International hybrid tribunal as response to total impunity

The human rights organizations are currently working amid the challenges experienced by Ukraine: the victims of attacks on peaceful Euromaidan protests, organized by the regime of Viktor Yanukovych, the consequences of the armed aggression of the Russian Federation, the onset of Crimea’s occupation and the hybrid war in Donbas.

These existential challenges are new to our country but are not unique to the world. There is an accumulated experience of other countries that once also found themselves in a situation when the under-reformed authorities could not cope with a vast array of crimes.

The human rights activists have long urged the authorities to ratify the Rome Statute of the International Criminal Court, which would allow transferring the investigation in the occupied territories to the international justice. Another option that can be implemented in parallel is attracting an international element in the national legal system through the formation of the hybrid international tribunals.

In fact, this version has a number of advantages for Ukraine:

1. Flexibility of modeling, which manifests itself in using the national legal system and legal culture while setting up a tribunal to avoid risks arising from the specific Ukrainian context.
2. Demonstrative effect is achieved by locating a tribunal in Ukraine and makes the process visible to the public and convenient for the victims of violations.
3. Development of the national judicial system capacities through the positive influence of the international mechanism on the Ukrainian justice system as a whole.
4. Extension of enforcement capabilities through cooperation between a tribunal and the other countries, which may reflect, for example, in practical assistance to the investigation.
5. Legitimacy in the eyes of society, which is especially important amid catastrophically low confidence in the national law enforcement and judicial authorities. Many victims of the torture in eastern Ukraine do not even apply to the authorities after the liberation as they simply do not believe in their capacities.

Whichever model of a tribunal is chosen, it must be based on several approaches.

The mandate and its legitimization are of primary importance. The human rights organizations are primarily interested in the international crimes, but Ukraine still “slacks” fight against corruption. It is necessary to clearly define the relationship between this mechanism and the International Criminal Court, which has already begun to study the situation in Donbas. The best-case scenario is setting up a tribunal within a special agreement with the UN, which would allow winning the support of the international community.

The next approach is autonomy. It is important for a court to be completely independent of the political will of the state and protected from the negative impact in case of possible change of power, regardless of the chosen model. This is essential not to repeat the situation that is happening now with the National Anti-Corruption Bureau (NABU). January 13, 2016, the President of Ukraine introduced changes to the Code of the Criminal Procedure. Currently, the proceedings, initiated against the top corrupt officials after the Maidan protests, have not been transferred to the NABU and the Prosecutor General’s Office continues to investigate them.

It is necessary to pay attention to the special procedure for selection of judges and staff. It is right to speak about the need to involve the international judges. However, we should pay attention that there should be clear rules and criteria for selection and appointment of Ukrainian judges, investigators and experts as well.

Another important approach is the closed cycle. If we set up a hybrid tribunal in Ukraine, it would be appropriate to provide for a special prosecutor’s office, which would be independent of the national investigation authorities and would independently collect and analyze the evidence, qualify the actions and so on.

Temporary nature as an approach makes to determine in advance all the issue that may arise after the completion of work of such a tribunal. For example, where the archives will be stored, if this mechanism is temporary.

The special financing procedure is also a very important approach. It is one of the main guarantees of the tribunal’s independence. The establishment and operation of such a mechanism is quite expensive. Ukraine will have to attract the funds of the donor, which, as a rule, are the foreign states. Hence, these countries should be involved in a permanent control and audit of the effectiveness of the expenditure.

Thus, in order to fully use the possibilities of the international justice to address the problem of impunity, we should amend the Constitution of Ukraine and to remove the provision stipulating the postponement of ratification of the Rome Statute for three years from the transitional provisions of the Constitution.

The transitional provisions of the Constitution should provide for the opportunity to set up a specific model of a hybrid international tribunal, which should be determined as a result of a broad public debate.

It is also important to harmonize the national legislation, primarily, the Criminal Code of Ukraine, with the international humanitarian law. The Human Rights Agenda platform has already elaborated the bill that eliminates its main drawbacks.

These are the steps which the Government should take in any case, regardless of how long the process of establishing an international hybrid tribunal will last.

We expect the senior officials, the MPs, the representatives of the Government to support this idea and to promote it with their political will. Otherwise, it will remain an “unimplemented opportunity” being an unattainable luxury for the state which has a duty to protect its citizens amid a hybrid war.

Speech delivered by human rights activist Oleksandra Matviychuk (Center for Civil Liberties) during the roundtable meeting “Strengthening trust in justice in cases of corruption, war crimes and crimes against humanity through the involvement of international judges, prosecutors and investigators: foreign experience and Ukrainian needs.”