Anastasia Bagalika
Ihor Kotelyanets
Is it possible to bring those responsible for abductions of civilians to justice?
We spoke with Roman Martynovsky, a leading expert at the Regional Center for Human Rights. This human rights organization, based in Sevastopol, was forced to leave Crimea after Russian occupation.
Guests1
What is the status of the process of bringing to justice those responsible for Russian war crimes?
Roman Martynovsky: Finally, international judicial bodies have begun to make decisions on cases filed by our government and individuals. This indicates significant progress in the case. Six warrants have already been issued by the International Criminal Court against top Russian officials.
The process operates on two levels. The first level concerns state responsibility, with the Russian Federation held accountable as a state. The second level involves the responsibility of individuals for crimes committed in the occupied territories or in connection with the armed conflict. State responsibility is addressed by international judicial and extrajudicial bodies. Individual accountability, which has already begun, currently involves only six individuals at the International Criminal Court. These individuals are usually direct perpetrators of war crimes whom we have managed to detain on Ukrainian territory and bring to justice, or who have been sentenced in absentia.
There is a problem that we have not yet aligned our national criminal law with international criminal law, particularly concerning the responsibility of commanders and superiors.
When we talk about perpetrators of crimes, it often involves a situation where a certain official, commander, or civilian superior gives an order to an executor, who then carries it out. This is a common form of complicity, and there are no issues in bringing such a person to justice.
However, problems arise when a commander or superior does not give an order to commit a crime but knows that the crime will be committed, that such practices exist, and takes no measures to stop these practices or bring the perpetrators to justice.
Moreover, in the Russian Federation, the opposite occurs: those most involved in war crimes are given honors and recognition.
According to international criminal law, these individuals can be brought to justice. However, there is an issue with our legislation. Even the Prosecutor General’s Office lacks a clear position on whether we can prosecute commanders under Article 438 of our Criminal Code.
The sooner we remove this obstacle, the sooner we can start the prosecution process, at least under national law. The International Criminal Court will not prosecute all commanders.
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How does the proof procedure work in both cases?
Roman Martynovsky: When a commander gives a direct order to commit a crime, the usual procedure of proof is followed. The court considers the evidence appropriate and sufficient to either convict or acquit. This may include testimony from victims, witnesses, or persons prosecuted who claim to have carried out a particular order.
Regarding the responsibility of commanding officers, the procedure of proof is more complicated. Firstly, it is necessary to prove that the commander knew about what was happening. Secondly, it must be proven that it was within his competence to stop or prevent the commission of the crime. Thirdly, there are situations where the commander is aware that his subordinates have committed crimes but does not even initiate a disciplinary investigation.
The commander will not be held responsible for any official crime or anything else, but for the crime committed by his subordinates. This means if his subordinates committed murder, he will be responsible for murder. If they commit rape, he will be responsible for rape, even though he was not the perpetrator of the crime.
The evidence
Roman Martynovsky: In each case, individual evidence must be provided that relates to the person who is in the dock, or whom we want to be in the dock. Unfortunately, we cannot simply state that Russia is waging an illegal, criminal, aggressive war against Ukraine and therefore all those involved are criminals.
There is a rule that even a Russian soldier who kills our military is not responsible for the fact that he killed our defenders, because he is a combatant. Accordingly, the task of a combatant is to win on the battlefield.
Regarding the decision of the European Court of Human Rights, the evidence can be very broad. It can include reports from international organizations of various levels, such as the Human Rights Monitoring Mission, which has been operating in Ukraine since 2014, as well as reports from international non-governmental organizations.
The judgment of the European Court of Human Rights contains numerous references to reports from Ukrainian NGOs. In some instances, several pages of citations from these reports are included.
Each report is based on specific stories. When we analyze these stories, we find common features and a consistent pattern of state behavior. We then compile this information into a report. This approach makes a difference. If we simply write a report without any names or references to specific cases, even if they are anonymous, such a report is unlikely to interest the European Court of Human Rights or the International Criminal Court.
