ULAG held a discussion on the topic: “Justice in the Face of Existential Challenges: Creating an Indestructible System”
At a critical moment, as Ukraine enters the process of peace negotiations, the Ukrainian Legal Advisory Group (ULAG) warns that accountability for international crimes may be sacrificed for political compromises, depriving thousands of victims of hope for justice.
With the support of the International Renaissance Foundation, ULAG held a two-panel discussion dedicated to the architecture of justice in Ukraine. The event brought together representatives of investigative bodies, prosecutors, judges, government authorities, as well as national and international experts and civil society. Participants discussed the challenges facing national and international justice systems and explored ways to address them.
During the event, ULAG also presented updates to the report Needs Assessment of the Ukraine’s Justice System, which identifies gaps and proposes potential solutions within the justice system.
Nadia Volkova, Founder and Head of Ukrainian Legal Advisory Group, opened the event with words that clearly describe the current context and one of the main gaps in achieving justice for victims:
While discussions, bargaining and negotiations continue about what kind of peace there will be in Ukraine, what resources we will hand over to whom, and who will provide us with what security guarantees, it is very disturbing that the issue of justice for international crimes is not on the agenda in any discourse. Although it is obvious that ensuring accountability is the key guarantee of non-recurrence, and therefore a guarantee of security. In fact, even we hear from various unofficial sources that there will be no accountability, and there is an unspoken demand from several parties to stop all criminal prosecutions.
Roman Romanov, Human Rights and Justice Program Director, International Renaissance Foundation added the following about the context:
We now find ourselves in a very difficult situation. Looking from the top down, the prospects of investigations by the International Criminal Court (ICC) have been called into question, especially after the United States imposed sanctions. Within the framework of Universal Jurisdiction (UJ) in other countries, we have not yet seen a significant increase in effectiveness—particularly considering that other mechanisms exist, including Ukrainian investigations as well as the ongoing ICC investigation. This raises the question: why should other countries, within their national jurisdictions, investigate crimes committed on Ukrainian territory? So far, there is no systemic answer to this, and we are not seeing much enthusiasm from our partners in this regard either.
Achieving sustainable and ‘just’ peace is impossible without ensuring justice for grave international crimes. Ensuring justice requires a coherent and coordinated legal system at the national and international levels. However, the challenges faced by the national justice system due to the scale of grave crimes committed and the duration of the international armed conflict in Ukraine, as well as attacks on the International Criminal Court, undermine the quality of the process and put at risk the delivery of justice to war victims. Therefore, the existing architecture should be strengthened by establishing an internationalised (hybrid) mechanism for Ukraine for at least four major international crimes (the crime of aggression, war crimes, crimes against humanity and the crime of genocide).
As part of the two-panel discussions, we analysed trends, needs, and challenges facing the national justice system and human rights protection, as well as potential solutions for Ukraine’s justice architecture.
І Panel : The role of the national justice system in overcoming the challenges of achieving justice for Ukraine
In September 2024, ULAG presented the report Needs Assessment of Ukraine’s Justice System. For us, this text is a living document that continues to evolve alongside changes in Ukraine’s justice system, the development of national practice, court decisions, and emerging challenges. These factors not only affect the stability of the system at the national level but also shape the broader development of international justice.
On this day, we discussed the updated text, which reflects changes in the provision of justice for Ukraine over the past six months. We also examined how the national justice system is responding to the impact of recent trends in the political and legal landscape and explored potential directions for its further development.
Key Takeaways from the Speakers:
Ihor Kalantai, Head of the MID’s Department of Investigation of Crimes Committed in the Armed Conflict, National Police of Ukraine
The problem with investigative jurisdiction remains open and has not yet been resolved. Why is this a problem? Because we are losing time. The process of transferring the proceedings from the Security Service to the National Police takes a certain period of time, which leads to the loss of material evidence, the loss of opportunities to document the facts of specific types of crimes efficiently and promptly. Secondly, there is the issue of retrospectivity (changes to the Criminal Code of Ukraine). One type of grave international crimes has now been introduced, which has not been previously used in our legislation at all, namely crimes against humanity. Given the fact that we have already registered a very large number of facts of war crimes, which can be further put into the context of crimes against humanity, we do not understand whether they will be possible to apply in the future in order to qualify the actions of criminals under this article.
