Patterns of Sexual Violence in the Context of War in Ukraine and How to Respond | ULAG at the 2023 Missing Peace Global Symposium on CRSV
Taking into account the domestic context, more effective training, moving away from quantitative indicators as measure of success, as well as institutional and legislative framework development – crucial steps to effectively address CRSV in Ukraine.
Experts of the Ukrainian Legal Advisory Group took part in the Global Symposium on Conflict-Related Sexual Violence in Washington, DC. The symposium is organised by the U.S. Institute of Peace, Peace Research Institute of Oslo (PRIO), Washington University in St. Louis, and Women in International Security (WIIS). The goal is to bring together researchers, survivors, lawmakers, and law enforcement officials to discuss changes, achievements, needs, trends, and necessary steps to address conflict-related sexual violence in different countries. The first Global Symposium was held 10 years ago.
The panel discussion emphasised the patterns of sexual violence committed by the Russian army. Among them are ethnic-based motives for committing this crime, which are manifested, in particular, in the documented statements of Russian soldiers such as "I will rape you so that you no longer have the desire to give birth to new Ukrainians." The patterns also include direct orders and "unofficial" authorisation of sexual violence by Russian commanders. The Russian military commits these crimes against Ukrainian civilians as a way to demoralise the Ukrainian army. They also force victims to give “consent" to sexual violence against them.
The solutions proposed for the national system must necessarily take into account the national context of the events. The example of the Ukrainian justice system shows that the proposed solutions, both in terms of investigative approaches and systemic practices, respond exclusively to events after February 24, 2022, and reject the events of the armed conflict in Ukraine since 2014.
The training of participants in criminal proceedings on the basics of IHL and ICL remains a relevant factor that affects the quality of approaches to the investigation. In the context of investigating CRSV, investigators, prosecutors, judges and lawyers adopt the existing practice of investigating sexual violence as a general criminal offense and look through this prism at the qualification of such cases as war crimes.
In the case of Ukraine, the context of sexual violence through the prism of justice for the most serious international crimes has played a rather ambiguous role. On one hand, thanks to the influence of international experts, this category of crimes has become visible, and attention has begun to be paid to it and the hidden nature of such acts has been taken into account when recording alleged crimes. As a result, the achievement of the national justice system was the creation of a specialized department within the OGP system, within the structure of the so-called Department of War. But on the other hand, this approach in practice turned into a statistical summary and the focus of the entire law enforcement system shifted to figures that reflect the number of recorded cases of CRSV and the results of the work of the justice system.
It is important to clearly understand what exactly is considered a result when investigating such facts within the justice system. Over the past year and a half, the Ukrainian justice system has shown that the result of its work should be measured in terms of the number of proceedings brought to court and convictions. Such an approach puts a risk of not taking into account the opinion of victims and negatively affects the quality and efficiency of the processes. At present, this approach is actively used in Ukraine to consider cases in the absence of the accused (in absentia). On the one hand, this approach is provided for by national legislation and allows the justice system to show the results of its work. On the other hand, such processes may not reflect victims’ expectations of real justice, raise questions about their quality, and also consolidate a selective approach to perpetrators of crimes (for example, only the actions of direct perpetrators are investigated if they are identified).
In order for the developments currently being made by Ukraine to become an effective contribution to the international justice system and to form a sustainable national practice, comprehensive work is needed at various levels to implement international standards, including the following
A) Legislative - harmonisation of the current legislation with international standards, including criminal and criminal procedure legislation, as well as other related regulations, in particular, the rules on victim protection. In particular, the ratification of the Rome Statute of the ICC may become an incentive for such a comprehensive change;
B) Institutional - the national justice system will not be able to cope effectively with such an array of crimes. In any case, the facts of the CRSV will be considered in the context of other alleged violations of the laws and customs of war, and systemic developments should address common approaches to the investigation of all facts of the most serious international crimes to be effective in practice. The work of other mechanisms, such as the ICC or universal jurisdiction, will be able to cover only a small number of proceedings, so the main burden will remain on the national justice system. The most effective mechanism for strengthening its capacity may be a separate hybrid justice mechanism that will effectively combine international experience with the national system and strengthen the institutional capacity to investigate the relevant facts.