In general, I advise all people who come to us, and where there are grounds, to apply to the UN Human Rights Committee or the European Court of Human Rights. We can still apply to the European Court of Human Rights, as emphasized in its decision. The court stated that we can apply in cases where the violation of rights began before 16 September 2022. I advise everyone who has grounds to apply and receive a decision, although I am not sure that these decisions will be enforced. However, the existence of such a decision in the future may give a person the right to raise the issue of inclusion in certain registers of victims in order to receive compensation.
One way or another, after this conflict ends and the Russian Federation is finally put in its place, and after the political regime changes, decisions will be made to pay certain categories of compensation.
For cases that occurred after 16 September 2022, the judicial body should be different. Currently, it is the Human Rights Committee. The Committee’s decision on the practice of transferring prisoners from Crimea to the territory of the Russian Federation clearly states that the Russian Federation must rectify this situation, stop this practice, and return all the people it has illegally transferred to Crimea. We had three applicants, and the Committee’s decision applies to the entire practice.
As for other occupied territories, there is no difference from Crimea. People from the territory of the Zaporizhzhia region, the Kherson region, or from the Donetsk and Luhansk regions find themselves on the territory of the Russian Federation. They are forcibly moved across the internationally recognized border between Ukraine and the Russian Federation.
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Russians often violate property rights. Can they be punished for this?
Roman Martynovsky: As for the violations of property rights that began after 16 September 2022, you cannot go to the European Court for them because the ECHR does not protect property rights.
However, there are other aspects when other human rights are violated in conjunction with the seizure of property. For example, the right to respect for private and family life or even protection from inhuman treatment. By referring to these facts, you can go to the UN Human Rights Committee and argue that such a seizure was an interference with the right to privacy, but not purely on the grounds of property rights protection.
The importance of spreading information about Russian war crimes
Roman Martynovsky: What is happening now in Ukraine will have a huge impact on the entire system of international, criminal, and other types of justice.
For example, the Cyprus v. Turkey case lasted almost forty years. How long did it take the European Court to consider our case? Ten years. That’s a long time, but compared to what happened before, it is fast. International judicial institutions are thinking about how to improve their procedures.
Additionally, in no previous judgment has the court ever established the existence of such a huge number of administrative and judicial practices that constitute a massive violation of human rights. This shortens the path from filing a claim to obtaining a finding of a human rights violation and, consequently, to further redress.
Universal jurisdiction is a matter of individual criminal responsibility. No matter how effectively we use the mechanism of universal jurisdiction, it will not have a serious impact on relieving our national courts.
But why is it important to do so? Because in doing so, we provide even more evidence that the Russian Federation is committing war crimes on a large scale in Ukraine. By involving other countries, we also ensure the principle of impartiality. Our enemies may consider our national courts to be biased. In this case, a court in Germany, for example, will be more trustworthy.
Secondly, it is crucial for information about what is happening in Ukraine to be disseminated outside of Ukraine. It is important that as many people in the world as possible know about it.
Read also: Closure of churches and raids on priests: What happens to religious organisations in the occupied territories
In times of war, the program «Free our relatives» tells the stories of people, cities, villages, and entire regions that have been captured by Russian invaders. We discuss the war crimes committed by the Kremlin and its troops against the Ukrainian people.
The program is hosted by Ihor Kotelyanets and Anastasia Bagalika.
This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union. Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government. The contents are the responsibility of the authors.
USAID is the world’s premier international development agency and a catalytic actor driving development results. USAID’s work demonstrates American generosity, and promotes a path to recipient self-reliance and resilience, and advances U.S. national security and economic prosperity. USAID has partnered with Ukraine since 1992, providing more than $9 billion in assistance. USAID’s current strategic priorities include strengthening democracy and good governance, promoting economic development and energy security, improving health care systems, and mitigating the effects of the conflict in the east.
For additional information about USAID in Ukraine, please call USAID’s Development Outreach and Communications Office at: +38 (044) 521-5753. You may also visit our website: http://www.usaid.gov/ukraine or our Facebook page at https://www.facebook.com/USAIDUkraine.
