed Russia’s narrative about the different levels of its involvement in Crimea and in Donbas ( 15-16, 20-21). Blurring its instrumental role in both hotbeds of the armed conflict, Russia has successfully made it conveniently more difficult – albeit not impossible – for international partners to see the Kremlin’s synergistic intention concerning Crimea and Donbas and act upon both holistically. This solidified the silent postponement of proactive debates on the de-occupation and reintegration of Crimea and the freezing of the armed conflict in eastern Ukraine. While demanding the particular implementation of the Minsk II agreement, unacceptable for Ukraine because it would further gravely undermine its sovereignty from within, Russia conducted the policy of mass “passportisation” of Ukrainian citizens in Donbas’ two self-proclaimed “republics”. In this way, the Kremlin was securing more pretexts for potential interventions allegedly to protect the newly proclaimed Russian “citizens” and Russian-speaking groups. Russia successfully activated this pretext on 24 February 2022 – this time without disguise – to unite under its control both Donbas and Crimea all the way to Moldova’s occupied Transnistria.

Between 2014 and February 2022, the protracted armed conflict in Ukraine gradually became latent to many observers and, until Russia’s full-scale invasion, suffered from the lack of meaningful and effective international action, including from the ICC. Despite continuing human rights and IHL violations and international crimes – enforced disappearances, torture, rape and other forms of conflict-related sexual violence, unlawful detentions, sham trials, appropriation of private and public property, violations against cultural heritage, persecution on political grounds, deportations, forced conscription to the enemy armed forces – in Crimea and Donbas during the initial eight years of Russia’s aggression (paras. 278-281), the situation in Ukraine was not listed among the 10 Conflicts to Watch in 2021. Despite the UNGA’s regular recognition of the grave human rights situation in and militarisation of occupied Crimea, which posed larger regional and international threats, Ukraine had to launch the Crimea Platform to galvanise and recalibrate a concerted international governmental, academic and civil society action for the de-occupation and reintegration of its peninsula. Despite numerous reports on the dire human rights dynamics in Crimea and Donbas from Ukraine’s prosecutor’s  offices, the UN Human Rights Monitoring Mission, international and domestic (here, here and here) human rights NGOs, it took the ICC Prosecutor seven years to conclude the preliminary examination of the situation in the country in 2020. While Ukraine’s human rights community recognised the limitations of domestic conflict-related proceedings (p. 21) and called upon the ICC Prosecutor to seek the authorisation of the Pre-Trial Chamber for an investigation without protraction, the OTP needed the vicious February 2022 escalation and the (unprecedented) 39+ state referral to proceed.

3. Ukraine has been developing a legal response to Russia’s aggression, domestically and internationally, since 2014 and is not a tabula rasa in terms of its institutional knowledge and efforts. Ukraine realised that no court could holistically adjudicate on the issues of sovereignty over and violations in Crimea and Donbas ( 26). Therefore, Ukraine has brought different aspects of the Russia-generated armed conflict to numerous international and regional fora and arbitration platforms (ICJ, ICC, ECtHR, UNCLOS Arbitral Tribunal) to hold Russia accountable as a state and ensure the individual criminal responsibility of its political and military leadership.

Recognising the understandable lack of domestic expertise in dealing with war crimes – the country had not engaged in active hostilities on its soil since World War II and did not have a significant cohort of domestic international lawyers with practical experience before international tribunals, – Ukraine started opening up to external consultancy. Through this combination of domestic – state and civil society – and international effort, the military received increasingly more IHL training; the outdated military manual was revised; specialised strategies for dealing with Crimea and Donbas were devised; criminal proceedings, including concerning aggression, were developed and the specialised War Crimes Unit was established.

The above processes were not flawless. The lack of access to the temporarily occupied territories, the overcautiousness about the novelty of the types of evidence acceptable for international crimes proceedings as opposed to the ordinary criminal cases and the need for enhanced professional development of domestic investigators, prosecutors and judges while dealing with complex atrocity cases have complicated and protracted Ukraine’s handling of conflict-related violations. With the drastic expansion of the territorial scope of atrocities after February 2022, the expedited professional mobilisation of all criminal justice professionals across the country and the harmonisation of their efforts to address crimes arising out of Russia’s aggression with those of international colleagues and Ukraine’s human rights community have become a new challenge.

However imperfect, Ukraine’s lawfare initiatives have demonstrated its willingness to act upon conflict-related violations since 2014. The consideration and support (not devoid of constructive criticism) of the steps Ukraine, as a state and civil society, has been making are key for building an effective response to atrocities that followed the full-scale invasion.

