Wayne Jordash’s Speech at the UNGA side-event “Protection and Justice for Victims of Conflict-Related Sexual Violence in Ukraine”

25 September 2022

Thank you to Open Society Foundations, the Permanent Mission to Ukraine and the Office of the Prosecutor General (OPG) for the opportunity to speak on this timely panel. Presently, I lead Mobile Justice Teams (MJTs) that contain specialist prosecutorial, investigative and international law expertise that can be harnessed by the OPG to support their investigations and prosecutions. We help to support crime scene investigations, provide legal advice, review ongoing cases; and help to design prosecutorial strategies required to address international crimes.

It is through the MJTs that I became involved in supporting the OPG’s investigations and prosecutions in relation to CRSV in Ukraine. Having worked with the OPG on several of their live cases prior to and since 24 February, pursuant to Prosecutor General Kostin’s direction, we worked in conjunction with the OPG, to support the first draft of the OPG’s Victim and Witness-Oriented Strategy for the Prosecution of Conflict-Related Sexual Violence Crimes. As you heard, this strategy has now been refined and approved during the widest consultation amongst international and national stakeholders, including OPG, civil society, and experts on this panel, and represents an ambitious plan to enhance accountability and support survivors of these crimes.

The plan includes: a specialised CRSV Division in the OPG consisting of an Advisory Group and a Core Team to develop a CRSV strategy and coordinate investigative and prosecutorial activity respectively and a Victim and Witness Protection and Support Unit to combine the best of civil society and OPG expertise to ensure protection and support for survivors.

The OPG’s ambitions in the midst of a brutal invasion are to be applauded and the work has already begun. As you might imagine, the challenges are immense. The Kremlin is undoubtedly engaged in a campaign of terror and persecution that encompasses a plethora of widespread and systematic war crimes and crimes against humanity spanning thousands of kilometers. CRSV is taking place in a sea of other crimes that would test any legal system.

Notwithstanding the OPG has prioritised these crimes. In the early days of the latest invasion, I was asked to support Prosecutor Iryna Didenko – the newly designated head of the CRSV division – and Olexiy Bonyuk, a senior prosecutor and one of the Prosecutor General’s right hands. They had taken personal charge of a double rape and murder case from the Kyiv suburbs and were wrestling with the difficulties of how to investigate and simultaneously provide a range of essential support to the survivors. The perpetrators had long since retreated as the Russian troops were driven back from Kyiv in March. The Prosecutors had descriptions, their first names and their Units but little more.

These two prosecutors were sensitive, careful and determined. Along with really tricky issues of identification evidence, they recognised the need to combine the services and experience of investigators, specialist CSOs, medical and psycho-social services, as well as international experts. Absent a specialist CRSV division and Victim and Witness unit, they literally ran around, ensuring that the NPU and OPG were conducting survivor centered investigations, as well as calling around to ensure that appropriate referral services – police, doctors, psychologists, and relevant CSOs – were engaged and integrated into the process. That’s why I say the work has already begun. Prosecutors, such as these, have been doing their best to pursue justice and provide appropriate support.

But of course, as recognised by Prosecutor General Kostin, the OPG cannot rely upon the good will and tenacity of individual Prosecutors or police or relevant CSOs to meet the challenges presented by these crimes. As the somewhat lamentable history of modern international criminal tribunals show us, these investigations are particularly complex and require specific focus. All survivors experience long-lasting harm and women and girls have unique gender-based needs. Avoiding further harm requires holistic support for dignity, autonomy and agency. Automatic access to vital services that provide legal justice, psychosocial support, medical care and reintegration is essential. Appropriate investigations and support must be institutionalised.

Each component of the OPG’s proposed Division with their specific roles and capacities will work together to complement each other and implement the CRSV mandate. As recognised by the OPG, there will be a focus on: refining policy and legislation; enhancing cooperation across all judicial actors; changing norms; improving investigation and prosecution approaches (including how to avoid under and over documentation); the promulgation of guidelines to reflect investigative, evidential and protection standards to harmonise approaches, including in regards to informed consent, safe support, referral pathways, confidential and security measures; designing specialised training programs, including deconfliction protocols to allow documentation for criminal and non-criminal purposes, strategic communication; and of course, throughout, a focus on how to do no harm.

Of course, the challenges are enormous. CRSV is a feature of this terrible invasion and as recognised by OCHR in their report today, Russian soldiers are responsible for a range of sexual and gender-based violence with victims spanning from 4 – 82 years. However, the full extent of these crimes remains concealed by war, denial and under reporting.

Prior to the 2022 full-scale invasion, cases of CRSV were underreported compared to other acts of violence and this appears to be just as true now as it was then. Indeed, as indicated by the Deputy Prime Minister for European and Euro-Atlantic Integration of Ukraine, Olga Stefanishyna and Prosecutor General Kostin, this may be the first challenge that the OPG has to confront: the disclosure barriers. Many survivors were and are reluctant to report acts of sexual violence due to fear that the Russians will come back, or of reprisals, shame, and trauma. The OPG’s CRSV division has begun in earnest to assess and confront these systemic problems through targeted communication campaigns explaining the role of the CRSV division and the support services available, as well as managing expectations.

And let me end with managing expectations or rather being clear about what can be achieved. It will remain very difficult to bring perpetrators of CRSV to responsibility for the acts they committed in Ukraine. The example I gave earlier of the OPG’s superb investigation of a double rape, led to one of the suspects being positively identified from a photograph. More than sufficient for conviction. But the suspect has long gone and may in fact now be dead.

Despite this, there is still much that can be achieved with the right approach. In the end, trials are important, but so is work to end the stigma and stereotyping and to overcoming social norms that normalise and legitimise sexual violence. Not all survivors want a criminal trial and many who do will, with the right support, accept that accountability is a difficult and uneven path.

And so, there is no time to waste. Thank you to the EU and UK for its support for my organisation which enables us to help support the CRSV Division. Sadly, there will be many more of these crimes and of course we do not have to wait for the perfect CRSV Division. As the OPG recognises, we need to move forward with a coalition of the willing and able – across Government and civil society – making use of what exists as we move forward to address crimes and support the survivors.

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