Andrii Leshchenko, Deputy Head, Division for Procedural Guidance and Public Prosecution, Department for Countering Crimes Committed in the context of Armed Conflict, Prosecutor General's Office of Ukraine
The issue of prioritisation ends at the moment when a victim comes to you and says that, for example, my son/father/husband died at the front, you have a case - and what are the results of this case? We say, purely theoretically, that, sorry, but it is not a priority in our investigation, and we cannot allocate our own time and efforts to ensure a proper investigation of this crime. If we look at the number of crimes that are committed on a daily basis that are currently under investigation by the investigating authorities, there are more than 150,000 of them. The number of investigators and prosecutors has been unchanged since at least 2019. The number of prosecutors is set by a separate law, and we cannot increase the number of people working in this area, so we are increasing the workload of these people.
Prioritisation can be done in different ways, some prioritise on the principle of getting a quick result, when we talk about such a negative phenomenon in our law enforcement system as statistical indicators, but we, the prosecutors, the leadership of the Prosecutor General's Office as a coordinating body for all law enforcement agencies, emphasise that we are not interested in the number of criminal proceedings that you have solved, sent to court, received sentences, or notified of suspicion of these persons, we are interested in a quality investigation. We are interested in the future prospect of a real conviction of a person for committing the crime.
Maryna Bondarenko, Judge-Speaker, Darnytskyi District Court of Kyiv
As for specialisation, I believe that this solution will be effective, and there are three components that I would like to outline why. The first is about quality, the second is about the balance of this whole justice architecture that we are talking about, and the third is about resources. What do I mean by balance? We are discussing what will be above the national level, or possibly within the national level - both the creation of hybrid tribunals between countries and with domestic elements with international elements. We are talking about the ICC as the top of this justice architecture, and it seems that in this aspect, the courts in the national dimension somehow fall out of this chain without this decision to specialise.We are living in the 11th year of war, but these decisions will not remain at the national level. This is not the face of one judge, one court, and the question is not how international partners will read these decisions. These decisions can also become future evidence, so the issue of quality is extremely important in these processes and in these court decisions.
And the issue of resources. We also have to talk about this, taking into account the geopolitics that are taking place today, so the introduction of judicial specialisation will definitely be a targeted, specific international assistance that is valuable for Ukraine, and it will save resources and time on both sides.
Volodymyr Yavorskyy, Program Director, Center for Civil Liberties
In Ukraine, political will often rests on figures. In my opinion, figures are very harmful for investigative bodies, because at some point they become a goal. In general, there are several components of a very important systematic policy for investigating crimes.
Proper legislation. The working group in the Prosecutor General's Office, unfortunately, is only warming up the engine... We are still talking about the need to change substantive legislation, and jurisdiction is a consequence of that. Because, basically, we do not have clearly defined corpus delicti, we will have a problem with jurisdiction.
Another is the system of investigative bodies, because again, we have not defined this as of today... there are problems with the jurisdiction of the National Police. The key problem that we have ahead of us, if we want to join the European Union, is the reform of the Security Service of Ukraine, which should be deprived of investigative functions altogether, because this is not an inherent function of a special intelligence service. We don't have this understanding, because on the contrary, we are concentrating even more proceedings in the Security Service of Ukraine.
I believe that we should have a single body for investigating these international crimes, either on the basis of the National Police or some other way, because without this we do not get a sustainable progressive result in the investigation of these crimes. And we should also have a system for finding guilty people and their assets abroad.
Alina Pavliuk, panel moderator, Coordinator of the Work of Lawyers, Analyst, Ukrainian Legal Advisory Group
After eleven years of ongoing armed conflict on the territory of Ukraine and three years since the full-scale invasion of Russia, Ukraine's domestic justice system has to cope not only with the already expected challenges in terms of investigative practices and the quality of legislation, but also with changes at the level of international justice and possible solutions to ensure sustainable peace.
ІІ Panel : Justice Architecture for Ukraine: International Realm
Since Russia’s full-scale invasion of Ukraine, international justice mechanisms and support from states worldwide have mobilised to address the rapidly growing number of serious crimes committed in the context of the armed conflict.
However, after 11 years of war, Ukraine’s justice architecture remains as fragile and unstable as before. Internal limitations within each element, along with the absence of a strategic approach, hinder their effectiveness, while geopolitical attacks and instability pose an existential threat to the international justice system as a whole.
The second panel sought to answer a critical question: Is there a way to ensure that Ukraine’s justice architecture is both effective and resilient to these challenges—especially as Ukraine enters the process of peace negotiations?