4. Ukraine has been developing a transitional justice policy. This effort to design a viable holistic strategy of the nation’s transition and reconciliation that transcend a courtroom should continue. While Ukraine, like many other conflict-affected nations, was initially overfocused on accountability, it has gradually come to realise that a wider approach to justice, peace and reconciliation was needed. The more sustainable support for survivors with proper reparations and the launch of a country-wide discussion about the wider causes and enablers of Russia’s aggression were overdue. In October 2019, then newly elected President Zelenskyy supported the development of Ukraine’s transitional justice roadmap, which aimed to harmonise Ukraine’s scattered justice efforts under one forward-looking umbrella policy. Symbolically, this declaration was made in Mariupol – Ukraine’s major port city which became one of Russia’s key targets and crime scenes since the full-scale invasion. For more on Ukraine’s transitional justice efforts and ways to enhance them taking into account the February 2022 escalation, read here and here.

5. Ukrainian civil society has been instrumental in catalysing justice efforts since 2014. The meaningful engagement and coordination of domestic and international accountability and wider justice actors with Ukrainian human rights groups will ensure a better response to the challenges of the full-scale invasion. Domestic human rights NGOs were more dynamic in adapting to new realities and novel documentation needs of the armed conflict in Crimea and Donbas. This has prompted a fruitful cooperation with Ukraine’s criminal justice sector since 2014. Ukraine’s leading human rights NGOs – the Helsinki Human Rights Union, Truth Hounds, the Regional Centre for Human Rights and others – have shared evidence with the prosecution, engaged in training criminal justice professionals and co-drafted ICC communications. NGOs were the first to act upon certain particularly sensitive violations such as conflict-related sexual violence. NGOs and academic human rights specialists have also been instrumental in designing Ukraine’s transitional justice roadmap.

Importantly, cooperation with the state has, for the most part, not made Ukraine’s civil society compromised or dependent. The coordination on the issues of mutual understanding did not prevent most of the Ukrainian human rights community from criticising the government where they thought that the authorities were not doing their job. For instance, the very same NGOs that cooperate with Ukraine’s criminal justice professionals on domestic conflict-related proceedings and ICC communications have been vocal in their criticism of Parliament’s failure to ratify the Rome Statute or the President’s protraction with enacting the overdue amendments to the criminal legislation to enhance domestic war crime trials.

6. A legal and policy response to Russia’s aggression and conflict-related violations will be viable only if nourished by relevant local and regional knowledge. First, as mentioned, numerous crimes have been perpetrated since the beginning of Russia’s aggression in 2014. Addressing only the atrocities committed since February 2022 would both neglect the larger picture of the escalating patterns of crimes and, more detrimentally, risk ignoring survivors who were victimised before the full-scale invasion. To avoid that in all the diverse justice efforts being initiated now, Ukrainian and foreign legal and other professionals who have worked on the conflict since 2014 must be involved. Second, Russia’s aggression against Ukraine has deep historical and cultural undercurrents. No legal analysis of a mental element, of a policy component of crimes against humanity or of a possible genocidal intent will be holistic without a sustainable engagement with non-legal experts on Ukraine and the region. In order to truly act upon the complicated legacies of various formerly subjugated nations, it is necessary to understand the hierarchies and hegemonies that have dominated regional realities. Russia has consistently treated former Soviet nations merely as its sphere of influence (see here, here, here, here, here, here and here). The Kremlin’s current encroachment on Ukraine is inherently neo-colonial. Understanding these connotations is crucial not just for atrocity trials, but for the larger sustainable and meaningful societal transitions of Ukraine, Russia, Belarus and other post-Soviet nations. The local and regional professionals have much to contribute to such processes.

The Only Way Forward

When Philippe Sands discusses his acclaimed book East West Street, he often emphasises the creative resilience of Hersch Lauterpacht and Raphael Lemkin. These two extraordinary international jurists, who coined the concepts “crimes against humanity” and “genocide” while not yet certain about the fate of their own Jewish families amid the Holocaust, “didn’t curl up and weep”. Instead, they developed a legal regime to prosecute Nazi war criminals and lay the foundations of contemporary international human rights and criminal law.

When I think about this example now, Russia’s military machine is shelling my native Kyiv; bombing maternity wards and hospitals; raping children, women and men of all ages; looting cultural heritage; imposing passportisation and planning new “referenda” and self-proclaimed “republics” on the territory of a sovereign nation. I still freeze when my colleagues apologise (!) for having to urgently drop out of a Zoom call because an air raid siren is on again and they have to rush to a bomb shelter. Or when my students say they might be forced to miss the next online seminar because they are searching for their relatives in Mariupol, from whom they have not heard for a month. When the “Russian world” is coming after your loved ones, it is excruciatingly hard to rise above the survivor guilt complex and do something, let alone be meaningfully productive. And yet, this is the only option we have now: to keep doing what we can do best and do it even better. Ukrainians will continue fighting on all fronts, including on the front of international law. And it is important that this avenue be informed by a resilient choir of mutually supportive international and domestic voices. Only such a concerted effort may aid “hope and history rhyme”.