Defending the rule of law in Ukraine

The government of Ukraine needs to do more to bring local human rights defenders into the process of bringing peace and justice to their troubled, divided country, even if the International Criminal Court (ICC) is allowed to take on an extended role of its own there.

This appeal by a diverse group of 14 local human rights organisations gathered by the Centre for Civic Liberties, and Human Rights Houses in Kyiv and Chernigov has won wide support from more than 60 like-minded NGOs from across the region, including human rights defenders in Russia and Western Europe, and other post-Soviet states such as Azerbaijan, Georgia, Armenia and Belarus.

They have jointly written to President Petro Poroshenko asking him to extend the ICC’s current mission to investigate rights violations during the fall of the previous regime, so that it takes into account recent incidents in Crimea and Eastern Ukraine as well.

Ukraine still needs to ratify its signature to the 1998 Rome Statutes establishing the ICC. Until then the Court must be formally asked to add the incidents in the East and the Crimea to its work load or Ukraine can adopt a draft law (#4081a) of its own to the same effect.

Ukraine’s judicial system currently lacks the expertise, independence and resources to carry out the investigations on its own without the ICC and the assistance of civil society, warn the signatories to the June 26 letter, all members or partners of the Human Rights House Network.

The ICC was created to investigate crimes when a national criminal justice system is unwilling or unable to prosecute individuals responsible for crimes against humanity.

“Legal reforms are needed to bring about systemic change in Ukraine’s law enforcement agencies, beginning with new principles for establishing enforcement agencies, and including full accountability and independent performance evaluation,” says Vadym Pyvovarov, Executive Director of the Association of Ukrainian Human Rights Monitors on Law Enforcement.

Ukraine needs to bear a greater responsibility for guaranteeing the freedom of human rights NGOs, journalists and other independent media, especially by fully investigating incidents of intimidation, harassment, violence, arbitrary detentions or abductions involving them.

In the meantime though, the extended contribution of the ICC and civil society will help guarantee that investigations into crimes committed by all parties in Ukraine, including law enforcement and State agents, are credible, transparent and fully capable of bringing those responsible to justice.

But while the involvement of the ICC will provide an independent judicial foundation to the process of bringing peace and justice back to Ukraine, it will not be a swift process, even if, as expected, Russia puts up no objections to the extended mandate.

Moscow has put its weight behind an ICC investigation into its 2008 war with Georgia. Russia asserts that it had both cause and authority to use force to defend Russian minorities in South Ossetia and Abkhazia. Its emerging position with regard to the ICC in Ukraine is likely to echo that investigation.

Already scores of pro-Russian groups have began collecting what they say is evidence of human rights abuses by pro-Kiev authorities in eastern Ukraine. Russian Investigative Committee spokesman Vladimir Markin said Saturday that so far 1,000 affidavits had had been collected from refugees from Ukraine to forward to the ICC, and that many more were coming.

This has led some observers such as Mark Kersten, a London School of Economics researcher and author of the blog Justice in Conflict, to speculate that Russia may try — as has happened in other ICC investigations — to shape the prosecution’s focus by swamping the court with evidence under the guise of cooperation.

This would be a test of the ICC’s independence to resist such pressure, and equally, a test of the professionalism and independence of civil society groups that contribute to the ICC investigation. Either way it will be a long haul.

The ICC preliminary investigation in Ukraine began last April; its investigation in Georgia began six years ago and is still just that, preliminary. “Some situations, like the war in Afghanistan or the conflict in Colombia, have toiled for years in the judicial purgatory that is the ICC’s preliminary investigation list,” notes Kersten.

But the ICC’s contribution, though important as a benchmark of judicial authority, is only one aspect of the changes required in Ukraine, say the Human Rights House groups. No country can build a sustainable future without full inclusion of civil society in decision making, as stated by UN Human Rights Council resolution 22/6 of March 2013.

“The reform process, indeed all dialogue on the future of the country, should be inclusive and transparent to all,” said Ane Tusvik Bonde, Regional Manager for Eastern Europe and Caucasus at the Human Rights House Foundation in Oslo. “Ukraine needs to recognise the legitimate role of human rights defenders in the promotion of democracy and the rule of law.”

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