Key Takeaways from the Speakers:
Anya Neistat, Legal Director of the Docket, Clooney Foundation for Justice
Now is the right moment to pause and reflect on what we aim to achieve in the long term. This should be the foundation for decision-making when choosing the mechanisms in which to invest our efforts and resources.
It is essential to ensure that no crime goes undocumented while also addressing issues of reparations and compensation. Another approach is to acknowledge that, evidently, we cannot prosecute everyone, but it is critical to ensure that key perpetrators at various levels are held accountable.
We must define our next steps by leveraging the opportunities available here and now while maintaining a strategic focus on long-term objectives.
Eric Witte, Independent rule-of-law and international justice consultant, former Open Society Foundations, International Criminal Court, and Special Court for Sierra Leone, Author of “Options for Justice”
We must begin any discussion on new approaches by first defining their purpose. This is the primary question we should ask ourselves when designing new accountability mechanisms, as the answer will shape all subsequent steps.
Is our goal simply to initiate certain cases and prosecute specific individuals? Will this mechanism truly align with different jurisdictions, such as universal jurisdiction or the ICC? How does it relate to other elements of transitional justice? Is it about memorialisation or truth-telling? These considerations will determine all other aspects, including the structure of the mechanism, its location, contingency planning, and funding framework.
Under the current circumstances, another key issue is the fate of collected evidence. A key advantage of a hybrid approach is that it can provide a solution to this challenge. If documents are at risk, they can be temporarily relocated to a secure location and later returned.
(online)Irisa Čevra, Senior Fellow of the International Criminal Justice Initiative at the Georgetown University Law Center, former Head of the Legal Advisory Section of the Special Department for War Crimes of the Prosecutor's Office of Bosnia and Herzegovina.
Accountability and responsibility must never be questioned under any peace agreement. Ukraine must continue to collect and preserve high-quality evidence in accordance with international standards, drawing lessons from Bosnia’s experience. It is crucial to continue building strong institutions, particularly within the prosecutorial system, while also strengthening other capacities. A strategic approach to investigating and prosecuting such crimes, including systematic evidence collection, must be developed in a timely manner.
It is also essential to establish priorities, particularly regarding the timely consideration of transitional justice issues. In Bosnia, we faced significant challenges in legal reforms, and this experience should be taken into account.
I believe it is also important to emphasise the structures of the criminal and criminal procedural codes, which are critically needed in Ukraine. Fortunately, you have the support of the International Criminal Court, which can help ensure proper legal procedures, particularly in the field of precedent law. It is vital that ICC experts continue to share their knowledge with investigators, prosecutors, and judges according to their specific needs.
Nadia Volkova, Founder and Head of the Organisation, Ukrainian Legal Advisory Group
When 2022 came, it was not only a great tragedy but also, to some extent, created the illusion that the world was on our side. It seemed that knowledgeable people would soon step in and resolve everything for us.
However, today’s reality proves otherwise. That is why we must reflect on how events have unfolded and find a balance between independence and autonomy—because no one needs this as much as we do
Roman Romanov, Human Rights and Justice Program Director, International Renaissance Foundation
Without a doubt, we must remain open to various ideas and opportunities, as the situation is highly dynamic. At the same time, our core priorities must remain unchanged: a commitment to justice, the inadmissibility of impunity, and support for victims. Under all circumstances, they must receive signals of hope for justice and fairness from us.
Arie Mora, panel maderator, Advocacy and Communications Manager, Ukrainian Legal Advisory Group
A hybrid court is a potential option that could reshape the concept and approach to building Ukraine’s justice architecture. It would not necessarily replace existing mechanisms but rather complement them and even help restore the process of achieving justice, primarily for the national system.
We are currently witnessing how susceptible this system is to influence—both due to its limited capacities and political shifts. When considering how to prevent or at least mitigate such influence in the future, it is crucial to view the hybrid approach as one of the mechanisms that can provide greater flexibility to the system.
This approach would help make it more resilient in the face of challenges that come with changes and political upheavals.
We express our gratitude to all participants for their dedication to justice and their collective efforts in building an effective system of accountability for international crimes. A special thanks to the speakers for their expertise and willingness to share their knowledge, as well as to our event partners for their support in making this important initiative possible.
You can watch the full event at the following link: https://www.youtube.com/watch?v=_iRQoWefVLA
