“It is important that we not only defeat great Russia but also not become little Russia.” What 2022 was like for human rights defenders (and what legal problems they discovered)

The full-scale invasion not only accelerated the integration of European legal processes in Ukraine but also highlighted many anti-democratic actions of the authorities and the General Staff. Zaborona journalist Polina Vernyhor spoke with Ukrainian human rights defenders about what has changed this year, the horizons of which problems have already been outlined (and what awaits us next year) — from the impossibility of investigating all war crimes to the lack of a clear attitude towards residents of the occupied territories and LGBTQ people.

The full-scale invasion triggered a 2014 war crimes investigation (which was largely ignored)

Ukrainian and international human rights organizations have been documenting war crimes since 2014. Since February 24 this year, the prosecutor’s office has collected data on almost 40,000 cases of violations of international law in the field of human rights protection: torture, physical and sexual violence, and deprivation of liberty.

“The most important thing in human rights protection this year is the total synergy of documenting war crimes between people who can do it expertly and professionally. The systems of the prosecutor’s office, the police, the SBU invested much less expertly in it and now need this support, and the population that became victims or witnesses,” says executive director of the Center for Civil Liberties Romantsova.

According to Alyona Lunyova, manager of advocacy at the human rights organization “Change,” the war gave a tangible impetus to protecting the rights of war victims.

“This issue is not to be hushed up but put on hold because the number of victims was relatively small. But the occupation of almost a fifth of the territory of Ukraine accelerated certain processes. There is progress in issuing documents to persons from the occupied territories who were not documented by passports of citizens of Ukraine; there is progress in the administrative procedures for establishing the facts of birth, death, conclusion, and dissolution of marriage in the occupied territories,” says a human rights activist to Zaborona.

Ukraine is not ready to investigate so many war crimes (but is working on it)

At the beginning of the war in 2014, law enforcement agencies and the judicial system were not ready to investigate war crimes. They were investigated under articles on intentional murder, illegal arms trafficking, and kidnapping — according to procedures that are not applied to military conflicts in international practice. According to executive director at the Truth Hounds Roman Avramenko, the situation has changed, and Ukraine has begun to adopt foreign legal practices.

“Now there is a so-called Prosecutor General’s Office war department,” Avramenko tells Zaborona. “There are trained prosecutors of the Luhansk and Donetsk regions who understand the investigation of war crimes. There are investigators of specially created units of the police and the prosecutor’s office in various countries [working in Ukraine]. Many people on the ground can collect evidence, visit crime scenes, film, and collect material. There are currently approximately 19,000 investigators in Ukraine, but, of course, not all of them will investigate war crimes.”

Over the past eight years, the justice system has proven ineffective: not a single court decision has been passed on war crimes, neither in Ukraine nor at the International Criminal Court. One of the few positive factors: the amount of collected evidence of the commission of international crimes, stimulated the investigation of Russian aggression on Ukraine’s territory in the ISS after the full-scale invasion.

“Ukraine is a highly technological country with a high percentage of Internet coverage, where every second person has a smartphone with a camera. In most active wars on the planet, the documentation of war crimes does not happen at such a fast pace [as in Ukraine], says the executive director of the Center for Civil Liberties, Oleksandra Romantsova. “Under the guise of reconstruction in occupied Mariupol, they are destroying the part of the drama theater where it is possible to investigate what was fired [at the building] on March 16. Late: everything is recorded, there is an investigation, and experts have found everything. Documenting is a resistance to technical efforts to hide the consequences of war crimes.”

Alyona Lunyova is convinced that justice can exclude the direct conviction of the guilty in individual cases. Clarifying the historical truth about the events of the Russian-Ukrainian war, in her opinion, is more critical than imprisoning rank-and-file executors of orders.

“Actually, this finding out what happened to the victims is for history, for the victims,” says the human rights activist. “The idea is this: in exchange for a reduced sentence or amnesty, the accused must tell everything that happened to the person who was killed or disappeared [a similar practice was first used in South Africa after the dismantling of apartheid].”

At the same time, Lunyova is convinced that identifying all those involved is one of the priority tasks in this process. Right now, both human rights organizations and journalists investigating specific cases based on open data sources are working on this.

