Memorandum on shared guiding principles on accountability for grave crimes committed in Ukraine

Representing a wide community of Ukrainian civil society organisations and initiatives that provide support to victims, document international crimes, and conduct outreach and educational activities in the context of Russia’s war of aggression against Ukraine, we have come to a consensus on the following.

The greatest aspiration of the Ukrainian people is to achieve sustainable peace. Recognising all the efforts to realise Ukraine’s right to self-defence and to gain the necessary international security guarantees for the future, we emphasise that, given the scale of the damage suffered by the Ukrainian people, peace can only be achieved if based on the rule of law and justice. Integral components of the latter include bringing those responsible for grave international crimes to justice, as well as compensation for loss and suffering to the victims of those crimes. The accountability process must be independent, impartial and fair. This is not only Ukraine’s responsibility but also that of the entire international community.

At the same time, Ukraine must also act not only in its own interests as a state that has become a victim of aggression by one of the world’s nuclear-weapon states, but also be a responsible actor in diplomatic efforts to strengthen, not weaken, the system of international security, peace and justice.

The adoption of the Rome Statute and the establishment of the permanent International Criminal Court (ICC) was a significant step towards ending impunity for the world’s most serious crimes. Unfortunately, not all UN member states supported the creation of the ICC, with the majority of permanent members of the UN Security Council remaining on the sidelines. This undermines faith in the rule of law, as well as the general commitment to ensuring peace and justice in the world.

We consider the adoption of the Rome Statute and the establishment of the ICC a civilisational breakthrough and believe that all further actions to ensure accountability for international crimes during Russia’s war against Ukraine should develop and strengthen the system of international criminal justice based on the Rome Statute and the ICC.

With this realisation, we believe it is necessary to consolidate efforts to support the following:

1. Ukraine should immediately ratify the Rome Statute, including all the amendments, and ensure its implementation into national legislation.
2. The International Criminal Court must be consistently provided with sufficient resources to consider all situations and speed up investigations. This is the responsibility of each state party to the Rome Statute.
3. Recognising the complementary nature of the ICC’s jurisdiction and limited resources, we welcome the priorities currently identified for investigation in the Ukraine situation. They point quite unequivocally to the involvement of the top leadership of the Russian Federation in the commission of such crimes. Ukrainian civil society organisations have made efforts to collect and share information about these particular crimes and the alleged perpetrators.
4. Russia’s attack on Ukraine and resulting crimes date back to 2014. Since then, Ukrainian civil society organisations have submitted dozens of reports to the Office of the Prosecutor of the ICC, which have been used during the preparation of the preliminary examination reports. We insist that the conclusions of these submissions also be taken into account, and that the cases investigated by the ICC not be limited to the events of post-February 24, 2022.
5. Given the nature of the war, the declared intentions and subsequent actions aimed at destroying the existence of the Ukrainian state, denying its right to independent existence and seeking to alter Ukrainian identity, we support the need to hold the top political leadership of the Russian Federation (including persons protected by immunities) accountable for committing an obvious crime of aggression. The best solution for this would be to immediately revise the so-called “Kampala compromise”, amend the Rome Statute and enable the ICC to investigate the crime of aggression. We recognize that this process may be lengthy and require the resolution of complex legal issues. Therefore, most likely, this is not the optimal solution when it comes to prosecution of the crime of aggression in the context of the Russian Federation’s war against Ukraine. Therefore, we support the need to create an ad hoc mechanism, but we believe that its creation should take place with Ukraine’s simultaneous ratification of the Rome Statute of the ICC and its full participation in the revision of the Kampala amendments, that defines responsibility for the crime of aggression. Ukraine should recognise the efforts and existing international experience in prosecuting the most serious crimes, and facilitate them, thereby gaining support and consolidating the international community, rather than increasing doubts about the impartiality and objectivity of the decisions related to accountability for the crime of aggression.
6. Ensuring justice for grave crimes is based on the cooperation of states, which includes, inter alia, the sharing of information beneficial for effective prosecution and the execution of arrest warrants. In this context, it is important to support and encourage further cooperation between the United States and the ICC. States parties to the Rome Statute system must steadfastly fulfil their obligations. Unity must be achieved in the realisation that accountability for international crimes should extend to all those involved, regardless of their nationality, when it comes to crimes committed in the territory under the ICC’s territorial jurisdiction.
7. Taking into account that Russia’s war against Ukraine is the most large-scale and destructive conflict on the European continent since the two world wars, as well as the active support of the European Union and the Council of Europe for Ukraine since the full-scale invasion, we believe that they should take on a leading role in addressing financial and organisational needs related to delivering justice for grave international crimes.
8. Given the precedential value and importance of the European Court of Human Rights (ECtHR) judgments in the architecture of justice in the context of Ukraine for Ukraine’s national courts and international institutions such as the ICC, UN committees, etc., the ECtHR should make efforts to consider both interstate and thousands of individual cases related to Russia’s war against Ukraine since 2014 without further protracted delays. The Council of Europe’s efforts to increase the effectiveness of the implementation of the ECtHR judgments, in particular in cases where the Russian Federation is a respondent, should be supported.
9. We welcome the joint actions of many EU countries that have opened investigations under their national legislation under the universal jurisdiction mechanism. However, given the limited experience and capacity of some of these states in ensuring accountability for grave crimes, we hope for effective coordination by Eurojust and the involvement of states more experienced in applying universal jurisdiction in order to increase the capacity of Joint Investigation Team (JIT) member states. At the same time, Ukrainian civil society organizations stand ready to share any useful information through the EU Genocide Network.
10. Ukraine, in active cooperation with international partners and institutions, should properly ensure the interests of victims of international crimes, which, in addition to appropriate mechanisms of compensation, should include bringing to justice those responsible and guarantees of non-recurrence.
11. In 2014, Ukraine’s national justice system faced an extremely complex and large-scale challenge to deliver justice for the most serious crimes. The full-scale invasion of February 24, 2022 had a devastating effect on the capacity of the entire law enforcement system. Despite important, but not very systematic, efforts by the authorities, the existing institutional and legislative framework for the proper administration of justice for international crimes is insufficient. Without the ratification of the Rome Statute and the harmonisation of national criminal legislation, national authorities are limited in their capacity. The definitions of international crimes, currently contained in domestic legislation differ from those contained in the Rome Statute, which may lead to the establishment of approaches to the classification of crimes and standards of proof at odds with international practice. This may call into question the legitimacy of decisions of the Ukrainian legal system, ultimately aligning it with the level of justice in the aggressor state, which systematically ignores the principles and standards of international humanitarian and criminal law. The lack of specialisation in the judicial system as an accountability mechanism for crimes committed in armed conflict leads to ineffective results. It is necessary to create conditions under which all relevant standards, such as independence, impartiality, and equality of arms, can be ensured. This is the kind of justice that is in demand by the people of Ukraine, including victims of the most serious crimes.
12. We believe that the proper response to these challenges is to create specialisation of the national legal system at all levels: investigation, prosecution and judiciary. Its capacity should be built through the continuous and systematic engagement of international justice and accountability practitioners, who would be granted relevant procedural status, as well as international technical support on a regular basis. The European Union has the appropriate experience in the development of mixed justice and accountability mechanisms, and Ukraine’s status as an EU candidate only strengthens the arguments in favour of the importance of such cooperation. We are convinced that the investigation and prosecution of international crimes requires the creation of sustainable, permanent specialised institutions, as it is clear that such challenges cannot be overcome by temporary, ad-hoc measures. Given the scale of the crimes committed and the damage caused, quasi-judicial mechanisms such as Truth Commissions should become additional elements of the overall justice ecosystem.

