Response to Conflict-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. Opinions expressed in this post are the authors’ own.]

Every year, on the 19^th of June, the international community marks the International Day for the Elimination of Sexual Violence in Conflict. Sadly, despite this annual call, each anniversary serves less as an accounting of progress made, but rather as a reminder of how overwhelmingly far we remain from reaching that goal. The most recent report of the UN Secretary-General on conflict-related sexual violence, covering 2021, paints a devastating picture of the continuing use of sexual violence as a tactic of war, torture and terrorism. It lists 49 parties in 10 armed conflicts who are credibly suspected of committing or being responsible for conflict-related sexual violence. The report of the Special Representative of the Secretary General for Children and Armed Conflict, covering 2020, notes a 70% increase of sexual violence against children in armed conflicts in comparison with the year prior. Indeed, we are still very far.

One of the situations not addressed in either report, but which is likely to be addressed in the upcoming ones, is that of the armed conflict in Ukraine. Shortly after the start of the full-fledged Russian invasion of Ukraine on 24 February of this year, gruesome reports of sexual violence by Russian soldiers against civilians in temporarily occupied areas started to surface. Those horrific reports include various forms of sexual violence against women, men and children, committed in particular in residential areas and places where civilians were trying to shelter.

While the armed conflict in Ukraine has significantly escalated this year, it does in fact date back to 2014, as does the perpetration of conflict-related sexual violence. Comprehensive reports on conflict-related sexual violence in Ukraine prior to 2022 only began to appear in 2017-2018 (see here, here and here), though most incidents were committed at the start of the conflict in 2014 and 2015. The delay in reporting was due to various reasons: the trauma, fear and insecurity experienced by survivors coupled with a delay in or impossibility to access occupied or out of governmental control areas. Arguably, there has also been a delay in dedicating specific attention to, as well as limited expertise in working on, this type of victimisation.

While the International Criminal Court (ICC) is currently investigating alleged Rome Statute crimes committed in Ukraine since 21 November 2013, the primary responsibility for such investigations lies with Ukraine and Russia, given that the mandate of the ICC is complementary to those of national jurisdictions. More importantly, we argue that, while the various international justice initiatives at the ICC and through universal jurisdiction are to be applauded, the likelihood of swift justice from these efforts is low and the number of perpetrators who would be held accountable limited, leaving many direct perpetrators of conflict-related sexual violence outside of their reach. The likelihood of reparations to the untold number of victims is even less so. In our view, the preferable avenue for meaningful justice and reparations for Ukrainian victims of conflict-related sexual violence is through domestic legal systems, with the support and, as needed, pressure of the international community.

And so the question is: what steps should be taken to ensure that there is accountability and redress for victims of conflict-related sexual violence committed in Ukraine?

Neither Ukraine nor Russia is a State party to the ICC. They are however party to the four Geneva Conventions and their additional protocols which prohibit all forms of sexual violence in situations of international and non-international armed conflicts. Both Ukraine and Russia are obligated to prevent and address conflict-related sexual violence which could constitute violations of international humanitarian law (IHL), including by carrying out effective investigations into allegations of rape and sexual violence in the context of the armed conflict. International human rights law, which applies concurrently with IHL in situations of armed conflict, also carries obligations on states to prevent, punish, and repair violations.

Others have written about the culture of violence and impunity in Russian armed forces, including in peace time, and the constant commission of sexual violence in armed conflicts to which they were/are a party. Indeed, Russia’s record of impunity and disregard for human rights, evidenced most recently in its suspension from the Council of Europe, denouncement of the European Convention for Human Rights, non-compliance with the International Court of Justice’s provisional measures order, and suspension from the Human Rights Council, suggests that it will do none of that voluntarily. Here, however, the international community can play a role by, for example as recently argued by Luke Moffett, conditioning the lifting on sanctions on Russia’s payment of reparations or imposing a “reparations” tax on Russian oil and gas

Ukraine, on the other hand, has been taking steps towards enhancing its capacity for dealing with conflict-related crimes, including through the 2019 establishment of a war crimes  unit tasked with prosecuting conflict-related crimes. There have also been efforts to fully align Ukraine’s Criminal Code with international humanitarian and criminal law. The problem, however, is that the long-awaited Bill 2689 that would do just that, and which was passed by Verkhovna Rada, Ukraine’s Parliament, on 20 May 2021, has not yet been signed by the President. And therefore, has not come into effect.

