Training and Technology Support Justice Processes, But Challenges Remain
Authors of landmark study identify Ukrainian achievements amid ongoing hostilities.
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Tuesday, 28 November ‘23
This week’s overview of key events and links to essential reading.
Our research into judicial practice and the investigation of war crimes in Ukraine has highlighted a series of difficulties - but also some achievements.
Key challenges are the large number of crimes, the lack of an effective investigative mechanism and necessary resources, imperfect coordination between various bodies, which hampers the effectiveness of criminal prosecution, and the impossibility of inspecting the crime scene because of either ongoing hostilities or its location in temporarily occupied territories.
In Ukraine, violations of international humanitarian law are investigated under Article 438 of the criminal code. This is a “blanket article”, meaning that it defines the crime - but to determine its features it refers to the norms of another branch of law, regulations and instructions.
A key issue of pre-trial investigation lies in determining the liability of criminal offences against peace, human security and international legal order, which is established exclusively by the Security Service of Ukraine (SSU). In practice, however, war crimes are also investigated by the National Police (NPU) and the State Bureau of Investigation (SBI). As a result, courts may consider evidence inadmissible because it has been collected “in violation of the rules of jurisdiction”.
But there are also some positives. With specific training regularly carried out by international experts, the professionalism and skills of Ukrainian investigators and prosecutors have increased. Amendments are being made to Ukraine’s legislation, for example to improve the mechanisms of prosecution for war crimes, streamline their investigation and force the seizure of property of the aggressor state. The judiciary and law enforcement agencies are developing and implementing new methods for a more thorough and effective investigation of war crimes.
Investigators are increasingly using technology, digital evidence and open sources. Civil society is also playing an important role in gathering evidence and material collected by T4P (Tribunal for Putin), Bellingcat, InformNapalm, Truth Hounds can be used by investigators as an additional source of evidence.
Artificial intelligence is also increasingly important. Yuriy Belousov, head of the department for countering crimes committed in armed conflict, noted that the Clearview AI facial recognition system is being actively used, as it is the American Palantir system, which identifies specific objects on satellite images. These tools, however, are not available to all investigators and prosecutors and there is no unified, Ukraine-wise platform for information sharing. Most documentation remains on paper, the digitalisation of criminal proceedings is slow and has caused the loss of evidence in the occupied territories.
Prosecutors are increasingly combining so-called main criminal proceedings by territorial indicator. For example, all crimes committed in the village of Hostomel, Kyiv region, are combined into one proceeding and filed by single crimes. This allows all the evidence that can be used simultaneously for several episodes to be gathered in one place. This enables prosecutors to consolidate resources.
OCCUPATION, ACCESS AND PROTECTION
It is nearly impossible to investigate in the occupied territories. Collection and recording of evidence begins after de-occupation and this inevitably delays the pre-trial investigation; it is not rare that evidence is spoiled, destroyed or disappears
When the invasion started the law enforcement system was unprepared to deal with such a large number of crimes, and after the de-occupation, this lack of expertise surfaced. It showed disorganised work, poor evidence gathering and recording. This included not conducting autopsies or recording injuries, destruction of property and the re-traumatisation of victims and witnesses. There were constant changes of responsibility as well as chaotic, inconsistent and unsystematic storage of materials.
Storing such amounts of evidence is another challenge. We personally saw many cars, evidence in criminal proceedings, stored in an open air area which was easy to break into. The cars looked dusty, overgrown with weeds and the blood on the exterior vents had been washed away by the rain. We have also encountered unpacked fragments of weapons and other evidence lying on office floors and corridors. Investigators themselves complain about the lack of transport for physical evidence and poor storage conditions.
Then you have the witnesses and victims. Some have moved abroad, others are in temporarily occupied territories or often change their place of residence within Ukraine. As time passes, it becomes more difficult to contact them and their memory of the events fade. Ukraine’s criminal procedure code does not allow conducting any investigative actions with a person remotely, such as interrogation or identification.
In summer 2023, the office of the prosecutor general created a coordinating centre for the support of victims and witnesses in war crimes cases. Services include information about the proceedings’ progress and results, clarification of their rights and counselling on the risk and prevention of secondary and repeated victimisation. There is also referral to psychological, medical and social assistance, physical support in court, assistance with travel and temporary accommodation for those who need a safe place due to the imminent risk of intimidation and retaliation. The centre however has not yet started its full-fledged work.
Little to no attention is paid to the safety of lawyers who take on the defence of people accused of war crimes or related issues, like collaboration or treason. Reports of damage to property or threats to their life are not rare. In addition to physical threat, there is the psychological pressure and reputational damage as people identify them with their clients. They should receive safety guarantees, psychological support, decent remuneration; more awareness among society is also needed. Lawyers from the free legal aid centres take on the vast majority of war crimes cases and in most cases they cannot refuse the task. In cases in absentia, the lack of a defence attorney or formal participation carries a significant risk of non-compliance by the state with guarantees of a fair trial and non-recognition of our court decisions by the international community.
LIMITATIONS OF COOPERATION
Since the start of the war, Ukraine's national judicial practice gained significant experience. In 2022, national courts processed dozens of cases.
There is debate over the capacity, qualification and impartiality of Ukrainian judges to prosecute international crimes. Ukraine’s justice system, however, should play the main role in the process of bringing war criminals to justice. Unlike international courts, where cases are considered for many years, Ukrainian courts can be more efficient and effective in hearing the case and issuing sentences within reasonable time frames, according to the "beyond reasonable doubt" standard of proof.
That said, there are shortcomings. For example, Ukraine’s criminal legislation is not in line with the provisions of international criminal law enshrined in the Rome Statute, which founded the International Criminal Court (ICC) and Kyiv has not ratified; as a result applying the procedure of cooperation with the ICC has certain limitations.
In proceedings for war crimes, Ukrainian judges take into account the experience of other countries. However, many cases are unique, with elements specific to this war. This legal process creates precedents and new Ukrainian judicial practice regarding the consideration of international crimes.
Currently, the national prosecution system works with all types of crimes known to international criminal law, namely: violations of the laws and customs of war, that are war crimes, crime of aggression, crimes against humanity and the crime of genocide.
Ukrainian criminal law however does not include “crimes against humanity", hence investigations for those crimes can only take place with foreign partners, in accordance with the provisions of international criminal law.
Bringing Russia’s military and political leadership to justice is a matter for the ICC and the future Special Tribunal for the Crime of Aggression. As for the prosecution of ordinary military personnel and military leadership for crimes on the territory of Ukraine, the scope of cooperation with other states, within the limits of universal jurisdiction, is increasing.
Not all changes and addenda to the criminal code are perfect, but work is underway.
Anna Kozmenko and Natalya Voynova are lawyers of the Center for Strategic Affairs of the Ukrainian Helsinki Human Rights Union, and Ievhen Krapyvin is a criminal justice expert at the Center for Political and Legal Reforms. They co-authored International crimes in Ukraine: an overview of national investigation and judicial practice