Documenting conflict-related crimes, investigating them, searching for and prosecuting alleged perpetrators for the rest of their lives, and bringing them to justice is a matter of national dignity. There must be no statute of limitations, no exceptions, and no political compromises on the matter. Achieving such goals may take a long time and resources, but it is a long-term strategy that can yield a sustainable result – the non-recurrence of the horrors of this war and life with faith in justice.

Ukraine and its civil society are within their right to expect further support from the international community. At the same time, all actions and decisions aimed at bringing perpetrators of international crimes to justice and helping the victims of war should not compete with the needs of other situation countries. We express our solidarity with the victims of other armed conflicts around the world.

For the first time in many years, justice and accountability have become the centre of the world’s focus and attention in respect of the Russian war against Ukraine. For Ukraine it is an opportunity to demonstrate that solidarity with the victims of international crimes is not constrained by geographical or administrative borders; that this is a chance to reconsider and reshape global human values in respect of, inter alia, justice and accountability. That is why Ukraine must be at the forefront of developing an effective global architecture of justice, which victims from every situation deserve, while the global consolidated voice of civil society must become a catalyst in this process.

Signed by:

Advocacy Advisory Panel

Association UMDPL

Center for Civil Liberties

Сentre of Civil Education “Almenda”

Civil Network OPORA

Crimean Human Rights Group

DEJURE Foundation

Educational Human Rights House – Chernihiv

FREE ZONE

Helsinki Foundation for Human Rights

Human Rights Center “Diya”

Human Rights Center ZMINA

Human Rights Platform

Institute of Mass Media

Institute for Peace and Common Ground

Kharkiv Anti-Corruption Center

Kharkiv Human Rights Group

Media Initiative for Human Rights

Postupovyy gurt frankivtsiv

Regional Center for Human Rights

Social Action Center

Support of Fundamental Research Fund

Truth Hounds

Ukraine 5 AM Civil Society Coalition

Ukraine Without Torture

Ukrainian Helsinki Human Rights Union

Ukrainian Healthcare Center

Ukrainian Legal Advisory Group