Russian aggression against Ukraine did not begin on February 24, 2022, but back in 2014 — with the annexation of Crimea. However, at that time, Ukraine had no experience in war crimes investigations. Ukraine's path to justice, obstacles and peculiarities of establishing the work of law enforcement agencies in the conditions of a full-scale war, further in the material.
Since the full-scale aggression of the Russian Federation has begun on February 24, 2022, "war crimes", "crimes against humanity" and "genocide" became almost the most frequently used phrases in the Ukrainian and Western informational agenda. All of those are international crimes.
If the facts of genocide and crimes against humanity arguably have yet to be proved before international justice institutions, war crimes have undoubtedly taken place in Ukraine before. As Russian aggression has been ongoing for 8 years now, beginning with the occupation of Crimea and armed conflict in the East of the country. However, before the full-scale invasion, the war crimes category was not so widely known in Ukraine. This is not a coincidence. The Ukrainian Criminal Code has merely one Art. 438 dedicated to the violation of the laws and customs of war. Before 2018, when the conflict had been ongoing for 4 years, only 21 criminal proceedings had been registered.
Then, the world was shaken by footage from Borodyanka, Bucha, Mariupol, Kharkiv, Izium and Kherson, and other mutilated Ukrainian cities. The coverage of the tragedies shifted to the political plane, and punishment for criminals is perceived as something obvious. In fact, that’s not. This is meticulous, practical work in extremely difficult conditions of the most violent war in Europe since WWII aimed at the investigation and preparation of thousands of war crime cases for judicial proceedings. Apparently, for the National Hybrid Mechanism of Justice as well on the possibility of creation of which was said in a statement of the European Commision on November 30.
[BANNER1]The National Hybrid Mechanism of Justice envisages the involvement of international experts and the application of leading practices in the legal field of Ukraine to all stages of criminal proceedings from pre-trial investigation to trial, prosecution and judicial proceedings for international crimes, such as war crimes, genocide and crimes against humanity. The Mechanism could also include the possibility of considering the crime of aggression, but at the moment, it probably will not be extended to this crime, since work is being carried out separately on the creation of the Tribunal for Aggression in Ukraine.
When and how international crimes emerged in Ukrainian practice
In the judicial practice of European states, international crimes have a special place at least since the end of the Second World War. However, the recognition and persuasion of those crimes took all the second half of the 20th century to get implemented in the national legislations. Due to the influx of refugees from Africa and the Balkans fleeing wars, in the early 2000s specialized units in the system of border and law enforcement agencies for the investigation of international crimes were established in Germany, the Netherlands, Denmark, etc.
Ukrainian law enforcement agencies have not faced such problems. This led to the following issue: until 2016, most crimes in the temporarily occupied territories of Donetsk and Luhansk regions and Crimea were classified as ordinary crimes: murder, rape, terrorist attacks, participation in terrorist organizations, creation of illegal armed groups, illegal deprivation of liberty or kidnapping, treason etc. Therefore, the experience of the already mentioned European countries was taken into account when creating the Department for the Investigation of War Crimes in the Office of the Prosecutor General of Ukraine. In particular, regarding the extradition of suspects, the transfer of case materials to other states, and the collection of evidence from territories with limited access.
After having reestablished the work of the Autonomous Republic of Crimea Prosecutor’s Office in 2016 and having created the Department of Supervision of Crimes in the Conditions of Armed Conflict (The "War Department") within the structure of the Prosecutor General's Office of Ukraine, the Ukrainian law enforcement agencies began not only to prepare materials for Ukrainian courts, but also to apply international humanitarian and international criminal law, and either separately or in cooperation with other state authorities, prepare materials for institutions of international justice: the UN Court, the International Criminal Court, the ECtHR, commercial arbitrations. Collected evidence and witnesses’ testimonies, probably under certain conditions, can also be used in the work of the future national hybrid mechanism of justice, or the tribunal on aggression. To this end, the systematization of such cases and their investigation according to uniform standards as jus in bello crimes, and the systematic professional training of personnel to work on the investigation of international crimes was initiated.
The work of the "War Department"
Russia’s attempt to create "Novorossia" in 2014 in Ukraine was not aimed only at Crimea, Donetsk and Luhansk Regions, but at other cities of Ukraine too. Instigations took place in Dnipro, Zaporizhzhia, Mykolaiv, Odesa, Kharkiv, Kherson and led to unrest and victims. In March-May 2014, attempts to create pro-Russian "people's republics" with the open or covert support of the aggressor country took place in each of these regions. Since the creation of the Department, these events and facts have become the focus of its attention as well.
