In this analytical material, we will look at the legislation of Ukraine on liability for сonflict-related sexual violence, its development and prospects for reform. At present, the provisions under which such crimes can be prosecuted do not meet the urgent needs, especially given the fact that Ukraine has been in an armed conflict for eight years. In order to ensure that the guilty individuals are brought to justice, taking into account the heinousness of the crimes committed by them and the fulfillment of its international obligations, our state needs to make appropriate changes to the national legislation.
CONFLICT-RELATED SEXUAL VIOLENCE PROBLEM IN UKRAINE
From the moment of gaining independence until 2014 when a military conflict in the East began, Ukraine did not take part in large-scale armed conflicts. Accordingly, Ukrainian legislation has never regulated the issues of gender-based violence specifically in the context of an armed conflict. Moreover, the issue of promoting gender equality and non-discrimination, as well as overcoming gender-based violence, began to attract more attention after the signing of the EU – Ukraine Association Agreement due to the need to harmonize the national legislation with the EU legislation. Another factor was the beginning of close cooperation with UN bodies within the framework of solving humanitarian issues related to the military conflict.
With this in mind, recent years have been marked by significant changes in the legal framework and the system of institutions aimed at protecting women against gender-based violence. Such changes, first of all, concerned issues of domestic violence. At the same time, the problem of sexual violence related to the military conflict has not yet received the necessary attention in the legislation, despite the fact that the armed conflict has been going on in Ukraine for the seventh year.
According to the UN, 3.1% of men and 8.2% of women detained by non-state armed groups have experienced various forms of conflict-related sexual violence. The International Criminal Court, which launched an investigation into the “Situation in Ukraine” case, also concluded that such war crimes as rape and other forms of sexual violence were committed in the military conflict zone.
Both men and women experience sexual violence as a form of torture to obtain confessions through rape, forced exposure, threats of sexual violence against them or their relatives. Men are subject to castration, and women to sexual slavery, forced prostitution and other forms of sexual violence. At the same time, women in the war zone experience conflict-related sexual violence to a greater extent: every third woman has experienced or witnessed such violence. On the other hand, among men, only one in four experienced such violence.
In addition, as a result of the COVID-19 pandemic, the availability of medical and psychological care for survivors of conflict-related sexual violence has decreased. In Ukraine, the stigma of reporting such violence existed even before the pandemic, but the situation worsened after the introduction of quarantine restrictions and the closure of checkpoints between the controlled and temporarily uncontrolled territories. This factor, together with imperfect legislation, makes it impossible to adequately respond to cases of such violence, to bring the perpetrators to justice, and to provide adequate assistance to the victims.
CRIMINAL LAW PROVISIONS ON LIABILITY FOR COMMITTING SEXUAL VIOLENCE
Ukrainian legislation establishes criminal liability for crimes against a person’s sexual freedom and sexual integrity, which include rape, sexual violence, coercion into sexual intercourse, acts of a sexual nature with a person under the age of sixteen, molestation of minors and molestation of a child for sexual purposes.
It is noteworthy that the definition of the crime of rape was brought in line with international standards relatively recently. This happened after the UN Committee on the Elimination of Discrimination against Women made remarks to Ukraine regarding the shortcomings of the relevant article of the Criminal Code of Ukraine and recommended expanding the definition of rape (War without rules: gender-based violence related to the armed conflict in eastern Ukraine / A. Alyokhin, S. Kyrychenko, A. Korynevych, et al.; edited by V. Shcherbachenko, H. Yanova // “Eastern Ukrainian Center of Public Initiatives”, K., 2017, p. 33). As a result, changes came into force in 2019, according to which “rape” is now defined as “committing acts of a sexual nature, involving vaginal, anal or oral penetration of the body of another person using the genitals or any other object, without the victim’s voluntary consent”, and consent is considered “voluntary, if it is the result of a person’s free will, taking into account the accompanying circumstances”. Thus, the definition of rape has become more complex and is based on the absence of freely given consent, taking into account a wide range of circumstances that form the general situation of coercion. This definition corresponds to the definition adopted in international criminal law, in particular the definition contained in the Elements of Crimes of the ICC and accepted by the international community as the most authoritative one.
Despite this, the application of only the articles of the Criminal Code of Ukraine prohibiting sexual violence in general to such cases that take place in connection with an armed conflict seems insufficient. These provisions do not reflect all the horrific aspects and complexities of war-related sexual violence. The punishments provided for such crimes are also less than those for war crimes. As a result, it is impossible to take into account the intent of the offender, the severity of the crime and the trauma caused to the victim.
CRIMINAL LAW PROVISIONS ON VIOLATIONS OF HUMANITARIAN LAW NORMS
As it was discussed in the previous materials, conflict-related sexual violence can constitute an element of international crimes such as war crimes, crimes against humanity or the crime of genocide. However, at the moment, the definition of the relevant crimes in the criminal legislation of Ukraine is limited and does not meet the urgent needs.
