Response to Battle-related Sexual Violence in Ukraine: Accountability and Reparations

[Erin Farrell Rosenberg is a Visiting Scholar with the Urban Morgan Institute for Human Rights and adjunct professor at the University of Cincinnati College of Law. She spent a decade working in international criminal law at the ICTY and ICC and now works as an independent legal consultant. Amal Nassar is a legal researcher and independent consultant currently working on the right to a remedy and reparation for survivors of conflict-related sexual violence. She previously worked with civil society and international organisations on international criminal justice issues, including on the documentation, legal analysis and accountability for sexual and gender-based crimes and crimes against or affecting children.]

Yearly, on the 19th
of June, the worldwide group marks the Worldwide Day for the
Elimination of Sexual Violence in Battle. Sadly, regardless of this annual name,
every anniversary serves much less as an accounting of progress made, however slightly as a
reminder of how overwhelmingly far we stay from reaching that objective. Probably the most
latest report of the UN Secretary-Common on
conflict-related sexual violence, overlaying 2021, paints a devastating image
of the persevering with use of sexual violence as a tactic of battle, torture and
terrorism. It lists 49 events in 10 armed conflicts who’re credibly suspected
of committing or being chargeable for conflict-related sexual violence. The report of the Particular Consultant of the
Secretary Common for Kids and Armed Battle, overlaying 2020, notes a 70%
enhance of sexual violence towards youngsters in armed conflicts as compared
with the yr prior. Certainly, we’re nonetheless very far.

One of many conditions
not addressed in both report, however which is prone to be addressed within the
upcoming ones, is that of the armed battle in Ukraine. Shortly after the
begin of the full-fledged Russian invasion of Ukraine on 24 February of this
yr, grotesque reports of sexual violence by Russian troopers
towards civilians in quickly occupied areas began to floor. These
horrific stories embody numerous types of sexual violence towards ladies, males
and youngsters, dedicated particularly in residential areas and locations the place
civilians had been attempting to shelter.

Whereas the armed
battle in Ukraine has considerably escalated this yr, it does actually date
again to 2014, as does the perpetration of conflict-related sexual violence.
Complete stories on conflict-related sexual violence in Ukraine previous to
2022 solely started to appear in 2017-2018 (see here, here and here), although most incidents had been dedicated at
the beginning of the battle in 2014 and 2015. The delay in reporting was because of numerous causes:
the trauma, worry and insecurity skilled by survivors coupled with a delay
in or impossibility to entry occupied or out of governmental management areas.
Arguably, there has additionally been a delay in dedicating particular consideration to, as
nicely as restricted experience in engaged on, such a victimisation.

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Whereas the
International Criminal Court (ICC) is currently investigating

alleged Rome Statute crimes dedicated in Ukraine since 21 November 2013, the
main duty for such investigations lies with Ukraine and Russia,
on condition that the mandate of the ICC is complementary to these of nationwide
jurisdictions. Extra importantly, we argue that, whereas the assorted worldwide
justice initiatives on the ICC and thru common jurisdiction are to be
applauded, the chance of swift justice from these efforts is low and the
variety of perpetrators who can be held accountable restricted, leaving many
direct perpetrators of conflict-related sexual violence outdoors of their attain.
The chance of reparations to the untold variety of victims is even much less so.
In our view, the preferable avenue for significant justice and reparations for
Ukrainian victims of conflict-related sexual violence is thru home authorized
techniques, with the assist and, as wanted, stress of the worldwide

And so the query
is: what steps needs to be taken to make sure that there may be accountability and
redress for victims of conflict-related sexual violence dedicated in Ukraine?

Neither Ukraine nor
Russia is a State celebration to the ICC. They’re nevertheless celebration to the 4 Geneva
Conventions and their further protocols which prohibit all types of sexual
violence in conditions of worldwide and non-international armed conflicts.
Each Ukraine and Russia are obligated to stop and handle conflict-related
sexual violence which might represent violations of worldwide humanitarian
legislation (IHL), together with by finishing up efficient investigations into allegations
of rape and sexual violence within the context of the armed battle. Worldwide
human rights legislation, which applies concurrently with IHL in conditions of armed
battle, additionally carries obligations on states to stop, punish, and restore

Others have written in regards to the tradition of
violence and impunity in Russian armed forces, together with in peace time, and the
fixed fee of sexual violence in armed conflicts to which they
had been/are a celebration. Certainly, Russia’s report of impunity and disrespect for human
rights, evidenced most just lately in its suspension from the Council of Europe, denouncement of
the European Convention for Human Rights
, non-compliance with the
Worldwide Court docket of Justice’s provisional measures order, and suspension
from the Human Rights Council, suggests that it’s going to do none of that
voluntarily. Right here, nevertheless, the worldwide group can play a job by, for
instance as recently argued by Luke Moffett, conditioning
the lifting on sanctions on Russia’s cost of reparations or imposing a
“reparations” tax on Russian oil and gasoline

Ukraine, on the opposite
hand, has been taking steps in the direction of enhancing its capability for coping with
conflict-related crimes, together with by way of the 2019 establishment of a war crimes  unit tasked with prosecuting conflict-related
crimes. There have additionally been efforts to completely align Ukraine’s Felony Code
with worldwide humanitarian and legal legislation. The issue, nevertheless, is that
the long-awaited Bill 2689 that will just do that, and which
was handed by Verkhovna Rada, Ukraine’s Parliament, on 20 Might 2021, has not but
been signed by the President. And due to this fact, has not come into impact.