“Will the guilty be brought to justice? Let’s imagine that they are dead: is it important to establish that these individuals tortured and killed people in Bucha? Importantly. For the victims, for the family members of the murdered, Lunyova says. “When it comes to committing mass war crimes, not all criminals will go to prison: some will not live to the end of the war, and some will hide. But it is possible that even after 50 years, they will be brought to justice — as now the workers of the German concentration camps, who are already 90 years old, are being tried.”

Documenting these crimes is already bringing Ukraine closer to the historical truth. It will take not one or two years. However, a process of this scale can change not only the Ukrainian justice system but also the international one.

“In the future, it is possible to establish peace only with an international system of justice and prevention of [modern] wars. The current system needs to be updated and used to react to other forms of conflict — those that existed in the first half of the 20th century. The nature of war has changed: it has become hybrid, informational, and economical,” says Olexandra Romantsova to Zaborona. “For example, we need to write into international humanitarian law how to condemn Skabeeva and Solovyov while not violating the principle of freedom of speech.”

According to Alyona Lunyova, the International Criminal Court will consider, according to the most optimistic forecasts, up to 20 of the most challenging cases. The rest of the crimes will fall to the national law enforcement system.

“There is a big risk that the justice system will simply choke in the final stages. No law enforcement system can cope with such a volume of criminal proceedings, so next year it is necessary to strengthen the national judicial system, the national law enforcement system,” she emphasizes.

One of the important shortcomings of Ukrainian legislation as of December 2022 is the absence of a definition of the term “war crime.” War crimes and crimes against humanity are specific types of offenses. According to the Rome Statute, such crimes do not have a statute of limitations, and the punishment for them is more severe than murder or kidnapping.

In recent years, human rights activists have pushed through several bills that could remedy the situation. On May 20, 2021, the Verkhovna Rada adopted draft law No. 2689, which was supposed to adapt Ukrainian legislation to the norms of international criminal and humanitarian law regarding prosecution for war crimes (however, the president did not sign it).

There is already an article in the Criminal Code of Ukraine under which war criminals can be tried now. However, its functionality is quite limited and needs clarification.

“Our state needs to have the Rome Statute or at least legislation harmonized with international criminal law because now almost everyone who commits war crimes is prosecuted under one article,” says Lunyova. “We need changes that will allow us to separate the types of crimes, to be able to describe them so that any investigator at any level can read the law and understand that, for example, deportation is a war crime.”

“Solving [the problems with criminal law in Ukraine] depends on the persistence of civil society to convince the people who make the decisions that this is one of those issues that cannot be postponed, that it matters both in the short term and in the long term,” believes the head of the Center for Civil Liberties and one of the laureates of the 2022 Nobel Prize Oleksandra Matviychuk.

Ukraine simplified the adoption of laws. And no, it’s not always good. Here are some examples

The process of passing laws has been simplified, which, according to Alyona Lunyova, harms the level of freedom.

“We lack the participation of civil society in the discussion of law-making and legislative initiatives. Several draft laws were passed at the beginning of the full-scale war, which were not very useful. For example, the law on collaborative activities, to put it mildly, could have been written better because the freedom of many people depends on it. These are responsible, serious laws that cannot be adopted at the very first reading, bypassing the procedure,” the human rights activist believes.

On December 13, the Verkhovna Rada adopted another, in the opinion of human rights defenders, ineffective law on strengthening the responsibility of the military for desertion. Both human rights defenders and military personnel themselves criticized it.

“Strengthening the responsibility of servicemen in this way is the way to the possible transformation of our army into the army of the Russian Federation. [Commander-in-Chief of the Armed Forces of Ukraine Valery] Zaluzhnyi recorded a video asking the president to sign this law, Lunyova says. “There are actors in Ukraine who are not very democratic by nature. The armed forces and the army are not democratic institutions. We understand when the palm of primacy in decision-making belongs to the General Staff, but we must realize that the rule of law must prevail even in such cases.”

However, she believes the society’s reaction to the three draft laws that were adopted at the last sessions of the Verkhovna Rada (on the selection of judges to the Constitutional Court, on construction, and the obligations of military personnel) and two petitions regarding their cancellation, show that society understands where the state is overstepping the bounds.

The rights of LGBTQ people and national minorities have become more discussed. But this is not enough

This year, many Ukrainian men and women are defending the country on various fronts, and the LGBTQ community is no exception. The war made LGBTQ people more visible.

