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Ukraine’s efforts to investigate conflict related sexual and gender-based violence and the role of the ‘complementarity’ in International Criminal law

Article by Mariam Uberi

September 21, 2023

Ukraine’s efforts to investigate conflict related sexual and gender-based violence and the role of the ‘complementarity’ in International Criminal law


Disclaimer: This article references topics that readers may find distressing and/or triggering.


Sexual violence has long been part of armed conflict. Despite prohibitions against sexual violence having been codified in international law it continues to be perpetrated. Under international humanitarian law and international criminal law, rape can constitute a war crime, crime against humanity, torture, or a constitutive act with respect to genocide when the other elements of the crimes are present. The Rome Statute of the International Criminal Court (ICC) and the Elements of Crime[1] reflect the latest trends in the treatment of sexual violence.[2]


There has been significant evidence collated that suggests conflict-related sexual violence (CRSV) has been a prevalent issue in eastern Ukraine and occupied Crimea since 2014. The escalation of Russia’s advances to the illegal invasion of Ukraine in 2022 has led to a notable increase in both the magnitude and volume of cases of CRSV across the country. When perpetrated in the context of an armed conflict, sexual and gender-based violence (SGBV) is a serious violation of international humanitarian law and classified as a war crime. This underscores the urgency and importance of Ukraine’s attempts to address and investigate these crimes, by holding perpetrators accountable and providing justice and support to the victims.


Legal Context

The Government of Ukraine has not ratified the Rome Statute, it has, however, accepted the jurisdiction of the ICC.[3] It also follows that Ukraine is now duty-bound to assist the ICC. The principal obligations of Ukraine under the Rome Statute of the ICC fall within two major areas: “complementarity” and “cooperation”. The Rome Statute also requires the Government of Ukraine to ensure that it is able to cooperate with the Court fully and to adopt laws to this effect where necessary.[4] The principle of complementarity, defines the relationship between the ICC and its States Parties, confirming the primary state jurisdiction whilst limiting admissibility of cases before the ICC.[5] Complementarity is being dubbed as an “express will of States Parties” that acknowledges “the primary responsibility of States to exercise criminal jurisdiction”.[6] To further support this process, the ICC’s  Office of the Prosecutor (OTP) adopted a policy of “positive complementarity”, that encourages “genuine national proceedings” where possible, relying on national and international networks, participating in a system of international cooperation.[7] It provides the ICC with a mechanism that compels states to pursue an acceptable measure of accountability for major crimes including sexual violence. This stems from the OTP’s public commitment, made in 2006, to pay particular attention to methods of investigations of sexual and gender-based crimes.[8]


Article 17 of the Rome Statute identifies the circumstances in which a case becomes admissible before the ICC: when it is not being investigated or prosecuted nationally, or when the state is unwilling or unable to carry out the investigation and prosecute the case. The case must also be of sufficient gravity to justify investigation and prosecution by the ICC. A ‘case’ is described as proceedings against the same person in question, for the same conduct. This means that if a person is acquitted or convicted of a crime, they cannot be tried or punished again for the same crime, even if the second prosecution is for a different violation of law. Surprisingly, it is sufficient for a state to prosecute the subject’s conduct as a domestic crime rather than an international crime, as long as it is the same conduct as the issue.[9]


The possible conclusion that can be drawn as a result of this is that rape, even when undertaken as part of systematic or widespread attack or with genocidal intent, would be prosecuted as a domestic crime, as opposed to a crime against humanity.


Complementarity and Legislative Limitations

The complementarity in itself does not explicitly require the adoption of the crimes nationally. It has, however, often been referred to as the catalyst of domestic reform in introducing international crimes.[10]  Despite the “margin of appreciation” that states retain in the extent of domestic legislation, coupled with the lack of clear guidance from the ICC, many member states have introduced far reaching legislative reforms.


Basic presumption found in the case law of the ICC and ad hoc tribunals is that the rape committed during an armed conflict differs from the one committed during the peace time. It is often used as a military tactic where sexual assault becomes a crime against the whole community.[11] The UN Resolutions 1325 and 1820, both of which Ukraine supported, highlighted the need to protect women and support “maintenance and promotion of international peace and security”.[12] Resolution 1325 emphasised that sexual violence as a tactic of war can significantly exacerbate armed conflicts and impede international peace. It also affirmed that rape can constitute a war crime, crime against humanitry and/or genocide. The Resolution urged all states to establish effective systems for investigating and punishing perpetrators of sexual violence within the context of armed conflict.


