Valerii Novykov on the difficulties of investigating and establishing committed war crimes and crimes against humanity in the context of the Donbas conflict

Valerii Novykov (Luhansk Oblast Human Rights Center “Alternativa”):

Over the years of the conflict in Donbas NGOs and international groups have collected a vast amount of evidence of international humanitarian law and human rights law violations but this is frequently not enough for speaking about the wholeness of establishment of certain international crimes. There are several issues which cause complications while investigating international crimes. The Ukrainian law enforcement bodies and judiciary were not prepared for aggression. A part of the law enforcement bodies has turned to the side opposing the Ukrainian armed forces. A part of courts has remained in the non-government-controlled area (NGCA), hence the access to the documentation was lost, the workload of the courts in the government-controlled area (GCA) has increased. Some of the judges working in the government-controlled areas have relatives and property in the non-government-controlled which makes them vulnerable. There are cases when judges were unlawfully detained after entering the non-government-controlled area. The investigating authorities don´t have access to the NGCA which prevents from conducting investigations, to enter a crime scene, to collect evidence. Since a part of the law enforcement bodies has defected to the side of the unlawful armed groups, the victims do not always trust them and do not file petitions. Often people prefer to share information with human rights organizations.

During 2014-2018 the conflict was defined by legislation as an anti-terroristic operation. After that a new term was established – joint forces operation. As a result, discrepancies in interpretation emerged leading to jurisprudential contradictions. The Ukrainian legislation has still not been harmonized with the international humanitarian law. Recently a draft law aimed at solving this issue was approved in the first reading. Nevertheless, it is currently impossible to bring to justice those, responsible for war crimes and crimes against humanity committed in the conflict zone, which in turn limits the capacity of the investigative bodies.

Another issue in the context of fighting impunity lies in the fact that defendants can escape from law enforcement bodies simply by escaping to the non-government-controlled territory. Since Ukraine doesn´t interact with Russia in such investigations, obtaining Russian citizenship becomes for this category of suspects another chance to escape punishment. As for those victims who live in the non-government-controlled territories, they cannot file complaints to the law enforcement bodies on the government-controlled territory, fearing the consequences for their own safety in ORDLO (Separate Raions of Donetsk and Luhansk Oblasts).

While the hot phase of the conflict in Ukraine still goes on, amnesty issues are perceived very acutely. Discussions on this topic are controversial, even within the human rights community. In western as well as in central and eastern Ukraine, the conflict has affected a lot of people whose relatives or friends were killed or injured. In the non-government-controlled areas, the situation is even more complicated due to the involvement of people in the system of illegal bodies. The so-called “DNR” and “LNR” invented a lot of ways to somehow “tie” people down. For example, in order to formalize the sale of property in the non-government-controlled territories, one is forced to obtain an “LNR passport”. Such a massive involvement of people into the system is intended to ensure that people have fears and are afraid of persecution in Ukraine. People are not ready to share information regarding the crimes committed in the non-government-controlled areas because they are not sure about their own future. Ukraine has no legislation that would give a clear signal to residents of the non-government-controlled areas about what is not a subject to prosecution. People working as doctors or teachers think that they will be prosecuted in Ukraine for working in the “LNR”. It is necessary to elaborate comprehensible legislation that clearly defines who has and who does not have to be brought to accountability. This will reduce fears and increase the chances of mutual understanding among the Ukrainians on the other side of the contact line.