Strategic threat in the Strategic Plan

On 15 September 2023, Prosecutor General Andrei Kostin approved the Strategic Plan for implementing the powers of the prosecutor’s Office in criminal prosecution for international crimes for 2023-2025 (Strategic Plan). The appearance of this document is a good sign since it indicates that criminal proceedings for international crimes are receiving special attention from the prosecutor’s Office. It’s a pity, however, that the Strategic Plan appeared ten years after the start of Russian armed aggression against Ukraine. It is all the more unfortunate that the Strategic Plan gives too many reasons for criticism.

A major shortcoming of the Strategic Plan is that it fails to identify the problems that the Office of the Attorney General (OAG) believes exist in current international crime cases. For comparison, in the preamble of the Comprehensive Strategic Plan for Reforming Law Enforcement Agencies as part of the Security and Defense Sector of Ukraine for 2023-2027, a separate paragraph is devoted to problematic aspects of the activities of law enforcement agencies. The absence of such a fragment in the Strategic Plan initially undermines its weight and significance. Without understanding what the OAG considers successes and failures in international crime cases, it is difficult to assess the validity and appropriateness of most of the goals, objectives, and expectations stated in the Strategic Plan. For example, law enforcement agencies of Ukraine have registered more than 100 thousand proceedings in cases of war crimes committed by the Russian military. Still, sentences have been passed only in a few dozen proceedings. Does the OAG consider this an achievement or a problem? Certain provisions of the Strategic Plan also raise questions, for example:

a) as its name suggests, the plan concerns the prosecution of international crimes. At the same time, the plan clarifies that for its purposes, the crimes of genocide, aggression, war crimes, and crimes against humanity related to the international armed conflict on the territory of Ukraine are international. However, later in the introduction, it is indicated that ecocide is an international crime. Yet, according to international law and even the legislation of Ukraine, it is not a manifestation of any of the four offenses mentioned above;

b) clause 1.3. of strategic goals and objectives involves initiating the adoption of changes to legislation to ensure effective criminal prosecution for international crimes. Firstly, does declaring such a task mean the current legislation does not allow the effective prosecution of international crimes? This ambiguity also shows that its serious shortcoming is the absence of a section in the Strategic Plan describing existing problems. Secondly, as follows from a recent survey of Ukrainian prosecutors conducted by the Ukrainian Helsinki Union for Human Rights, the majority do not see the need to make changes to legislation to improve the effectiveness of the investigation of international crimes in Ukraine. This cannot help but raise the question of whether the OAG and its subordinates are “on the same page” when it comes to prosecuting international crimes;

c) in clause 4.1. strategic goals and objectives are about providing effective assistance to the International Criminal Court (ICC), the Special International Tribunal for the Prosecution of the Crime of Aggression, and foreign courts in prosecuting international crimes committed in Ukraine, per the principle of complementarity. However, where does the OAG have confidence that the Special Tribunal, the creation of which is only being discussed, will act like the ICC based on the principle of complementarity, which assigns an auxiliary (subsidiary) character to the jurisdiction of an international judicial institution in comparison with national jurisdiction? The history of international criminal justice also knows other models of the relationship between state jurisdiction and the jurisdiction of international judicial institutions. As for the extension of the principle of complementarity to criminal proceedings carried out by foreign courts, this looks like legal nonsense since international law does not contain rules that would put one national jurisdiction in a complementary position relative to another in prosecuting international crimes.

Nevertheless, what appears to be the most problematic is in clause 1.5. of the Strategic Plan: “implementation of the system which defines prioritization and selection of criminal proceedings based on clear and transparent criteria.” In his report, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, distinguishes between prioritization and selection of criminal proceedings, emphasizing that prioritization involves giving some proceedings more attention than others. It considers objective criteria (the seriousness of the crime, the possibility of trial in the presence of the accused, the high official position of the suspects, etc.). The selection of criminal proceedings should make the distinction between cases that are subject to criminal prosecution and cases that are not subject to criminal prosecution at all. Regarding the investigation and prosecution of international crimes, the strategy of selecting proceedings looks extremely dubious due to its apparent contradiction with the principle of preventing impunity for such atrocities, which is embodied in many sources of international law.

The OAG may have some other meaning in the concept of “prioritizing” and “selecting” criminal proceedings. Still, in the absence of specific explanations, the text of the Strategic Plan gives the impression that the purpose of the prosecutor’s Office is to establish a barrier between cases of international crimes that will be investigated and those that will not. Unfortunately, it is entirely unclear how this is consistent with Ukraine’s numerous obligations to prevent impunity for acts that constitute international crimes arising from international criminal and humanitarian law and international human rights law. Ukraine’s failure to comply with these obligations through the selection of criminal proceedings will provide victims of acts that will not be investigated and prosecuted with grounds to bring valid legal claims, for example, through appeals to the European Court of Human Rights. Based on what constitutional and legislative provisions the OAG considers itself authorized to introduce the selection of criminal proceedings in cases of international crimes, it is also unclear.

In general, the idea of ​​selecting criminal proceedings looks especially strange in the context of the fact that the Strategic Plan does not concern international crimes that have no connection with Ukraine but, on the contrary, crimes committed on the territory of Ukraine or against Ukrainian citizens. Suppose the OAG was guided by the strategy of the Office of the ICC Prosecutor for selecting cases. In that case, this is a fundamentally wrong parallel since the ICC was conceived as a “court of last resort”, which, by definition, will not investigate, prosecute, and punish the vast majority of cases potentially covered by its jurisdiction. At the same time, the primary burden of preventing impunity for international crimes must be borne by states that accept the jurisdiction of the ICC.