Olena Protsenko remembers exactly where she was on Feb. 23, 2022, when she heard that the unthinkable had become Ukraine’s reality. She was putting her 8-month-old son to bed in her Charlottesville apartment while her husband watched the evening news. He came into the room and whispered into her ear that Russian President Vladimir Putin had declared a “special military operation” in their homeland.
It was already 5 a.m. on the 24th in Ukraine. “I called my aunt and told her that the war had started,” Protsenko said.
“I can hear it,” her aunt replied, through tears.
A year later, Protsenko is waging her own battle, working as a staff attorney through the International Human Rights Law Clinic at the University of Virginia School of Law and marshaling the efforts of students to hold Russia accountable for possible war crimes.
A Human Rights Lawyer Abroad
As Russia shut off electricity and gas supplies across the country in the first weeks of the war, the news and social media became Protsenko’s only connection to her family, who spent a solid month huddling in the dark, cold and damp basement of their apartment building in the Donbas region near the city of Mariupol, since destroyed by Russia.
“The Russians were trying to advance from the north, from the south, from the east, so the entire territory of Ukraine was randomly bombed,” Protsenko recalled. “You couldn’t really understand, ‘Is your family in danger or should they stay there?’ Is it safer to try evacuating under the fire or wait where they are? What if they are attacked when trying to evacuate? Should they try to go to Europe? What do you do?”
In the invasion’s first few weeks, Protsenko remained fixated on news out of her homeland. She forgot to eat, and lost weight. Her husband took up smoking. She gathered enormous collections of donated goods and clothing, not realizing that shipping companies were overloaded with humanitarian aid.
Then, two weeks after the war started, she realized she could do something – maybe something that could have a significant impact.
“I suddenly remembered I’m a human rights lawyer,” Protsenko said with a smile.
Protsenko had moved to the United States in 2019 as a Fulbright Scholar studying international human rights law while earning her Master of Laws at the University of Indiana’s McKinney School of Law. She has been in Charlottesville since 2020, archiving oral histories about the Soviet use of punitive psychiatry to suppress dissent as part of a postdoctoral research fellowship with UVA Law professor Richard Bonnie.
But before arriving in the United States, Protsenko represented Ukrainian victims of human rights violations committed by Russian forces and pro-Russian militants during the 2014 invasion of eastern Ukraine and the annexation of Crimea.
“One of my first clients was the family of a girl I used to play with growing up; she lived next door to my grandmother,” Protsenko said. The girl, now 20, perished when the civilian bus she was riding in the Donetsk region was fired on as it passed through the Volnovakha checkpoint.
“Everyone on her side of the bus died,” Protsenko said. “She was the youngest person on that bus.”
Protsenko filed the family’s lawsuit against the Russian government in the European Court of Human Rights, which had jurisdiction over Russia since it joined the Council of Europe and signed the European Convention on Human Rights in 1998.
That case, filed in 2015, has yet to be communicated to Russia, which was kicked out of the Council of Europe last March after invading Ukraine. The court retains jurisdiction over cases arising up to six months after Russia left the council.
An Opportunity at UVA
Once Protsenko pulled herself away from the invasion news and located her family – which took a month – she reached out to professor Camilo Sánchez, director of UVA Law’s International Human Rights Clinic. The school hired her as a staff attorney, allowing her both to work on behalf of Ukrainian victims and to offer students a once-in-a-lifetime work experience.
Protsenko filed her first lawsuits related to the current war in June 2022 – one on behalf of the family of a woman who was shot while riding a bike in Bucha, and another on behalf of a 9-year-old child who survived being shot in the neck at a Russian checkpoint.
Currently, her lawsuits are not part of the International Human Rights Clinic’s curriculum, but that hasn’t stopped UVA Law students from flocking to help further the cases.
Upon recognizing the potential of Protsenko's litigation to serve as a valuable teaching tool for international law, Sánchez put out a call for eight pro bono volunteers to help her work out two preliminary issues that could block the victims from having their day in the European court: exhaustion of domestic remedies in Russia and its jurisdiction over the human rights breaches in Ukraine.
“Lena is a skilled and committed attorney who is actively engaged with one of the most urgent legal and humanitarian issues facing our world today,” Sánchez said. “The chance for students to work alongside her and gain insight from the cases is invaluable.”
Twenty-five students responded, which was more than Protsenko could manage at this point in her litigation efforts. Eight joined her team.
As a legal matter, two European court rulings live on Protsenko’s desk and in her mind.
In the controversial interstate case of Georgia v. Russia (II), the European Court of Human Rights held that it had no jurisdiction over events that transpired during the Five-Day War that occurred when Russia invaded Georgia in August 2008. The court said that the so-called “context of chaos” during active hostilities meant that neither state had control over the affected area and therefore neither could be held liable for the civilian killings committed during that period.
“This decision can be very detrimental to our case, because if neither party has jurisdiction in that context, then who is accountable when a country’s been invaded?” Protsenko said. “For many people, the European Court is the last remedy they can access because there is no justice they can find domestically.”
However, Protsenko was quick to point out that the facts are different in her cases, which is where the second document on her desk comes in. Issued in January, the European Court’s decision in Ukraine and the Netherlands v. Russia concerns Russia’s responsibility for the 2014 downing of Malaysia Airlines Flight 17 over Eastern Ukraine. The court concluded that, because Russia effectively controlled the self-proclaimed separatist “republics” and the Buk surface-to-air missile was launched outside of the “context of chaos,” the European Court has jurisdiction.
“The court said it can hear the case because the plaintiffs would find no effective remedy in the Russian justice system,” Protsenko said.
The students who volunteered to help with Protsenko’s cases each spent at least 50 hours doing legal and factual research to distinguish her clients’ cases from Georgia v. Russia and to analogize them to Ukraine and The Netherlands v. Russia. Stewart Lawrence, a first-year student, helped narrow the “context of chaos” argument and Russian-speaking first-year law student Megan Chapelle researched Russian laws that shield their war criminals from responsibility.
Most of Protsenko’s cases involve Ukrainian civilians shot by Russian soldiers or kept in Russian captivity in inhumane and degrading conditions. Other cases deal with extrajudicial executions, including the family of a village mayor from the Kyiv region allegedly taken into a nearby forest, tortured and killed.
“There is no circumstance under which one can be tortured or extrajudicially executed,” Protsenko said. “Combatant or not, it is not allowed under any circumstances.”
Another group of clients are the survivors of Russian air raids in Mariupol, forced at gunpoint to leave the city and transported to Russia. They later escaped to Europe, she said.
The students reported their findings at a confidential roundtable meeting in late January and discussed how it felt to work on human rights litigation even as the atrocities are still unfolding.
“There are people fighting in Ukraine right now, so I’ve found it very frustrating to just be going to classes and feeling like I wasn’t really doing much,” Lawrence said at the roundtable. “I know our work here is a small contribution, but it’s a good feeling to give what we can.”
Master of Laws student Yali Liang said Protsenko’s passion for human rights resonated with her.
“Working on this program means a lot for me,” Liang said. “This is not just about a legal practice, but also about doing something meaningful.”
The students also expressed frustration at the procedural hurdles and the pace of justice in the European Court of Human Rights – a court whose decrees the Putin regime is unlikely to recognize. Protsenko understands that frustration and counsels her clients to take the long view.
“I told all my clients that you can either do nothing or you can act and be optimistic that whoever comes after Putin will care about international law and will do everything they can to be accepted back into the democratic world,” Protsenko said. “But even if the victims don’t get the money from Russia, they still get moral satisfaction – an acknowledgement of their pain and Russia’s responsibility for their suffering.”
March 22, 2023