Project context

Following the full-scale Russian invasion of Ukraine in February 2022, Women’s Initiatives worked with Ukrainian partners to support accountability initiatives for sexual and gender-based violence (SGBV) related to the invasion. At the request of Ukrainian NGO partner Ukrainian Legal Advisory Group (ULAG), WIGJ conducted an interactive online training series on conflict-related sexual violence (CRSV) between May and August 2022.

Topics included understanding pre-existing patterns of discrimination and violence; methodologies to safely interact with survivors; understanding different criminal justice mechanism jurisdictions; what makes acts of sexual violence international crimes; and the need for context-based investigations. The trainings were based on the premise that conflict-related sexual violence differs from domestic and other instances of sexual violence. Police officers, investigators, judges, NGOs and other actors may have knowledge on how to handle sexual violence in peacetime. However, prosecuting conflict-related sexual violence and especially engaging with survivors of such violence, needs a different set of skills and expertise.

Due to the scale of the ongoing invasion and related violence, a vast number of reports of conflict related sexual violence are emerging.[1] Given the general tendency to underreport crimes of sexual violence, and in the case of Ukraine, the persistence of harmful stereotypes that further discourages survivors to report,[2] it can be expected that many more reports will follow, even months or years after the occurrence of the crimes. While – in time – international courts will look at those most responsible for these crimes (commanders and political leaders), the majority of CRSV cases will need to be processed by national courts. Amid the violence, grave day-to-day security issues for Ukrainian practitioners, and the widespread documentation of crimes, it is imperative that the work of national practitioners is bolstered by international best practices on how to engage with conflict-related sexual violence.

During our training session over the course of Summer 2022, Ukrainian lawyers clearly stated their need and wish to receive sustained training and in-depth support on how to integrate international standards on CRSV in their respective work. Ukraine does not have the infrastructure or expertise to address conflict-related sexual violence as an “international crime” (war crime, crime against humanity and/or genocide).

[1] UN, ‘Reports of sexual violence in Ukraine rising fast, Security Council hears’, 6 June 2022.

[2] Global Survivors Fund, ‘Ukraine Study on the Status and Opportunities for Reparations for Survivors of Conflict-Related Sexual’, May 2022, p. 20.

Current activities

In 2023, our work in Ukraine will be along three main pillars:

1. Training of Ukrainian trainers on improved access to justice for survivors of conflict-related sexual violence in Ukraine, for sustained knowledge sharing between Ukrainian legal practitioners;
2. A mentoring program between international justice experts and Ukrainian lawyers in national CRSV cases; and
3. Developing practical advocacy strategies and tools for and with our Ukrainian NGO colleagues to incorporate international standards into the interpretation of the Ukrainian Criminal and Criminal Procedure Codes; amending Ukraine’s laws to integrate international obligations; and addressing misunderstanding of sexual violence.

Mentoring

Please find below a list of resources useful for all practitioners engaged in accountability for CRSV in Ukraine.

A. International Instruments

• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), ETS No.005, Opened for signature 4 November 1950 entry into force 3 September 1953 (‘ECHR’).
• Council of Europe (CoE), Convention on Preventing and Combating Violence against Women and Domestic Violence(‘Istanbul Convention’).
• Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 12 August 1949 (‘Fourth Geneva Convention’).
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (‘Additional Protocol I’).
• Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2001) 2187 UNTS 3 (‘Rome Statute’).
• UN Security Council, Resolution 827: Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993 last amended 9 July 2009) S/RES/827 (‘ICTY Statute’), Article 5(a);
• UN Security Council, Resolution 955: Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of  Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994 (8 November 1994 last amended 14 August 2002) S/RES/955 (‘ICTR Statute’)

B. International Organisation Documents

• Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), ‘General Recommendation No. 35 on Gender-Based Violence Against Women’ (26 July 2017) UN Doc CEDAW/C/GC/35.
• Council of Europe (CoE), ‘Istanbul Convention: Explanatory Report’ (2011).
• CoE, ‘Preventing and Combating Domestic Violence against Women, A learning Resource for Training Law Enforcement and Justice Officers’ (January 2016).
• CoE, ‘Women’s Access to Justice: A Guide for Legal Practitioners’ (October 2018).
• ICRC, Customary IHL Database, Rule 93. Rape and Other forms of Sexual Violence.
• ICRC, ‘Sexual Violence in Detention’ (February 2017).
• Office of the United Nations High Commissioner for Human Rights (OHCHR), Arbitrary Detention, Torture and Ill-Treatment in the Context of the Armed Conflict in Eastern Ukraine, 2014-2021.
• OHCHR, Conflict-Related Sexual Violence in Ukraine 14 March 2014 to 31 January 2017.
• OHCHR, ‘Berkeley Protocol on Digital Open Source Investigations: A Practical Guide on the Effective Use of Digital Open Source Information in Investigating Violations of International Criminal, Human Rights and Humanitarian Law’ (UN 2020) (‘Berkeley Protocol’).
• OHCHR, ‘Report of the Independent International Commission of Inquiry on Ukraine’ (18 October 2022) UN Doc A/77/533.
• OHCHR, ‘Report of the Independent International Commission of Inquiry on Ukraine’ (15 March 2023) UN Doc A/HRC/52/62.
• Organization for Security and Co-operation in Europe (OSCE), ‘Report on Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine since 24 February 2022’ (13 April 2022).
• United Nations Office on Drugs and Crime (UNDOC), ‘Handbook on Effective Prosecution Responses to Violence Against Women and Girls’ (Criminal Justice Handbook Series 2014).