Criminal liability for violation of the laws and customs of war is established by Article 438 of the Criminal Code of Ukraine. This article establishes punishments for the cruel treatment of prisoners of war or the civilian population, the deportation of the civilian population for forced labour, the use of means of warfare prohibited by international law, other violations of the laws and customs of war provided for by international treaties, the binding consent of which has been granted by the Verkhovna Rada of Ukraine, as well as ordering to perform such actions.
The wording of this article is unacceptable for several reasons. First of all, its content is too broad and may include any violations of treaty international humanitarian law, regardless of their severity. However, as we wrote in the previous material, in international law and judicial practice, for an act to be recognized as a war crime, it must reach the threshold of “a serious violation”. In addition, a direct reference to international conventions, without mentioning at least the Geneva Conventions of 1949 and their Additional Protocols, as well as the lack of experience of Ukrainian investigators, prosecutors and judges in matters of international humanitarian and criminal law, means that such provisions will be applied “carefully”. Another problem is that the text of this article ignores the provisions of customary international humanitarian law, which is the main source of regulation of non-international armed conflicts and mixed armed conflicts (developing in the territory of Ukraine). Accordingly, this article does not meet international standards and requirements of the current situation.
The Criminal Code in a separate article 442 establishes liability for the crime of genocide. It is defined as “an act intentionally committed with the aim of full or partial destruction of any national, ethnic, racial or religious group by taking the lives of this group members or inflicting serious bodily harm on them, creating living conditions for the group designed for its full or partial destruction physical destruction, reduction or prevention of childbearing in this group or by forcible transfer of children from one group to another.” The provisions of this article significantly narrow the content of acts for which liability is established in international criminal law. Moreover, the national criminal law concept of “heavy bodily harm” is much narrower in its content than the concept of “serious bodily harm” used in international law. The latter, in particular, includes forms of sexual violence that reach the minimum threshold of seriousness to constitute a violation of the provisions of the Geneva Conventions of 1949 and Additional Protocol I. Accordingly, Article 442 does not include all the forms of sexual violence that may constitute genocide.
REFORM OF UKRAINIAN LEGISLATION IN CONNECTION WITH THE MILITARY CONFLICT
The national legislation of Ukraine in matters related to sexual violence during the military conflict is currently amended to a large extent within the framework of national action plans for the implementation of UN Security Council Resolution 1325 “Women, Peace, Security”, as well as “Strategies for Prevention of and Response to Conflict-Related Sexual Violence in Ukraine”.
The first National Action Plan for the implementation of UN Security Council Resolution 1325 “Women, Peace, Security” until 2020 was approved in 2016. One of its most important achievements was finally recognizing the problem of the lack of systematic criminal investigations and convictions in cases of sexual violence related to the armed conflict. The goal was also set to improve the mechanism for reporting such crimes.
In 2018, the UN conducted an interim assessment of the implementation of the National Action Plan, during which it was necessary to resolve a controversial issue of whether special emphasis should be placed on conflict-related sexual violence, or on gender-based violence more broadly. The UN Women in Ukraine expert clearly stated that measures to “prevent domestic violence, combat human trafficking are not related to the implementation of UN Security Council Resolution 1325, and, regardless of an armed conflict, should be part of the relevant policy”. Moreover, the report emphasizes that “the blurring of the subject of the National Action Plan with issues of domestic violence, human trafficking, and support for socially vulnerable groups means that the key issues of disarmament, demilitarization, and reintegration will remain on the periphery of political life”.
Since the National Action Plan is to solve the issues of gender-based violence in the public sphere, i.e. acts carried out by representatives of the state or which the state could not prevent, Ukraine should have changed its approach and focus on issues of conflict-related sexual violence.
In addition to the Interim Assessment, the National Strategy for Prevention of and Response to Conflict-Related Sexual Violence in Ukraine was published in 2018, developed with the support of the Office of the United Nations High Commissioner for Human Rights and UN Women in Ukraine. This Strategy provided recommendations aimed at helping “the Government of Ukraine better understand and implement more effective measures to prevent conflict-related sexual violence within existing mechanisms, as well as through new mechanisms”, as well as recommendations for how to effectively monitor, record and investigate such cases.
In 2020, the results of evaluation of the implementation of the National Action Plan until 2020 and the 2018 National Strategy were laid as the basis for the second National Action Plan for the implementation of UN Security Council Resolution 1325 until 2025. One of the strategic goals was defined as “ensuring protection against gender-based violence, sexual violence (during an armed conflict and in peacetime)”.
To achieve this goal, it was deemed necessary to make amendments to the legislation in terms of combating gender-based violence in accordance with international standards; develop tools for recording cases of crimes against life and health, sexual freedom and integrity, honour and dignity of a person in conflict conditions in accordance with UN and NATO standards; determine institutional mechanisms for proper response to, documentation and investigation of relevant crimes; develop tools to ensure effective and timely assistance to victims of gender-based violence.