“Many LGBT people who went to fight started coming out. The audience that saw it understood: these are real people, thus destroying their stereotypes, says Kostyantyn Andriyev, human rights defender of the Zaporizhia Foundation “Gender Zed.” “I think next year there will be a new wave of coming outs of defenders. It shows like nothing else that LGBT people everywhere and on an equal footing with everyone else are taking up arms.”

The participation of the LGBTQ community in the war led to the appearance of a petition on the legalization of same-sex marriage (it received the required number of votes) and the normalization of certain rights and laws because LGBTQ people do not have the same preferences as heterosexual people (for example, a partner cannot bury the body loved one). In response to the petition, Volodymyr Zelensky called on the government to develop a draft law on legalizing civil partnerships — an inferior alternative to marriage.

“There is a debate among LGBT activists, how to consider this: a step forward or a step back? Which is better: same-sex marriage or civil partnerships? But with the course taken by the Office of the President of Ukraine, we should at best count on civil partnerships and another step towards legalizing same-sex marriages in the future,” Andriyev believes.

Anna Sharygina is one of the opponents of civil partnerships as an alternative to marriage. She believes that instead of trying to create a conditional compromise for international partners, the state should provide equal rights and equal access to the LGBTQ community to the institution of marriage that already exists.

“Nowadays, there is little talk about hate crimes, discrimination, and sexist statements. Many people believe that it is not on time. It is not about human rights now because you have to focus on survival. I cannot agree with that,” says Sharygina.

The ratification of the Istanbul Convention and adoption of the Law on National Minorities and Communities in Ukraine were essential steps towards improving the rights of communities and certain social groups of European integration.

“The ratification of the Istanbul Convention, in my opinion, is more a symbol than concrete norms,” says Lunyova. “We have a law prohibiting discrimination and responsibility for domestic violence. However, it is symbolic that it was ratified. Regarding specific changes, I read that they are currently developing a plan regarding the law, regulations, and actions that are needed to implement the ratified Istanbul Convention.”

“Most feminist organizations say that no steps have been taken to implement the Istanbul Convention,” says Anna Sharygina, co-founder of the Kharkiv lesbian feminist organization “Sphere.” “The process is moving forward with difficulty because men make most of the decisions in the places where the Istanbul Convention is to be implemented. So it’s very difficult to make an impact if you don’t have it.”

“We do not have the luxury to stop on the path of reforms and democratic modernization, to focus exclusively on defense precisely because this war has a value dimension. And this is not a war between two countries but between two systems,” says Oleksandra Matviychuk. “This year, Ukraine acquired the status of a candidate for EU membership and, even despite the war, must demonstrate success in implementing the recommendations. We need to strengthen and change to defeat Russia and build stable democratic institutions.”

The government has no plan for the reintegration of the occupied territories

In mid-summer, the Minister of Reintegration of the Temporarily Occupied Territories, Iryna Vereshchuk, said that the parliament is talking about the possibility of criminalizing the acquisition of Russian passports on the territory of Ukraine.

This news caused a flurry of emotions — both among human rights defenders and people who fled the occupation and know from their own experience that the passporting of the population is, in many cases, forced. A similar draft law on criminal prosecution was passed, but liability is provided only for officials.

However, the fact that this discussion became possible at the ministry level makes it clear: there needs to be a clear strategy for determining which legal field the citizens of the de-occupied territories will be in.

“The legislation on criminalizing collaborative activity came into force on March 15, 2022. All the last time, there was no such responsibility for the residents of the occupied territories of Donetsk and Luhansk regions and Crimea. [Information on the status] of educators, employees of state authorities of any level and position was not specified. After March 15, all of them automatically became criminals, says Alyona Lunyova. “The Ukrainian legal system cannot cope with such a large number of criminal sentences. It means there is a need to prioritize and amnesty others — or change the law. It is important for the reintegration of the regions.”

Currently, Ukraine does not clearly understand how exactly to reintegrate the de-occupied territories. No legislation would give an idea of what this process will be like, and that would take into account all the nuances of different regions.

“We need to have a vision of what will happen to the documents issued in the occupied territories and the property rights acquired in the occupied territories,” adds Lunyova. “The issue of Crimea’s reintegration into the same legal space is much more difficult than the occupied part of the Zaporizhia or Kherson regions because eight months and eight years of occupation are radically different situations.”