Punishment not only for Putin: How Ukraine needs to change its war crimes investigation system
Ukraine has been at war for more than 10 years. More than 2.5 of them have been full-scale. Every day, the aggressor continues to commit international crimes: shelling of civilians and civilian infrastructure, rapes, extrajudicial executions, abductions...
It is impossible to estimate the number of crimes against humanity and war crimes, as most of them were committed in the still occupied territory, to which there is no access. However, the existing amount is enough to speak of unprecedented challenges for the Ukrainian justice system. However, we must ensure effective investigations.
And we need to prepare the system for the moment when the number of documented reports of crimes will significantly multiply. Advertisement: One of the mechanisms that can help the investigation is a hybrid justice mechanism - when Ukrainian judicial and law enforcement agencies, as well as prosecutors, work with the full involvement of international experts experienced in armed conflict.
The author of these lines has been a supporter of this approach since 2019. However, realistically speaking, building a justice mechanism with an international element is more a matter of the future. In addition, it requires amending of the Constitution, which is impossible during wartime.
But the need to make the national justice system more efficient does not disappear.
The International Criminal Court will not help either, and the fact that Ukraine has passed a law ratifying the Rome Statute does not change anything. Even purely due to the fact that the ICC will be dealing with a small number of international crimes, only the key ones - the so-called "big fish" cases. The fact that more than 20 countries around the world are investigating alleged crimes through the principle of universal jurisdiction does not diminish Ukraine's need to have an effective national justice system that can investigate all 4 types of international crimes: aggression, war crimes, crimes against humanity and genocide.
We need to do this, among other things, to meet the huge demand for justice that exists in Ukrainian society.
Why do we need changes?
Statistical information on crimes committed in the context of the armed conflict allows us to draw certain conclusions. By the first half of 2024, more than 135,000 criminal proceedings had been registered under Article 438 of the Criminal Code (Violation of the Laws and Customs of War) for crimes committed after the start of full-scale aggression. Since 2016, about 30,000 more crimes have been registered.
According to the current CPC, this category of crimes should be investigated by the SSU, so they have the bulk of the proceedings - more than 115,000. But the National Police also has about 21,000 proceedings. Why is this happening?
It is important to understand that the entire territory of Ukraine is a crime scene, because the same missiles or Shaheds are being launched everywhere. Typically, police investigators and prosecutors are the first to arrive at the scene and document the incident.
But of these more than 135,000 "cases", most are at the initial stage. Since 2022, about 600 people have been notified of charges.
This is not surprising, given that the investigation of this category of crimes is hampered by the difficulty of identifying the Russian military who committed the crimes and bringing them to justice. This work is important, but we need to realise that it will take time. And in order for its effectiveness to increase, the international crime infrastructure needs to be transformed.
What criteria should a national system meet? First of all, the interests of victims should be at the core of justice. The justice system also needs to be trusted both domestically and by the international community, and comply with internationally accepted practices, so effective cooperation with foreign partners is required.
One of the necessary steps is to align our legislation with international standards. And this is where we need to be particularly careful. It's no secret that the upcoming ratification of the Rome Statute by the ICC is not enough: amendments to the Criminal Code and the CPC are also needed.
However, the relevant law recently adopted by the parliament is inconsistent: we copy the names and wording from the Rome Statute to formally comply with the requirements, but do not change the essence. Of course, crimes against humanity will appear in the legislation (which is good), but the provision on war crimes remains form-based, which means that investigators refer to about 30 different international treaties to justify the qualification. And some of these treaties date back to the 19th century...
Finally, there is the issue of complete specialisation in the architecture of the justice system - at the level of courts, prosecutors and law enforcement agencies.
What changes are needed
Let's start with the courts. In my opinion, the best solution would be to create a separate court (like the HACC for corruption offences or the so-called IP court for intellectual property rights). Let's look at the workload.
In 2023 alone, 5,539 cases and materials were submitted to criminal proceedings (including encroachment on the territorial integrity and inviolability of Ukraine; high treason, collaboration, and other crimes) (3,034 were examined). This means that the workload is objectively high. And it should be borne in mind that most cases are handled in absentia due to the lack of access to suspects.
Therefore, specialisation in international crimes is not less necessary. This will ensure the quality of investigations and court decisions that would gain the trust of international partners. In order to deal with this kind of cases, judges must undergo a transparent selection process and appropriate training.
And we already have motivated judges, so this path looks realistic. Of course, it is more complicated (it requires legislative changes and building infrastructure), but the trust in this institution and the expected competence are worth it. As for the prosecution authorities, back in 2019, I initiated the creation of the Department for Supervision of Criminal Proceedings in Crimes Committed in the Context of Armed Conflict (the so-called "War Department") in the then GPU.
It was this unit that was the first to systematically work with international crimes.
