Domestic measures for addressing “conflict-related sexual violence” (CRSV) in the context of Russia’s war of aggression against Ukraine

By Kateryna Ilikchiyeva and Kate Levine

A significant number of cases of torture, including incidents of sexual violence, were documented in Ukraine even before the full-scale invasion, starting with the occupation of parts of Ukraine's territories in 2014. Russia's large-scale invasion of Ukraine has further highlighted the use of sexual violence as a method of warfare. In particular, such cases of crimes have been reported by former captives who were unlawfully detained by Russia in the occupied territories in inhumane conditions.

This problem is not limited to Russia's war against Ukraine; the use of sexual violence as a weapon has been characteristic of many wars. There are numerous examples, including, but not limited to: during World War II, German, Japanese, and Soviet soldiers committed sexual violence; American soldiers used such violence during the Korean and Vietnam campaigns; women and men were victimized during the Balkan Wars and the ethnic cleansings in Rwanda; Kurdish women in Syria suffer from the actions of Turkish troops.¹

Conflict-related sexual violence (hereafter referred to as CRSV) is used as a tool to influence the civilian population and as an element of power, psychological influence, and humiliation of the opposing side's military.² From a criminological perspective, a distinctive feature of CRSV is the shift in the stratification of the three mandatory components of any sexual violence, namely power (force), anger, and sexual dissatisfaction. However, sexual violence against the civilian population also serves as a means of psychological influence on the opponent—"we have raped your women; you have nothing left to fight for" or "we have stripped you of your power, you are no longer warriors." Such patterns are especially prevalent in patriarchal societies, where only men are considered "warriors," and women are regarded as the "objects" of relationships.

What exactly do we mean by conflict-related sexual violence, and who are the victims and perpetrators?

CRSV is a form of sexual violence against an individual or group of individuals that is directly or indirectly related to a conflict. According to international law and judicial practice, CRSV includes the following actions:

• rape;
• sexual slavery;
• coercion into prostitution;
• forced pregnancy;
• forced abortion;
• forced sterilisation;
• any other forms of sexual violence, such as torture, genital mutilation, forced nudity, forced witnessing of sexual violence against relatives or loved ones, and so on.

CRSV can constitute a component of a war crime, genocide, and a crime against humanity. Individuals who may be held criminally liable for CRSV include military personnel and other representatives of the parties involved in the armed conflict. Theoretically, commanders and other individuals who are subordinate (provided that evidence of subordination and other relevant factors are established) may also be held criminally liable for CRSV.

Victims of CRSV can include children, women, and men of any age, regardless of occupation, nationality, or citizenship. According to statistics from the Office of the Prosecutor General, as of April 1 , 349 instances of CRSV committed by Russian military personnel have been officially documented (men -124, women - 225, 19 of them minors, including 18 girls and 1 boy). In matters of accountability, it is crucial to always focus not only on the aspect of punishment but also on upholding the rights and interests of those affected by CRSV.

Classification under national legislation

According to the Criminal Code of Ukraine (CCU) and considering that CRSV constitutes a violation of international humanitarian law, such cases are examined and prosecuted under Article 438 of the CCU ("Violations of the Laws and Customs of War"). To emphasise the importance of recognising and understanding that CRSV is a most severe crime, it is necessary to highlight Ukraine's bitter experience: when, starting in 2014, such cases began to be reported to law enforcement, they were classified under general criminal articles of the Criminal Code of Ukraine rather than as the most severe international crimes. Only after Russia's full-scale invasion in 2022 were these cases reclassified under Article 438 of the CCU. Unfortunately, the wording of the objective element of the crime defined in this article still does not explicitly distinguish CRSV as a separate type of crime but covers similar acts. The provisions of this article are blanket norms that refer to international humanitarian and international criminal law, stating that:

"the use of means of warfare prohibited by international law, other violations of the laws and customs of war provided for in international treaties recognised as binding by the Verkhovna Rada of Ukraine, as well as issuing an order to commit such actions."

The modern understanding and approaches to addressing CRSV are reflected in international treaties, as well as in the judicial practice of tribunals, where, among other things, the following positions regarding sexual violence in the conditions of armed conflict have been established:

• Rape can constitute both a form of a crime against humanity and a form of a war crime.
• Rape can be a form of torture as both a crime against humanity and a war crime.
• Rape and/or other forms of sexual violence can be part of genocide, as it may constitute acts causing serious harm, physical or mental trauma to members of the targeted group.
• Rape and/or other forms of sexual violence can be part of persecution and enslavement as crimes against humanity.
• Sexual violence can be part of the humiliation of human dignity and inhumane treatment as a form of war crimes.

Criminal proceedings in Ukraine

Criminal liability under Article 438 of the CCU provides for individual criminal responsibility for both the direct perpetrator and the person who issued the order to commit such actions or whose tacit consent allowed these actions to be committed.

As of the date of writing this article, the investigation of CRSV cases is conducted by investigators from the Security Service of Ukraine and the National Police of Ukraine under the procedural supervision of the Office for Procedural Guidance and Support for Public Prosecution in Criminal Proceedings on Crimes Related to Sexual Violence within the Department for Countering Crimes Committed in the Conditions of Armed Conflict at the Office of the Prosecutor General of Ukraine. The advantages of appealing to the national justice system for CRSV victims include the possibility of achieving the investigation and court trial of the case relatively quickly. However, on the other hand, questions arise regarding the quality of such investigations. The national system prioritises the speed of investigations due to the vast number of cases and the desire to demonstrate "results" to victims and international partners. Due to this, the quality of investigations may suffer, as investigative actions, collection and verification of evidence may not be carried out properly.

