The Attorney General must understand the magnitude of the challenges ahead. Dealing with international crimes since 2016, I wish to draw the attention of the new Attorney General to several points that are crucial to building effective justice. The first is the preservation of institutional memory.
The Attorney General’s office should be engaged exclusively in the overall coordination of investigative bodies and proceedings regarding alleged international crimes. As prescribed by the Constitution of Ukraine. Under no circumstances can it substitute for the work of the preliminary investigation bodies or assume the functions of the National Police, the Security Service and the State Investigation Bureau. After all, the investigation of crimes committed in an armed conflict is above all their task.
In 2019, a special “War and Peace Department” was created within the PGO (the Department for the Supervision of Criminal Proceedings for Crimes Committed in Armed Conflicts). The Department has assembled qualified specialists who have sufficient experience and expertise to work specifically on international crimes. The essential task now is to strengthen the capacities of the Department, to make it a center for the coordination of research on the consequences of armed conflict. If before the large-scale invasion there was only the Prosecutor General’s Office of the Autonomous Republic of Crimea and the relevant units in the Donetsk and Luhansk regions dealing with war crimes, similar units must now operate wherever hostilities have taken place. In Sumy, Kyiv, Chernihiv, Kharkiv, Kherson, Zaporizhzhia, Mykolaiv, Odessa regions.
This can be done by establishing separate departments in the field, so territorial attachment will ensure a clear division of responsibilities.
The establishment of favorable conditions for the creation of similar departments in the investigative bodies largely depends on the Office of the Prosecutor General. It is the prosecution service that can significantly influence the creation of favorable conditions for the creation of similar departments within the investigative bodies. In this regard, the Attorney General’s Office should mainly rely on the work of the National Police as the main crime recorder and investigative body, as it has a wide range of field units and a large number of staff.
Documenting the consequences of armed conflict is now a top priority. We must record violations of the laws and customs of war as much as possible.
Put quality before velocity in war crimes cases brought before the courts. They must be fully interpreted in such a way as to leave no doubt about the objectivity and impartiality of the investigation process and its results. Recalling the first case – the trial of Russian soldier Vadym Shishymarin, which is currently being considered by the Court of Appeal, it is important not to repeat the mistakes made. Many international experts and Ukrainian human rights defenders have criticized the investigation of the case for the insufficient definition of the chain of command and the refusal to interview important witnesses. Ukraine, as a party to the conflict, will be questioned about its objectivity. Therefore, we must do everything so that there is simply no basis for such accusations. And society will understand if the PGO does its job without loud statements and informational pretexts, but qualitatively.
Prove the international nature of the conflict. Since February 24, the Russian Federation, using propaganda methods, has been trying to prove that the conflict is of a mixed nature (non-international and international at the same time). In this regard, an important task for Ukraine is to prove that the structure of the quasi-formations, their economy and their military infrastructure are fully integrated with those of Russia, and thus to prove that Russia exercises effective control over these territories.
It is necessary to create conditions for the preservation of evidence. The main problem is that entire towns and villages have become crime scenes. And the amount of evidence, accordingly, is enormous. At the same time, we observed how, in some places, journalists found themselves earlier than investigative bodies. This calls into question the process of preserving evidence. Given the coordinating role of the Attorney General’s office, a clear standard for crime scene work in armed conflict should be developed.
It is important that law enforcement apply international standards of evidence collection for effective cooperation in the future justice mechanism. The qualitatively collected evidence will also be useful for other state authorities, in particular – for the Ministry of Foreign Affairs and the Ministry of Justice, when representing the interests of Ukraine at international platforms, such as the United Nations International Court of Justice, the ECHR, arbitration on the law of the sea.
Strengthening of international cooperation. Ukraine needs coordinated, systematic and transparent cooperation with States which, within the limits of universal jurisdiction, are engaged in the investigation of alleged international crimes in Ukraine (and there are already more than 10 of them) ; with the International Criminal Court and the United Nations International Commission to Investigate Human Rights Violations Committed During the Russian Military Attack on Ukraine. Of course, we have to collect evidence on all episodes, but regarding the immunity of high officials, Ukraine will not be able to bring these people to justice for objective reasons.
And the ICC itself should play a key role. Given the Court’s limited resources, it should deal with the so-called “big fish” – senior Russian and Belarusian officials, politicians, and not ordinary soldiers, whose cases can be heard by domestic courts.
Cooperation with NGOs is important for the development of justice.
Non-governmental organizations should not be seen as competitors. From my experience, I can say that they can rather help in the investigation of international crimes. NGOs have tools that are not always available to state authorities: access to uncontrolled territories, state-of-the-art technologies, the most modern methods and applications of documentation and information collection, as well as multidisciplinary specialists within the personal.
In addition, NGOs try to document crimes according to international standards, which differ from national standards, and thus act as a certain trigger for law enforcement agencies and encourage their development.
Development of digital forensics. One of the main tasks of the investigation of international crimes is to establish a link between the crimes and their perpetrators. In conditions of armed conflict and temporary occupation of part of the territories, this is considerably complicated by the lack of access to the scene of the crime. However, in such situations, digital forensics comes to the fore. I have repeatedly pointed out that in today’s world almost everything has its digital footprint. It is much harder to destroy than traditional evidence, so we must use every tool possible to secure justice. From this perspective, digital forensics significantly complements traditional investigative methods, so it is important to have training programs for law enforcement for proper, systematic collection, storage and verification. and centralized digital evidence. The prosecutor’s office in this case, again, should coordinate the work.
Development of professionals. The need to develop the national justice mechanism creates a strong demand for professionals. Therefore, it is very important now and in the future to “invest” in the development of the professional skills of PGO employees, especially those in the field.