But now the scale of challenges and the scale of crimes are fundamentally different. Therefore, it seems reasonable to create a specialised prosecutor's office (similar to the SAPO or a specialised defence prosecutor's office). Accordingly, this department should be headed by a specialised Deputy Prosecutor General who will be able to focus on it (similar to the Deputy Prosecutor General - Head of the SAPO).
Among other things, such a deputy prosecutor general could be responsible for communication with international institutions and partners in this field, as this currently takes up the lion's share of the general prosecutor's time, and he still needs to coordinate the work of his other deputies and heads of law enforcement agencies. At present, different units are dealing with the consequences of the war (and doing so alongside other tasks), which creates the problem of different approaches to investigative methods, as well as a lack of priority for investigating international crimes. Not to mention the problem of lack of specialised knowledge.
The situation with the investigation seems to be the most difficult. As mentioned above, since February 2022, the SSU has registered more than 115,000 criminal proceedings under Article 438 of the CCU (Violation of the laws and customs of war), in which 390 people have been notified of suspicion. The number of criminal proceedings for crimes against the fundamentals of national security has also increased - there are now more than 17,000 such criminal proceedings (in 2020-2021, the number of such proceedings fluctuated around 2,600), which are also handled by SSU investigators.
And given our imperfect rules on collaboration, these figures may soon increase dramatically. Let's look at the official figures for the same period for criminal proceedings and the number of notices of suspicion based on them, which were recorded by other law enforcement agencies: The State Bureau of Investigation - 22629/4864 (additionally 73916/7528 - violation of the military service procedure), the Bureau of Economic Security of Ukraine - 4299/685; the National Anti-Corruption Bureau - 1136/395. It is also important to take into account the number of people who ensure the law enforcement functions of the state in their respective areas: SBI - 1,600 employees, ESBU - up to 4,000 employees, NABU - 700 employees.
Therefore, given that during the full-scale invasion the number of proceedings investigated by the Service has increased more than 20 times, the creation of a new institution seems quite reasonable. Because under the current workload, the pace of investigation of international crimes simply cannot be high. Moreover, the fact that the investigation of the most serious international crimes is now entrusted to the SSU is conceptually incorrect.
Talks about taking away the pre-trial investigation function from the SSU, which is not their characteristic and priority, have been going on for a long time and have strong arguments. But now, during the full-scale aggression, one of the arguments is gaining additional significance. The SSU is currently involved in countering the aggression, which makes it a party to the conflict.
Whereas investigative institutions should be primarily objective and impartial.
This is an additional problem in terms of international trust in our investigations. The creation of a new institution, with the right approach and transparent selection (with the participation of international partners), will resolve the issue of trust in such investigations. And the special status of the new institution should both help to resolve the issue of staff outflow and their competence, and help to ensure that investigators and operatives have access to conflict zones, where it is often necessary to collect evidence of war crimes as soon as possible.
Additional benefits of the new system
Changes to the system of investigating international crimes will have an additional effect.
In fact, Ukraine is now forced to look for and train specialists whose experience will be of interest to the rest of the world in the future. Working in a full-scale war is a challenging, but, forgive my scepticism, a unique experience. Therefore, in the future, specialised investigators, prosecutors, and judges will be able to work in international organisations and criminal justice institutions, in which it is very important for Ukraine to increase its role and authority.
In addition, Ukraine is now facing a large number of crimes that have not yet been fully assessed by international law. After all, modern warfare is significantly different from the Second World War, after which international treaties governing the coexistence of states appeared. Hybrid methods of warfare, new types of weapons and other new challenges require changes and development of international humanitarian law and preventive mechanisms.
And Ukrainian experts have to make an important contribution to the modernisation of international humanitarian law. In my opinion, the national system of investigation of international crimes should not only increase its efficiency, but also strive to become a full-fledged element of the future hybrid justice mechanism that will cover all international crimes committed on the territory of Ukraine, regardless of who committed them.
The creation of a specialised infrastructure for investigation, prosecution and courts is the best option available at present. However, compromise options may also be considered.
In particular, specialisation within existing bodies. For example, in the courts, specialisation could be implemented starting with the cassation court and extending to local courts and regional courts of appeal to address cases of crimes committed in the context of the armed conflict (Ukraine already has similar precedents in the field of juvenile justice). At the level of the prosecutor's office, this could include systematisation and enhancement of the work of the relevant department through the creation of a specialised prosecutor's office.
And at the level of the National Police, it could be the creation of a Department for recording, investigating and operational monitoring of crimes committed in the context of armed conflict. At the same time, it is better to choose a more complicated but more effective way - to build a full-fledged justice architecture for the most serious international crimes. We need to do this to ensure that as many victims as possible are restored to their rights and that the principle of the inevitability of punishment is implemented.
We also need to implement the principles of transitional justice and provide people with answers to questions about life during the war and after the achievement of peace.
Publications in the Expert Opinion section are not editorial articles and solely reflect the author's point of view
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