Resolution 1820 stresses that the state bears a responsibility for respecting and ensuring the human rights of their citizens as well as individuals on their territory.[13] A report by the UN Commission on Human Rights investigating systematic rape committed during the armed conflict, concluded that nations must establish awareness of the seriousness of crimes of sexual and gender-based violence at the national level and deal properly with such crimes in international or non international armed conflicts. It reaffirmed the importance of states having clear legislation prohibiting rape and other forms of sexual violence and to provide adequate penalties commensurate to the gravity of such acts.


The Independent International Commission of Inquiry on Ukraine has documented a number of SGBV cases.[14] Based on the evidence collected, some members of Russian armed forces committed the war crime of rape and sexual violence involving women, men, and children, ranging from four to 82 years old.[15] As of June 2023, the Office of the Prosecutor General of Ukraine recorded 208 cases of war-related sexual violence.[16] However, according to the Special Representative of the UN Secretary-General on Sexual Violence in Conflicts, for every officially registered case of war-related sexual violence, in Ukraine, there are ten to 20 unregistered ones.[17] Ukraine has been taking a number of steps to investigate and document war crimes committed by Russian forces. This included the creation of a special group within the structure of the National Police to document crimes committed during the armed invasion and occupation of Ukraine. This also involved granting investigative security bodies the power to investigate war crimes.


On 26 June 2023, the Prosecutor General of Ukraine signed the Strategic Plan for the Implementation of the Powers of the Prosecutor’s Office in the Field of Criminal Prosecution for Conflict-Related Sexual Violence. Its purpose is to improve access to justice for victims of CRSV through the improvement of investigation and criminal prosecution processes.[18] Joint investigative teams (JITs) have been set up to investigate war crimes committed in Ukraine. These teams consist of prosecutors and investigators from Ukraine and other countries, and include digital tools to help gather evidence of war crimes.[19]


Prosecuting SGBV Crimes in Ukraine

The Ukrainian Criminal Code contains two articles which could be applied specifically to cases of conflict-related sexual violence. Paragraph 1 of Article 433 envisages criminal responsibility for violence against the civilian population in a conflict area, which may include sexual violence, and is punishable with three to eight years of imprisonment. Article 438 foresees criminal responsibility for the violation of laws and customs of war, which includes cruel treatment of prisoners of war or civilians (and thus may include sexual violence), and shall be punishable by imprisonment from eight to 12 years. Article 438 of the Criminal Code of Ukraine is often dubbed as a blanket provision by the human rights commentators. It provides liability for violations of the laws and customs of war (war crimes) and is usually invoked to cover sexual and gender-based violence. However, it contains no reference to the often gendered nature of crime, although it should be noted that SGBV can be carried out on persons of any gender.


Nevertheless, cases of sexual violence officially communicated by the Prosecutor’s office are investigated under Article 438, that is, as war crimes. The present provision seems to include common crimes for prosecution that do not cover all war crimes including rape, and/or other forms of sexual violence. It is thus void of any reference to SGBV. According to the statistics corroborated by the Ukrainian Women Lawyers Association JurFem, the absence of reference to ‘sexual crimes’ in the unified register of the pre-trial investigation system makes it difficult to discern how many cases refer to the act of sexual violence during the conflict.[20]


Further to this, over the course of March to May 2022, Ukraine’s prosecutorial body has opened over 14,000 criminal proceedings under Article 438 and 111 proceedings under Article 152 of the Criminal Code of Ukraine (“Rape”) punishable by three to five years and Article 153 of the Criminal Code of Ukraine (“Sexual Violence”) punishable by five years.[21] It can then be followed that the Office of the Prosecutor’s Office has qualified sexual violence committed during the conflict as rape (conducted in peacetime) under Article 152 as opposed to the war crime.[22]


Notwithstanding the fact that the ICC allows crimes committed during armed conflict to be tried as ‘ordinary’ domestic ones, criminal law commentators perceive that judging them as such is similar to denying a crucial contextual and systematic aspect to their acts. It can be viewed as a partial “unwillingness” to try the perpetrators for what they did.[23] According to Human Rights Watch, States should be aware that certain procedural or evidentiary rules that “effectively prevent the proper investigation and prosecution of crimes” may lead the ICC to establish an “unwillingness” by the state to take action.[24] Most importantly, the comparative ease of prosecuting domestic crimes, compared to international crimes, may wrongly motivate Ukrainian prosecutors to refrain from identifying crimes in their broader social context in favour of increasing the prospect of convictions. This raises two further issues.