In order to bring national legislation in line with international law, Draft Law No. 2689 “On Amendments to Certain Legislative Acts of Ukraine Regarding the Implementation of International Criminal and Humanitarian Law” was submitted. It was adopted by the Parliament last May, but is still awaiting the signature of the President. This draft law ensures the harmonization of the provisions of Ukrainian national law with the provisions of international criminal and humanitarian law regarding criminal prosecution for international crimes (genocide, crime of aggression, crimes against humanity and war crimes), as well as Ukraine’s fulfilment of its international obligations to prevent legal and actual impunity for committing such crimes.
The draft law proposes, among other things, to amend Articles 438 and 442 of the Criminal Code of Ukraine, and to supplement it with Articles 4381-4382 (on war crimes) and Article 4421 (on crimes against humanity). The proposed war crimes articles are substantively similar to Article 8 of the Rome Statute and encompass all types of war crimes, as well as other serious violations of the 1949 Geneva Conventions and their Additional Protocols. In particular, draft article 438 defines a war crime as “deliberate commission in connection with an international armed conflict or a non-international armed conflict against a person who is under the protection of international humanitarian law: 8) rape, sexual exploitation, forced pregnancy, forced sterilization or any other forms of sexual violence”. This provision corresponds to the practice developed by international criminal tribunals and the norms of international law. We should also mention the definition of forced pregnancy in the footnote to this article, which is understood as “illegal deprivation of liberty of a woman who has become pregnant by force, for the purpose of changing the ethnic composition of any population or committing other violations of international law, which have the nature of a war crime or a crime against humanity”. It seems appropriate to add to this definition a mention that forced pregnancy may also have the nature of a crime of genocide, since the purpose of the crime may be to change the ethnic composition of the group. And such actions are subject to the prohibition on measures aimed at preventing the birth of children as one of the elements of the crime of genocide.
The proposed amendments to Article 442 of the Criminal Code of Ukraine, which establishes liability for the crime of genocide, are also aimed at bringing it in line with Article 6 of the Rome Statute and Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. The proposed wording takes into account the practice developed by international criminal tribunals and recognizes that the crime of genocide may include sexual violence. Similar to Article 6 of the Rome Statute, Article 422 lists five main forms of the crime of genocide: killing members of a group; causing serious bodily harm or mental disorder to members of the group; deliberately creating living conditions aimed at full or partial physical destruction of the group; taking measures designed to prevent the birth of children; and forced transfer of children to another group. At the same time, it is noted that serious harm should be understood, among other things, as rape or other forms of sexual violence, intentional infliction of physical or moral suffering. As we noted in the previous material, all these acts are recognized in international judicial practice as forms of the crime of genocide.
Draft Article 4421, which provides for the criminalization of crimes against humanity, like the previous articles, fully corresponds to the content of Article 7(1) of the Rome Statute, the provisions of which are considered the standard in terms of the normative characteristics of this crime and are reflected in the criminal legislation of most European states. The provisions of the article criminalize rape, sexual exploitation, forced pregnancy, forced sterilization or any other form of sexual violence as crimes against humanity. In addition, liability is also established for torture, which, for the purposes of this article, is understood as intentional infliction of severe physical pain or physical or moral suffering on a person.
In one of the previous materials, we noted that some acts of sexual violence can also be qualified as torture. Another important advantage of this draft law is the establishment of the fact that for the purposes of the relevant articles of the Criminal Code of Ukraine, the provisions of international treaties approved by the Verkhovna Rada of Ukraine and customary international law that were in force at the time of the relevant act should be applied, taking into account practices of applying these provisions by international judicial institutions (tribunals). This norm provides for the need to take into account the norms of international law and international judicial practice when decisions are made by national courts and the relevant norms are interpreted. That is, this provision will ensure compliance of the specific composition of international crimes in the Criminal Code of Ukraine with the norms of international criminal law. The importance of this provision is that the latter “is characterized by significant dynamics, in particular due to the fact that it consists not only of “static” treaty norms, but also of “dynamic” customary norms, the source of which is, first of all, the practice of international criminal courts (tribunals )”. Therefore, the entry into force of these norms will ensure compliance of the national criminal law of Ukraine with its obligations under international law and compliance of the legal practice of criminal prosecution of sexual violence with international standards and practice.
Accordingly, we can see that the applicable national legislation does not meet the requirements of the current situation. Forced application of only articles of the Criminal Code of Ukraine that criminalize sexual violence in general to cases of sexual violence occurring in connection with the armed conflict does not reflect the complexity of this problem and does not provide sufficient punishment. The lack of experience of Ukrainian investigators, prosecutors and judges in matters of international humanitarian and criminal law makes it almost impossible for them to apply international treaty norms in accordance with applicable Article 438 of the Criminal Code. In order to solve a wide range of problems related to the shortcomings of the legislation and ensure the prosecution of persons who have committed the crime of conflict-related sexual violence, it seems necessary to put into effect the aforementioned draft law concerning the implementation of the norms of international criminal and humanitarian law.