European Commissioner points to impossibility of amnesties within peace process for serious violations of humanitarian law – memo
Michael O'Flaherty, the Council of Europe Commissioner for Human Rights, notes that discussions on achieving peace in the Russian-Ukrainian war may raise the issue of amnesties. However, international law does not allow for general amnesties for serious violations of international humanitarian law. Such violations are not subject to a statute of limitations.
"There is a growing trend in international law to regard amnesties for grave breaches of fundamental human rights as unacceptable, because they are incompatible with the unanimously recognised obligation of states to prosecute and punish them. The Commissioner supports this conclusion and considers that political leaders should not approve amnesties for grave breaches of international humanitarian law or any other proposals which may result in impunity for such acts," says the memorandum on human rights elements for peace in Ukraine, published by European Commissioner O'Flaherty on the website of the Council of Europe Office in Ukraine on Wednesday.
The Commissioner believes that accountability is not only crucial for correcting past injustices, but also serves as a promising measure aimed at ensuring peace and stability in the future.
He also notes that criminal justice alone will not be enough, and any peace negotiations can pave the way for further transitional justice initiatives and mechanisms, based, in particular, on the right to the truth. "This could also mean drawing on non-judicial measures, such as truth telling, memorialisation, reconciliation, and guarantees of non-recurrence. These measures should be adequate to the context of an inter-state conflict as a means of addressing the wartime legacy of gross violations and abuses of human rights and serious violations of international humanitarian law. This is particularly relevant from the point of view of the victims of the war," the document notes.
Perpetrators of gross violations of international human rights law and international crimes must be held to account. The Commissioner considers that this principle should be made a key element of any discussions around a just and sustainable peace, and any possible future peace negotiations must not compromise on it.
On the other hand, the Commissioner expresses concern about the criminal prosecution by the Ukrainian authorities of individuals residing in Ukrainian-controlled territories, including de-occupied areas, and its territories occupied by the Russian Federation, for alleged collaboration with the Russian occupation authorities, based on overly broad provisions of Ukrainian criminal law. He believes that relying on an overly broad understanding of the concept of collaboration could provoke tensions and hostility, dividing communities in occupied or de-occupied territories and jeopardising future efforts at reintegration and reconciliation.
"An analysis of court rulings, carried out by the OHCHR, found that some defendants in collaboration cases were convicted for performing work that may be lawfully required by the occupying power under international humanitarian law," the document notes.
The European Commissioner invites the Ukrainian authorities to consider other transitional justice measures, alternatives to criminalization, that can serve the purpose of protecting national security and preventing impunity, while restoring peace and preserving social ties between people who have suffered from Russian occupation.
