The Ukrainian justice system should be bolstered in order to provide effective access to justice and accountability during and following the war, the International Commission of Jurists (ICJ) said in a briefing paper published today. The paper provides a preliminary assessment of the impact of the ongoing armed conflict between the Russian Federation and Ukraine on the judicial system of Ukraine, and on the capacity of the judicial system to provide access to justice and to effective remedies for human rights and international humanitarian law (IHL) violations during the conflict.
The Russian invasion and ensuing armed conflict have carried devastating consequences for the lives of all persons in Ukraine, with casualties mounting every day. Widespread incidents of human rights and IHL violations amounting to crimes under international law have been well-documented. Yet, the justice system of Ukraine has demonstrated resilience and has continued to function, albeit in a limited manner, despite the invasion and the occupation of parts of the country.
The ICJ stresses the importance of Ukraine maintaining a justice system that functions fairly and effectively during the conflict. Independent courts should be equipped to scrutinize the application of martial law to ensure that any limits on human rights comply with international law, including the principle of necessity and proportionality. In particular, every effort should be made to maintain judicial review of detention, and powers of prosecutors to authorize extensions of detention should be removed. Cases concerning violations of human rights should be prioritized by the courts while lawyers must be able to promptly access their clients, including those in detention, the ICJ said.
The ICJ finds that the judiciary and other authorities have taken important steps to ensure the continued operation of the judicial system during the very difficult circumstances of the conflict, including use of remote hearings, and transfer of cases between regions. However, a shortage of judges, a lack of financial resources for the courts, and the cessation of the work of crucial judicial governance bodies since before the start of the conflict, have made the work of the courts more difficult, and should be addressed as a matter of priority.
International support should be made available to help to rebuild and strengthen the justice system of Ukraine and ensure its independence following the conflict.
On 24 February 2022, the Russian Federation launched its military invasion against Ukraine. The UN General Assembly, in its resolution of 2 March 2022, qualified this attack as an act of aggression in violation of Article 2(4) of the UN Charter. On 7 March, the UN Human Rights Council strongly condemned “the aggression against Ukraine of the Russian Federation”, while the UN Secretary General called it “the most serious global peace and security crisis in recent years”.
Under UN General Assembly Resolution 3314 (XXIX) aggression is defined as “[…] the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations […]”.
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