The OPG's Victim and Witness-Oriented Strategy for the Prosecution of Conflict-Related Sexual Violence Crimes: Opportunities, Challenges and Risks

While all eyes are turned to the ongoing Russian war crimes on Ukraine’s civilian infrastructure, the Office of the Prosecution General (OPG) has been busy in another critical judicial sphere – beginning the vital work envisaged by their Victim and Witness-Oriented Strategy for the Prosecution of Conflict-Related Sexual Violence Crimes (‘the Strategy’).  Whilst the investigation of Conflict Related Sexual Violence (CRSV) cases fall within the jurisdiction of the SSU (Criminal Procedure Code (Art. 216(2)) (and many cases are transferred to the NPU), prosecutorial bodies, including the OPG, bear the primary burden of supervising the investigation and prosecution of CRSV cases (CPC, Art. 36(2)). 

The OPG intends to fulfill its important role through a three-pronged strategy. It envisages

1. the creation of a leading and core group at the central level, in particular
2. a specialised group of investigators and prosecutors, including mobile groups of investigators of the National Police, and
3. a group for the protection and support of the CRSV victims and witnesses, which will also include international experts to ensure reliable protection and support for all survivors.

As the OPG has correctly recognized, in light of their "legal and moral obligation to ensure effective investigation of these crimes according to international standards, as well as [an obligation to] provide legal and psychological support to victims during the entire judicial process", these elements are vital.

Crucially, the Strategy has the support of a range of essential partners, including the Ministry of Internal Affairs and the NPU, leading civil society service expert providers, Assisto, YurFem and La Strada, the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, and a range of international experts. With Lead Prosecutor, Iryna Didenko, a tenacious Prosecutor, facing an ever-growing pile of CRSV cases on her desk, in charge of the CRSV Strategy, the OPG’s mandate appears to be in safe hands.

However, the OPG’s fulfilment its mandate does not only depend upon the OPG’s ambition or their expertise. There are many government actors operating in this increasingly crowded judicial arena.

These include the Ministry of Interior, the SSU, the Verkhovna Rada’s Committee on Human Rights, De-occupation and Reintegration of Temporarily Occupied Territories in Donetsk, Luhansk Regions and the Autonomous Republic of Crimea, National Minorities and Interethnic Relations, the Sectoral Working Group on "Gender Equality" the UN Population Fund,  the Government Commissioner for Gender Policy,  the Ministry of Health, the Ministry of Social Policy, the Office of the Representative International Organization for Migration in Ukraine, the Ministry of Reintegration, and the Ad hoc Parliamentary Commission on Investigation of the Sexual Violence Committed as a Result of the Russian Federation aggression. Whilst these government actors create opportunities for improved service provision and safe referrals in furtherance of holistic accountability and support for survivors, their proliferation raises a number of obvious concerns. 

The effective monitoring, documentation and reporting of crimes of sexual violence and support for survivors depends upon a range of government (and non-government) actors coordinating and collaborating across different sectors.

However, if service roles are not carefully defined and mandates and expertise respected, these risks can easily translate into a multitude of competing, inadequate, or even dangerous, investigations and fragmented and disorganized support for survivors. Whilst, many of the aforementioned actors have distinct and separate roles encompassing coordination, social, psychological and financial assistance e.g., the Working Group on "Gender Equality", the Ministry of Health, the Ministry of Social Policy, the Office of the Representative of the IOM), others – especially in the investigation and prosecutorial domain – appear worryingly overlapping, if not duplicative of the OPG’s expertise and supervisory mandate. 

Particularly noteworthy are the apparent investigative mandates of the Office of the Government Commission for Gender Policy, the Interdepartmental Working Group on Combating Sexual Violence Associated with Armed Aggression of the Russian Federation against Ukraine, the Ad Hoc Parliamentary Commission (on Investigation of the Sexual Violence Committed as a Result of the Russian Federation aggression). The Ad Hoc Parliamentary Commission’s apparent mandate to investigate CRSV (including the power to summons witnesses) to bring perpetrators to justice may be a textbook example of the risks. Putting aside the highly specialized nature of CRSV investigations (requiring joined up expertise), it appears to sit uncomfortably with the OPG’s mandate, creating overlapping or even conflicting mandates that raise a number of practical concerns. 

The Murad Code, a global, voluntary code of conduct for those collecting information from survivors of CRSV speaks to these concerns and challenges. Named after the Nobel Peace Prize laureate, Nadia Murad, a survivor of ISIS crimes, the Code seeks to guide investigators in their work and places survivors’ rights, priorities, risks and well-being at the heart of the documentation.  As Principle 7.5 of Murad Code makes clear, every actor must understand the limits of their experience, expertise and perspective. Each must reflect honestly about, and must stay within, the boundaries of their knowledge, skills and understanding. This is critical if service provision is to respect ‘do no harm’ principles (see DISVC Protocol, p. 85, and Murad Code, Principles 1-2), that includes the sacrosanct requirement that survivors must be free, to choose her or his own course of action (or non-action) regarding their involvement in the investigation and prosecution of the crimes (see DISVC Protocol, pp. 85, 89, and Murad Code, Principle 2.2). 

Indeed, informed consent is the bedrock of all CRSV investigations and support. Every Government (or non-Government actor) bears the responsibility to help facilitate "safe pathways" to allow a survivor to make contact with the relevant service provider, in this case, the OPG (Murad Code, Principle 2.1). 

The OPG is peculiarly positioned to ensure that survivors receive full, clear and honest information about the judicial process, including the anticipated modalities. They must be responsible for explaining the purpose of the investigation, the procedures that will be followed and risks and benefits to themselves of participating (DISVC Protocol, p. 90). All cooperating survivors must give their informed consent to each stage of the investigation, whether being interviewed, having information recorded or photographs taken, being referred to support services, or having their information and contact details shared with third parties (DISVC Protocol, pp. 92-93).

The OPG must ensure that no pressure is placed on survivors to share information and none is shared without the survivors express informed consent (Murad Code, Principles 2.6 and 2.3). Survivors (or witnesses, doctors, psychologists, etc.,) must not be pressured (by anyone) to report CRSV cases (see, e.g., Murad Code, Principle 2.6; British Red Cross, p. 14). Informed consent should be seen as a process to be continuously renewed and aligned with a thorough threat and risk assessment  capable of mitigating harm (see DISVC Protocol, p. 92).

In this sense, the OPG’s mandate must remain distinct and critical. Of course, it is not a one-way street. Even though the Government must safeguard the OPG’s critical and overriding mandate (and be alive to potential conflicts with new Government actors), the OPG should not act alone. If UN Security Council Resolution 1888,  and its clarion call for improved investigation of CRSV crimes, is to become a reality, the OPG must in turn respect the mandate and expertise of other Government actors and humanitarian and community-based organizations working with survivors.

Men, women and children who have experienced sexual violence have multiple needs, including for medical and psychosocial care, and a range of protection support. Identifying and reducing barriers to accessing support for survivors must be at the forefront of all CRSV work (Murad Code, Principle 5.6). Referrals to those fulfilling these mandates are a critical component of any prosecutorial response to sexual violence. Multi-sector coordination and cooperation to avoid competition, prevent further harm, over-exposure of survivors and negative impacts on survivor’ rights arising from a range of actors is vital (Murad Code, Principle 5.7).