Contrary to the existing statutory limitations adhered to invoking Article 152, under international law there should not be any period of limitation in any circumstances for prosecuting the perpetrators of SGBV, whether their crimes are carried out in times of peace or conflict. There is a difference in evidentiary burden too, including the absence of the requirement for the testimony of the victim to be otherwise corroborated in order for that testimony to be considered credible to secure conviction.[25] Finally there is a disproportionate difference between the sentence awarded to the perpetrators to appropriately punish the crime of genocide, crimes against humanity and war crimes. International law, however, prompts that sanctions are not proportional to the gravity of the crimes committed, so de facto impunity may arise.[26] Most importantly, Ukraine is under an obligation to analyse and report conflict-related sexual violence, including rape in situations of armed conflict, relevant to the implementation of Resolution 1888 (2009). By the same token, under General Recommendation No.19 of the UN Committee on the Elimination of Discrimination Against Women (CEDAW), state parties should encourage the compilation of statistics including the ‘effects of violence’.[27]


Crimes against humanity refer to specific acts committed as part of a widespread or systematic attack directed against any civilian population. These acts can include murder, extermination, torture, enslavement, persecution, enforced disappearance, and other inhumane acts. They can be committed in both times of war and peace, whereas war crimes are specific violations of the laws of war committed during an armed conflict. Moreover, crimes against humanity can be perpetrated against nationals of any state, including a state’s own citizens, if the state is involved in the attack. Otherwise, these are the norms reaching the ius cogens that require the state concerned to adopt necessary implementing legislation.[28] As a consequence the state in question may be held accountable in such cases when it fails to enact legislation.[29] For example, in 1998, the International Court Against Former Yugoslavia (ICTY), in its judgement against Anto Furundzija, acknowledged state responsibility if the maintenance or passage of national legislation that is inconsistent with international rules is evidenced.[30]


Since rape may constitute a crime against humanity as well as torture, war crime and genocide, its investigation requires the adoption of domestic criminal law. With a view to improving Ukraine’s criminal legislation on war crimes, the Parliament of Ukraine adopted a bill in May 2021,  that, among other changes, incorporated a detailed catalogue of war crimes into the Criminal Code of Ukraine. The bill, however, did not enter into force since the President of Ukraine had not signed it.[31] On 23 May 2022, a Kyiv appeals court tried a Russian soldier convicted for war crimes following the killing of a civilian under Article 438.[32] Convictions of other members of Russian armed forces for wilful killing, rape, sexual violence, torture and other violations also followed. This also included conviction of 53 individuals and 207 indictments for war crimes since 24 February 2022.[33]


Domestic war crime proceedings have been carried out in a number of countries including Bosnia and Herzegovina, where the prosecution and criminal sanctioning of war crimes was prioritised in the aftermath of the conflict in the early 90s. A decade after the end of the conflict, the focus shifted from internationally led efforts to pursue justice towards strengthening the capacity of domestic courts. This also included enhancing the capacity of the prosecutorial offices to ensure the continuation of the prosecution of war crimes.[34] This process however has been marred by the lack of harmonisation of the legislation and jurisprudence on international crimes throughout the country.[35] It then follows that even with the involvement of the ICC and prosecution by foreign countries, relying on the principle of universal jurisdiction, the Ukrainian authorities face a daunting task to prosecute war crimes committed during the current conflict internally. However, it is important that they do so in a fair and impartial manner and with adequate expertise.