Since 2018 law enforcement have been documenting every shelling of the civilian infrastructure in Donbas. Since 2019, work has begun on the collection of data on all criminal proceedings where a Russian trace was recorded through operational measures. The General Prosecutor’s Office Department for the Supervision of the Investigation of Crimes Committed in the Conditions of Armed Conflict organized a consistent recording and investigation of serious violations of international humanitarian law. At that time, 7% of the territory of Ukraine was under temporary occupation, but the nature of the occupation was different. If in Crimea the annexation took place, in Donbas control was taken by proxy forces that were supposed to imitate an internal conflict with Ukrainian government forces. Therefore, in 2020, departments for work with the Autonomous Republic of Crimea and Separate Districts of Donetsk and Luhansk Regions were created. Subsequently, in the prosecutor's offices of the Donetsk and Luhansk regions, departments of procedural management in the investigation of international crimes were created. This was a step to ensure and develop institutional memory.
Thanks to the materials collected by these units, the Office of the Prosecutor of the International Criminal Court in its reports from 2016 to 2020 recognizes the existence of war crimes and crimes against humanity systematically committed by the occupation administration of the Russian Federation in the uncontrolled territories. Thanks to the work in the investigation of the downing of flight MH-17, the court in the Netherlands already recognizes that the proxy forces in Donbas were controlled from Russia, which opens up even more opportunities to compensate Ukraine not only for losses from February 24, 2022, but also from 2014 .
It is important that crimes in the temporarily occupied territories began to be reasonably qualified under Article 438 of the Criminal Code of Ukraine as war crimes, and not as terrorism. And not only in Crimea, where the fact of occupation is recognized by the international community and the Office of the Prosecutor of the International Criminal Court, but also in the East of Ukraine. Thus, all these changes strengthened Ukraine's legal position regarding the application of international humanitarian law to serious crimes related to the armed conflict/occupation of Crimea and Donbas.
Today's challenges and how to solve them
At the same time, today there are a number of legislative problems regarding the correct classification of crimes, their investigation and the procedure of court proceedings against the accused. Problems with the implementation of provisions of international humanitarian law and international criminal law into the national legislation of Ukraine are of primary importance today. In particular, there are still no provisions on "crimes against humanity", and the category of "war crimes", as already mentioned, is regulated by only one article. Therefore, law enforcement officers and prosecutors are forced to refer to international treaties when qualifying crimes, which not only slows down the work, but can also lead to a violation of the rights of suspects, and subsequently the right to a fair trial. And it also requires every investigator in every small settlement to have a fairly deep knowledge of the norms of international public law. In addition, the recent amendments to the Criminal Code of Ukraine regarding cooperation with the International Criminal Court contain a caveat that it will be carried out only in relation to citizens of the Russian Federation, which does not correspond to international practices and will affect the perception of the fairness of the Ukrainian courts’ decisions of in the world.
In addition, the need for practical implementation of international standards regarding the determination of the status of witnesses and their protection is more than urgent in Ukraine. In particular, it refers to specific instruments, such as Recommendation No. R(87)21 on assistance to victims and prevention of victimization of the Council of Europe. One of the primary tasks is to create a psychological assistance service for victims and witnesses on the ground and to avoid repeated interrogations. This will not only protect them, but also allow to get objective evidence, because it has been proven that after several interrogations, people simply start to get confused in their words. Especially if it is about particularly severe violence.
The creation of a witness protection program should also be included in this block. After all, in the conditions of an armed conflict, testifying about the facts, for example, war crimes, cooperation with the occupying power, etc., can create extraordinary risks for both witnesses and victims. And this is of particular importance in the context of EU integration, where such standards have been in effect for many years.
In addition, in the prosecutor's office of each region of Ukraine, where hostilities are taking place, directions for working with international crimes should be initiated. Activities in these directions will involve the creation of "hubs" for the coordination of investigations conducted by the National Police and the Security Service of Ukraine (SBU), as well as other law enforcement agencies regarding war crimes.
According to the Criminal Procedure Code of Ukraine, war crimes are subject to investigation by the Security Service of Ukraine. However, given the number of employees of the SBU and the National Police, it seems that their efforts should at least be combined, and at most - criminal cases related to war crimes should be transferred to the National Police. It is especially important to develop this direction in the National Police, given the scale of crimes and destruction. Soon, the SBU might be reformatted more into a Western like special service with a staff of 17,000 people, rather than an investigative body. For comparison, in 2021, more than 130,000 people served in the National Police.
[BANNER4]Such coordination will contribute to the creation of a sustainable practice of investigating criminal proceedings related to crimes committed in the context of armed conflict. And it will help prevent cases from being "transferred" from one body to another and ensure that they are handled by professionals who have relevant knowledge and skills in the application of international law and the use of internationally recognized standards of evidence.. The prosecutor's office, for its part, should not take on functions that do not belong to it, namely, to investigate crimes. This function should be performed by pretrial investigation bodies.
Gyunduz Mamedov – Expert of National and International Criminal Law, PhD of Law, Deputy Prosecutor General of Ukraine in 2019-2021
Iryna Marchuk - Associate Professor at the Faculty of Law at the University of Copenhagen.