Working with survivors of CRSV

When representing the interests of CRSV survivors, it is important to remember that this is a highly traumatic event, and survivors will require significant psychological support throughout the pre-trial and trial proceedings. Cooperation with a psychologist is crucial. This is also relevant for the representatives of survivors if the latter do not express a desire to seek psychological assistance. Another important point is that for many representatives of law enforcement and judicial bodies, this category of cases is also new, and established articulated practices are still lacking, which is why it is crucial to collaborate in order to minimise the retraumatisation of survivors.

By raping Ukrainians, predominantly women, the Russian side seeks to demoralise Ukraine's armed forces, emphasising their inability to protect their population. Another phenomenon associated with the consequences of sexual violence is the division of society. Psychologists explain this by the fact that relatives, compatriots, or fellow villagers of those who have survived sexual violence often attempt to "distance themselves" from the survivors and even blame them for it. In this way, society, feeling shame for these "dirty" crimes, attempts to "wash itself clean" of them and assert that they would never have become victims of such a disgraceful crime, that their dignity remains intact, and that the so-called "shame" of the victim should not concern them.

Today, little is discussed about it, but there is a significant problem of victim-blaming and stigmatisation of CRSV survivors. Therefore, we recommend that individuals who have experienced CRSV seek professional psychological assistance. Survivors of CRSV bear no responsibility for what happened to them. And this must be remembered by everyone, by society as a whole. In Ukraine, there are numerous NGOs and funds collaborating with the Office of the Prosecutor General of Ukraine that provide psychological assistance to survivors, including: NGO La Strada Ukraine, the Ukrainian Women Lawyers Association JurFem, UNFPA (the United Nations Population Fund), among others. In particular, NGO La Strada Ukraine, in cooperation with the Office of the Prosecutor General of Ukraine, has developed and launched a chatbot for survivors of war-related sexual violence, where necessary information can be obtained. In partnership between UNFPA and the Government of Ukraine, Centres for Assistance to Survivors (https://www.help-platform.in.ua, https://ukraine.unfpa.org/uk/SRC, https://1547.ukc.gov.ua/dovidkova-informatsiya/tsentry-dopomogy-vryatovanym/) as well as the Aurora online platform were opened, aimed at supporting survivors.

Regarding the legal aspect of the issue, CRSV survivors who have found the strength to initiate the investigation process are recommended to seek legal representation. Especially given that, according to the Law "On Free Legal Aid," victims of criminal offences against sexual freedom and sexual integrity, torture, or cruel treatment during military actions or armed conflict are entitled to receive such legal services free of charge through free legal aid centres. Additionally, legal assistance can be provided by NGOs and charitable foundations upon request from the victims (survivors).

Interim reparations

On 2 May 2024, a Pilot Project for the Provision of Urgent Interim Reparations to CRSV Survivors in Ukraine was presented and implemented; under this project, the first 500 individuals who applied for urgent interim reparations and were identified as CRSV survivors during the ongoing armed conflict received interim compensation of €3,000 each.

The Pilot Project only restricted the right of prisoners of war to receive urgent interim reparations (this restriction does not apply to civilian captives), as the Ukrainian government has other means of legal protection in place to support prisoners of war.

On 20 November 2024, the Law of Ukraine "On Legal and Social Protection of Persons Affected by Sexual Violence Related to the Armed Aggression of the Russian Federation Against Ukraine and the Provision of Urgent Interim Reparations to Them" was adopted and will come into force on 18 June 2025. This law defines the fundamental principles of state policy in the area of legal and social protection of persons affected by sexual violence related to the armed aggression of the Russian Federation against Ukraine and the provision of urgent interim reparations to them.

In this law, the term "sexual violence related to the armed aggression of the Russian Federation against Ukraine" refers to sexual violence committed against any person in connection with the armed aggression of the Russian Federation against Ukraine starting from 20 February 2014, including rape, forced pregnancy, forced sterilisation, forced abortion, coercion into prostitution, sexual exploitation, coercion into sexual intercourse with a third party, coercion into observing sexual acts, sexual slavery, human trafficking for the purpose of sexual exploitation, forced circumcision, forced castration, mutilation or violent acts against genital organs, forced nudity of a sexual nature, any other form of sexual violence, as well as threats and attempts to commit such acts.

Thus, victims (survivors) who have experienced or are experiencing CRSV during the period starting from 20 February 2014 are entitled to obtain the status of a person affected by sexual violence related to the armed aggression of the Russian Federation against Ukraine and to receive urgent interim reparations for the purpose of restoring the violated rights of such individuals. It includes:

1. obtaining information about their rights and possibilities to exercise them;
2. the right to receive free rehabilitation regardless of place of residence and in accordance with the needs, including a set of medical, psychosocial and other measures aimed at restoring the physical and psychological condition and social functions of the affected person;
3. the right to receive an immediate cash payment;
4. the right to free legal aid;
5. the right to temporary shelter if necessary;
6. the right to social services.

The law does not restrict prisoners of war from obtaining the status of a person affected by sexual violence related to the armed aggression of the Russian Federation against Ukraine or from receiving urgent interim reparations.

Notes

1. Zimbardo, Philip. 2007. The Lucifer Effect: Understanding How Good People Turn Evil; Askin, Kelly Dawn. 1997. War Crimes Against Women: Prosecution in International War Crimes Tribunals; United Nations Security Council Resolution 1820 (2008), URL: https://www.un.org/shestandsforpeace/content/united-nations-security-council-resolution-1820-2008-sres18202008.
2. Zimbardo, Philip. 2007. The Lucifer Effect: Understanding How Good People Turn Evil; Askin, Kelly Dawn. 1997. War Crimes Against Women: Prosecution in International War Crimes Tribunals.