Procedural Limitations

Ukrainian authorities have set up consultation points where lawyers deliver free legal aid and provide legal support to victims in order to lodge a complaint before the national Ukrainian law enforcement authorities, should they come forward. There is a plan to introduce a  draft  law “On the legal status of victims of sexual violence related to the armed aggression of the Russian Federation against Ukraine and the family members of the deceased persons.” This new law  will entail granting SGBV survivors  victim status as well as   the provision of compensation.[36] However, the UN Committee against Torture emphasised that this form of redress must be combined with a non-monetary reparation mechanisms, as money alone is not sufficient to repair the damage suffered by victims.The UN treaty body encourages a long-term, collaborative approach to ensure all aspects of the victim’s life have a chance for rehabilitation. This includes the provision of psychological and health services, as well as legal and social assistance and any other reintegration support. As suggested “rehabilitation for victims should aim to restore, as far as possible, their independence, physical, mental, social and vocational ability; and full inclusion and participation in society.”[37]


To overcome the inherent limitations to procedural guarantees, however, one needs to effectively prosecute sexual violence. Ukraine is yet to develop witness protection programmes, which is a problem since sexual violence complainants and witnesses are at particular risk, and are likely to refuse to participate at trial. Ukrainian authorities should ensure that trained female officers conduct witness interviews in cases where the victim is also female, that there is continuity in case management, and that the victim does not encounter the perpetrator at court. These steps are needed to limit the potential re-traumatisation of the victim.


There is a further requirement to collect necessary evidence and testimony to prosecute sexual and gender-based crimes, and therefore interviews with women and victims of sexual violence should be conducted in secure and confidential settings. On top of this, failure to allocate resources to gender sensitisation training to those conducting interviews with women and victims of sexual violence or recruitment of female law enforcement officers may account for the insufficiencies of the judicial system with respect to these crimes, which might result in the inability to prosecute. Further, the current constraints on state resources can compound the re-traumatisation, stigma, or discrimination experienced by the victims of SGBV, highlighting the need to increase capacity-building support offered by other states or individual donors to Ukraine.



The Ukrainian Government has taken some important steps in the right direction, including: developing a strategy for investigating sexual violence related to the current conflict; creating a special unit on SGBV; and enacting a draft law on compensation for the victims of conflict-related sexual violence.[38] However, more needs to be done to ensure that SGBV crimes are effectively prosecuted.


Specifically, the Ukrainian Government should accurately capture statistics on SGBV crimes. This will help to identify the scale of the problem and to target resources where they are most needed. It will also require training for law enforcement and prosecutors on how best to investigate and prosecute SGBV crimes in a victim-centric, trauma-informed, and gender-sensitive manner. Ukraine should also adopt a gender-sensitive legislation that defines SGBV crimes and provides for appropriate penalties. Finally, it should introduce Rome Statute standards into national law and prosecutorial practices for international crimes. This will help to ensure that SGBV crimes are prosecuted in accordance with international law.


By taking these further steps, the Ukrainian Government can help to ensure that those responsible for SGBV crimes are held accountable and that victims receive justice. In addition to the above, the Ukrainian Government can further:

  • Provide support to victim and witness units, including specialised training on SGBV crimes.
  • Create a comprehensive system for collecting and preserving evidence of SGBV crimes.
  • Establish a national SGBV database to track cases and provide data for research and policy development.
  • Promote public awareness of SGBV crimes and the importance of reporting them.


By taking these additional steps, the Ukrainian Government can help to create a more supportive environment for victims of SGBV and to ensure that SGBV crimes are effectively prosecuted.


Mariam Uberi is an FPC Research Fellow, Qualified Georgian criminal lawyer and a Human Rights analyst.


[1] Elements of Crime,

[2]Rome statute of the International Criminal Court,

[3]According to the declarations signed by the Ukrainian Government, the jurisdiction of the ICC in relation to its preliminary examination in Ukraine extends to events from 21 November 2013 for an indefinite period and includes prosecutions for any war crime, crime against humanity or genocide falling under the ICC’s governing law. Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the Statute.

[4] The ICC relies mainly on the cooperation of national institutions and officials for essential tasks such as gathering evidence, handling of witnesses, protection of victims and the detention and transfer of indictees. Global Rights Compliance. 2021. The domestic implementation of the International Humanitarian law in Ukraine. p14.

[5] Anna Kapur, Complementarity as a catalyst for gender justice in national prosecutions, The Oxford Handbook of Gender and Conflict, December 2017, pp. 225–239,

[6]ICC-OT, Report on the Prosecutorial Strategy, 14 September, 2006, see. Available at:

[7] Ibid.

[8] Ibid.

[9] Committee Against Torture (2012). General Comments No. 3 of the Committee Against Torture.UN Committee Against Torture (CAT), General comment no. 3, 2012: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Implementation of article 14 by States parties, December 2012, see:

[10] Eriksson, Maria. 2011. Definitions Rape: Emergings Obligations for States under International Law. Martinus Nijhoff Publishers.