C. News Reports on CRSV

• Le Courrier D’Europe Centrale, ‘Un an après, les plaies invisibles de l’occupation russe dans un village près de Kyïv’ (A year later, the invisible wounds of the Russian occupation in a village near Kyiv) (6 April 2023).
• New York Times, ‘Bucha’s Month of Terror’ (11 April 2022).
• New York Times, ‘“Fear Still Remains”: Ukraine Finds Sexual Crimes Where Russian Troops Ruled’ (5 January 2023).
• NPR, ‘Rape has reportedly become a weapon in Ukraine. Finding justice may be difficult’ (30 April 2022).
• The Guardian, ‘Rape as a weapon: huge scale of sexual violence inflicted in Ukraine emerges’ (4 April 2022).
• The Times, ‘“Russian Soldiers Raped Me as My Terrified Son Cried”’ (28 March 2022).
• Washington Post, ‘Witnesses recount detentions, torture, disappearances in occupied Kherson’ (14 November 2022).

D. Reports by Other Organisations

• Amnesty International, ‘Rape and Sexual Violence’ (1 March 2011).
• Centre for Human Rights, Gender and Migration, ‘Gender-based Violence Disclosure Toolkit: Responding to Gender-based Violence Disclosure in Humanitarian Crisis Settings’ (2022).
• Gender-Based Violence Pocket Guide.
• Human Rights Watch (HRW), ‘Ukraine: Apparent War Crimes in Russia-Controlled Areas’ (3 April 2022).
• Public International Law & Policy Group (PILPG), ‘Handbook on Civil Society Documentation of Serious Human Rights Violations: Principles & Best Practice’ (2016) (‘PILPG Handbook’).
• Princeton University, ‘The Princeton Principles on Universal Jurisdiction’ (2001), Principles 1 and 2.
• Trial International, ‘Rape Myths in Wartime Sexual Violence Trials’ (2018).
• UK Crown Prosecution Service, ‘Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes’ (21 May 2021).
• UK Foreign & Commonwealth Office, International Protocol on the Documentation and Investigation of Sexual Violence in Conflict: Best Practice on the Documentation of Sexual Violence as a Crime or Violation of International Law (2^nd edn, 2017).
• Women’s Initiatives for Gender Justice, ‘The Hague Principles on Sexual Violence‘ (2019) (‘Hague Principles’); also available in Ukrainian at this link.

E. Ukrainian Sources

• Dudorov, ‘Crimes against sexual freedom and untouchability (main provisions of criminal legal characteristics)’ (O. Didorenko Luhansk State University of Internal Affairs 2018).
• Dudorov, ‘Ukrainian criminal law innovations regarding the liability for sex-delicts: some problematic aspects’ (LexInform, 4 February 2019).

F. Selected Case-Law

1. European Court of Human Rights

• M.C. v. Bulgaria, Application No. 39272/98, Judgment of 4 December 2003, paras 132, 148-166.

2. International Criminal Court

• Prosecutor v. Bemba, ICC-01/05-01/08, Trial Judgment, 21 March 2016, paras 98-112.
• Prosecutor v. Ntaganda, ICC-01/04-02/06, Trial Judgment, 8 July 2019, paras 930-986.
• Prosecutor v. Ongwen, ICC-02/04-01/15, Trial Judgment, 4 February 2021, paras 2710, 2715-2729.

3. International Criminal Tribunal for Rwanda

• Prosecutor v. Akayesu, ICTR-96-4-T, Trial Judgment, 2 September 1998, paras 10A, 507-508, 596-598.

4. International Criminal Tribunal for the former Yugoslavia

• Prosecutor v. Furundžija, IT-95-17/1-T, Trial Judgment, 10 December 1998, paras 165-189, 271.
• Prosecutor v. Kunarac et al., IT-96-23& IT-96-23/1-A, Appeal Judgment, 12 June 2002, paras 103, 127-133.
• Prosecutor v. Kunarac et al., IT-96-23-T & IT-96-23/1-T, Trial Judgment, 22 February 2001, paras 436-497, 539-543, 574, 711.

5. Special Court for Sierra Leone

• Prosecutor v. Sesay et al., No. SCSL-04-15-T, Trial Judgment, 2 March 2009, paras 143-163.