Key Challenges in Prosecuting War Crimes

Tuesday, 19 December, 2023

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Olga Golovina

Editorial Coordinator

Klaus Hoffmann is a German senior prosecutor of the Advisory Group for the Investigation of the Most Serious International Crimes, a joint project of the US, EU and UK that supports Ukraine’s prosecutor’s office. He told IWPR’s Olga Golovina that it would be a “huge step” in investigating and prosecuting war crimes if Ukraine were to ratify the Rome Statute. 

What key challenges have you noted regarding court processes in Ukraine? 

We know that there are about 2,000 judges posts vacant at the moment and there has been a lot of work done to support the judiciary to finally fill those positions. There are some moving in the right direction to employ new judges. But still 2,000 judges are missing. This is already a big issue. 

On top of that, what we see is obviously that most of the judges have a huge workload already even without the war crime cases.

Each judge has between 1,000-2,000 cases. Nobody will be able to do that even without being under war conditions. I hope that will be easier once the posts will be filled, maybe. In terms of organisation, what we have seen in Irpin for example is that war crimes cases were filed in the daily court schedule but with very short [time slots] for the war crimes trial. 

What we have also seen is that there is still no real support for victims and witnesses. We have seen a number of witnesses or victims present [at each hearing] and they do not really know what is happening and why they are coming. 

Yet another challenge is the overwhelming number of cases. Currently, we need to find criteria by which to prioritize cases. 

What opportunities for positive change have you identified that could improve the system?

One aspect that we are discussing is whether or not there should be some specialised judges or courts for war crimes. There are some good arguments for specialisation, so when there are a few judges who can focus on these cases, who can gather more experience, who can get more training and then maybe spend more time on these cases.

In terms of court administration it would be more efficient that judges should have very concise and comprehensive hearings of one case for one to three days. 

For some of the cases it is better to wait and not rush to court now because some of the good evidence will come up later. I am talking about documents, witnesses especially if it is about the command or the political leadership. Sometimes it is really worth waiting. 

I said to some of the prosecutors, you need some public campaign to explain your work. “Dear people, we are investigating all these crimes, we are documenting everything the best we can, we also get support from international partners but now is not the right time to go to court with most of the cases. The point is to get much more evidence over the next few years.”

People would understand. Some NGOs have reported to me that not every victim is satisfied with trial in absentia because it is often a very speedy process. 

How is the Atrocity Crimes Advisory Group (ACA) supporting the investigation of war crimes in Ukraine during the ongoing war?

There are five different organisations under that umbrella. I am part of a team that is run by Georgetown University in Washington, completely funded by the US State Department. 

We help in various ways; there are a number of different trainings ongoing. We do some case reviews, where my colleagues [focus] on specific cases and talk about them with prosecutors and give feedback directly. 

A lot of the stuff that we did over the first 18 months was abstract, legal or practical advice to give a better understanding on genocide, war crimes or a crime of aggression - what is needed under international law to prove those cases. 

We also give advice on questioning prisoners-of-war (POWs). We had a number of military prosecutors and analysts who drafted questions for POWs to elicit key information. 

With our support, a new unit has been formed at the office of the prosecutor general for witness and victim support. They have 30 new staff members. The initial training of these people has started. We have brought an expert from Bosnia with 20 years of experience. 
We have started more recently to work with regional prosecutors. We have working groups of different partners to work with prosecutors from Donetsk, Luhansk, Kharkiv, Kyiv region, Kherson, Mykolaiv and Zaporizhzhya.

What strategy does Ukraine need to build cases against the Russian leadership?

This is obviously very different from judging the individual soldier who killed one civilian on a street in Bucha. The key problem is that you have to collect a lot of evidence from different areas. Another issue is how to link individual crimes on the ground to the commander. You may not see proper orders to go out and kill civilians. You have to build on evidence on the circumstances, the systematic approach if it happened again and again. In many villagers you see torture chambers, cases of sexual violence. 
It involves more experts - military, political, language experts   to really form the pictures of war crimes. You need to understand the military structure - how the Russian army is organised, the line of command, how much flexibility is on the ground. You need to analyse documents to see who was de facto in charge. 
For the political leadership it is even more complicated. That is always much more difficult to prove guilt. You have to analyze their speeches. It is good to have experts on board for that - how propaganda affects the soldiers and commanders. 

What legal changes would you suggest? For example, Ukraine's criminal code lacks the concept of command responsibility.

Many of us, international partners, have been lobbying for the implementation of the Rome Statute of the International Criminal Court (ICC). It is still the key issue. I do understand that it is a tricky political issue at the moment. But legally there is hardly any argument against it. It would be a huge step for Ukraine to sign and ratify the Rome Statute and to implement it in the Ukrainian criminal code especially when it comes to command responsibility, crimes against humanity which are not in the criminal code yet at all - but also in defining specific war crimes in Article 438.