[11] Ibid.

[12] UN GA Resolutions 1325 and 1820, see:

[13]UN Doc.S/RES/1325, 31 October 20000, SC Res. 1820 on Omen, Peace and Security, UN Doc. S.RES/1820, 19 June 2008,SC Res. 18888 on Women, peace and Security.

[14]Report of the Independent International Commission of Inquiry on Ukraine (A/HRC/52/62)[EN/RU/UK] (Advance Unedited Version), see:

[15]Report of the Independent International Commission of Inquiry on Ukraine (A/HRC/52/62)[EN/RU/UK] (Advance Unedited Version).

[16] Iryna Didenko, the prosecutor in charge of sexual violence cases of the Office of the Prosecutor General of Ukraine,  stats mentioned during the  the U4J conference in Bucha, available at: see: Anna Steshenko, Officially recorded 175 facts of sexual violence by the occupiers, – Office of the Prosecutor General,, March 2023,

[17] JurFem, Evidence in cases related to sexual violence at the International Criminal Court: The Ukrainian context, November 2022,

[18] ICC-OT, Paper on Some Policy Issues Before the Office of the Prosecutor, September 2003,

[19] Including Lithuania, Poland, Slovakia, Estonia, Germany, Sweden, Latvia, Norway, and France. See: JurFem, Evidence in cases related to sexual violence at the International Criminal Court: The Ukrainian context, November 2022,

[20] Ibid.

[21] Ibid.

[22] Ukrainian Women Lawyers Association “JurFem”, The analytical research ‘Gender dimensions of war’, April2023,,to%20restore%20justice%20for%20the

[23] Frederic Marget. The International Criminal Court and Complementarity: From Theory to Practice Implementation and the Use of Complementarity, p.384.

[24]Human Rights Watch, International Criminal Court, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute, vol.13, no 4 (G), 16, September 2011,

[25]Committee on the Elimination of Discrimination Against Women (CEDAW)No.19: Violence against Women, CEDAW General Recommendation No.19:Violence against women, 1992, see:

[26] Accountability: Prosecuting and punishing gross violations of human rights and serious violations of international humanitarian law – Report of Special Rapporteur on the promotion of truth, justice, reparation and guarantees (A/HRC/48/60) EN/AR/RU/ZH].p.12. (2021).

[27]Committee on the Elimination of Discrimination Against Women (CEDAW) No.19: Violence against Women, CEDAW General Recommendation No.19:Violence against women, 1992, see:

[28] Peremptory norm of general international law (jus cogens) is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted.

[29] Eriksson, Maria. 2011. Definitions Rape: Emerging Obligations for States under International Law. Martinus Nijhoff Publishers.

[30] Prosecutor v. Anto Furundzija (Trial Judgement), IT-95-17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), December 1998, see:,ICTY,40276a8a4.html

[31]Draft Law of Ukraine No 2689 of 27 December 2019 on Amendments to Certain Legislative  Acts of Ukraine on the Implementation of International Criminal and Humanitarian Law. See also Human Rights Watch, ‘Ukraine: International Crimes Bill Adopted’ (21 May 2021) in Nuridzhanian, Gaiane, Ensuring Fairness of War Crime Trials in Ukraine (July 18, 2023). Available at SSRN:

[32]RFE/RL.Life Sentence Handed To Russian Soldier For Killing Ukrainian Civilian Reduced To 15 Years. 29 July 2022.,to%20arise%20from%20Russia’s%20invasion.

[33]Nuridzhanian, Gaiane, Ensuring Fairness of War Crime Trials in Ukraine (July 18, 2023). Available at SSRN:,supra note 30.

[34]Visit to Bosnia and Herzegovina: Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (A/HRC/51/34/Add.2)p.8.


[36]Ministry of Justice::Sexual violence during war is  a war crime that does not have a statute of limitation. 5 May 2023..

[37]Committee Against Torture (2012). General Comments No. 3 of the Committee Against Torture. UN Committee Against Torture (CAT), General comment no. 3, 2012: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: implementation of article 14 by States parties, December 2012, see:

[38] Prosecutor’s Office, Strategic plan for the implementation of the the Powers of Prosecutor’s Office in the field of criminal investigation for sexual violence related to the conflict, June 2023, (in Ukrainian),

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