In absence of this more helpful legal framework being in place, Ukraine is left with three provisions in its current criminal code that would permit the prosecution of CRSV as a conflict-related crime, and particularly by direct perpetrators. More problematically, the only article out of those three that would permit the prosecution of CRSV by Russian soldiers or armed groups (Article 438 on the violations of laws and customs of warfare) is a blanket article, i.e. it does not list underlying acts or definitions of crimes. Up to 2022, this article has not been much relied on for charging sexual violence. Even if it was, we argue that it is insufficient to investigate and prosecute conflict-related sexual violence as a war crime when there are grounds to believe it has been committed in a widespread and systematic manner. Only by President Zellensky signing Bill 2689 into law will Ukraine be able to examine sexual violence (and other crimes) as a crime against humanity, which would better reflect the scale of victimisation experienced by civilians. The bill would also enhance the prosecution of conflict-related sexual violence as war crimes.

Criminal justice, however, is not all that survivors of conflict-related sexual violence demand, particularly in light of the significant harms and life-long consequences that they have and continue to experience. International human rights law and international humanitarian law enshrine reparation as part of victims’ right to an effective remedy. While reparation is one of the elements of remedy that survivors demand the most, it is in fact one of the least prioritised or funded forms of remedy, particularly for victims of conflict-related sexual violence. In Ukraine, there has been no comprehensive state policy for remedy and reparation for the benefit of civilian victims and survivors affected by the conflict since 2014. In early April, however, Ukrainian President Volodymyr Zelenskyy convened an expert meeting on the creation of a special mechanism for the compensation of victims. Victims undoubtedly need compensation for the harms they have experienced. However, other forms of reparations are also needed, including rehabilitation, satisfaction and guarantees for non-recurrence, as emphasized in international guidance.

It is increasingly urgent that Ukraine acts on earlier calls and strategies for the establishment of a domestic administrative reparation programme for the benefit of victims of conflict-related crimes (see here, here). Sexual violence must be recognized as a category of conflict-related crimes and victims of sexual violence must be engaged at all stages of the design and development of any administrative programme, with particular attention paid to access issues that may inhibit victims of sexual violence from coming forward and participating. The Global Survivors Fund, along with Ukrainian partner organisations, will shortly be releasing a study, for which Amal Nassar was the lead author, on how Ukraine can improve its domestic laws to better provide reparations to victims of conflict-related sexual violence and ensure that any domestic administrative reparations programme are appropriately tailored to their unique needs, an issue that other countries have struggled with. The international community should provide technical and specialized assistance to Ukraine as needed to ensure that any domestic reparations programmes, whether the result of judicial proceedings or through an administrative process, will provide meaningful, concrete, and appropriate reparations to victims of conflict-related sexual violence.

Finally, outside of supporting Ukraine in its domestic efforts and increasing pressure on Russia to meet its international obligations, there is a critical need for the international community’s other efforts to address conflict-related sexual violence in Ukraine to proceed in a coordinated manner. Many actors are engaged in the documentation and investigation of conflict-related crimes. As these actors pursue their important and overlapping goals, efforts must be taken to ensure that sexual violence victims are not interviewed multiple times for these respective mandates, and that these processes are trauma-informed and gender-sensitive. Current efforts for coordination  (see here and here) should seek to implement the recently launched Murad Code, a global code of conduct distilling existing minimum standards to ensure information from survivors of conflict-related sexual violence is collected in a safe, effective, and ethical way.

As we mark the 19th of June this year, we are mindful that another year has passed in which the day’s stated aim, the elimination of sexual violence in conflict, remains unrealised. While we continue to work towards a day when sexual violence in conflict is eliminated and thus prevented from happening in the first place, those who we have failed to protect from the devastating harms of sexual violence must not be forgotten or left behind. But, they are owed more than acknowledgement of the crimes committed against them. They are owed justice and they are owed reparations.