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In absence of this
extra useful authorized framework being in place, Ukraine is left with three
provisions in its present legal code that will allow the prosecution of
CRSV as a conflict-related crime, and significantly by direct perpetrators. Extra
problematically, the one article out of these three that will allow the
prosecution of CRSV by Russian troopers or armed teams (Article 438 on the
violations of legal guidelines and customs of warfare) is a blanket article, i.e. it does
not checklist underlying acts or definitions of crimes. As much as 2022, this text has
not been a lot relied on for charging sexual violence. Even when it was, we argue
that it’s inadequate to analyze and prosecute conflict-related sexual
violence as a battle crime when there are grounds to consider it has been dedicated
in a widespread and systematic method. Solely by President Zellensky signing Invoice
2689 into legislation will Ukraine have the ability to study sexual violence (and different
crimes) as a criminal offense towards humanity, which might higher mirror the dimensions of
victimisation skilled by civilians. The invoice would additionally improve the
prosecution of conflict-related sexual violence as battle crimes.

Felony justice, nevertheless, shouldn’t be all that survivors of
conflict-related sexual violence demand, significantly in gentle of the
vital harms and life-long penalties that they’ve and proceed to
expertise. Worldwide human rights legislation and worldwide humanitarian legislation
enshrine reparation as a part of victims’ proper to an efficient treatment. Whereas reparation
is likely one of the parts of treatment that survivors demand probably the most, it’s actually
one of many least prioritised or funded types of treatment, significantly for
victims of conflict-related sexual violence. In Ukraine, there was no
complete state coverage for treatment and reparation for the advantage of
civilian victims and survivors affected by the battle since 2014. In early
April, nevertheless, Ukrainian President Volodymyr Zelenskyy convened an expert meeting on the creation of
a particular mechanism for the compensation of victims. Victims undoubtedly want
compensation for the harms they’ve skilled. Nevertheless, different types of
reparations are additionally wanted, together with rehabilitation, satisfaction and
ensures for non-recurrence, as emphasised in international guidance.

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It’s more and more pressing that Ukraine acts on earlier calls and
methods for the institution of a home administrative reparation
programme for the advantage of victims of conflict-related crimes (see here, here). Sexual violence should be acknowledged as a
class of conflict-related crimes and victims of sexual violence should be
engaged in any respect levels of the design and improvement of any administrative
programme, with explicit consideration paid to entry points which will inhibit
victims of sexual violence from coming ahead and taking part. The International
Survivors Fund, together with Ukrainian accomplice organisations, will shortly be
releasing a research, for which Amal Nassar was the lead writer, on how Ukraine
can enhance its home legal guidelines to higher present reparations to victims of
conflict-related sexual violence and make sure that any home administrative
reparations programme are appropriately tailor-made to their distinctive wants, an
concern that other countries have struggled with. The
worldwide group ought to present technical and specialised help to
Ukraine as wanted to make sure that any home reparations programmes, whether or not
the results of judicial proceedings or by way of an administrative course of, will
present significant, concrete, and applicable reparations to victims of
conflict-related sexual violence.

Lastly, outdoors of
supporting Ukraine in its home efforts and growing stress on Russia to
meet its worldwide obligations, there’s a essential want for the
worldwide group’s different efforts to deal with conflict-related sexual
violence in Ukraine to proceed in a coordinated method. Many actors are engaged
within the documentation and investigation of conflict-related crimes. As these
actors pursue their vital and overlapping targets, efforts should be taken to
make sure that sexual violence victims are usually not interviewed a number of instances for
these respective mandates, and that these processes are trauma-informed and
gender-sensitive. Present efforts for coordination  (see here and here) ought to search to implement the just lately
launched Murad Code,
a worldwide code of conduct distilling current minimal requirements to make sure
data from survivors of conflict-related sexual violence is collected in
a protected, efficient, and moral approach.

As we mark the nineteenth of
June this yr, we’re conscious that one other yr has handed by which the day’s
said goal, the elimination of sexual
violence in battle, stays unrealised. Whereas we proceed to work in the direction of a
day when sexual violence in battle is eradicated and thus prevented from
taking place within the first place, those that we now have failed to guard from the
devastating harms of sexual violence should not be forgotten or left behind. However,
they’re owed greater than acknowledgement of the crimes dedicated towards them.
They’re owed justice and they’re owed reparations.

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