Ukraine: International Support for War Crimes Investigations

As unprecedented efforts to prosecute war crimes in Ukraine continue, national prosecutors are integrating international expert and technical assistance into a domestic system facing huge pressure.

In almost a year since the full-scale invasion began, the office of the prosecutor general of Ukraine has registered some 68,000 alleged war crimes committed by Russian forces.

Based on the latest information from Eurojust, the European agency that liaises with the law enforcement and judicial bodies of member states, investigations into Russian war crimes are currently underway in 21 countries, as well via organisations including the International Criminal Court (ICC).

However, there is no doubt that the majority of offences will be investigated by national courts, with international support including expert consultation and advice on technical issues, as well as the use of specialist equipment.

Zera Kozliyeva, deputy head of the department of international legal cooperation at the prosecutor’s office, explained that this work was facilitated via the Atrocity Crimes Advisory Group, created in June 2022 by the EU, the US and UK.

“In addition, we contact the competent authorities of other countries - our partners - if we need certain specialists or some equipment,” she continued, adding, “Specialists from France, Spain, and Slovakia have already arrived in Ukraine on such expert missions. Usually, these foreign experts work in Ukraine for between one and three weeks.”

For example, French specialists provided a mobile DNA laboratory to Ukrainian law enforcement officers, which they tested for the first time in Izyum, Kharkiv region, after the liberation of the city in September 2022. A mass grave was discovered on the outskirts of the city containing 447 human bodies.

Kozliyeva said that the presence of such a laboratory had significantly accelerated the process of identification, and that the French team also brought with them equipment for the DNA analysis of bone tissue.

“It is used when the bodies are badly burned, there is no soft tissue on the body and it is practically impossible to identify the person,” Kozliyeva explained. “We could not carry out such examinations because we do not have the appropriate equipment. That's why our partners helped us a lot.”

A complicating factor is that Ukrainian legislation does not provide for the involvement of foreign citizens in the direct investigation of crimes committed on the territory of Ukraine. This means, for instance, that expert opinions cannot be used as evidence in Ukrainian courts.

However, this does not apply to situations where prosecutors or investigators involve foreign experts in specific investigative actions, for example, the inspection of a crime scene.

Kozliyeva gave the example of how 3D scanners provided by international partners had been used in documenting a crime scene.

“The [legal] examination itself is conducted by an [Ukrainian] investigator or a prosecutor. He draws up a report of the inspection of the scene of the incident, but photos or video images taken with the help of these scanners are attached to it,” Kozliyeva said.

JOINT INVESTIGATION

Last March, a joint investigative group was created to investigate Russian crimes committed on the territory of Ukraine.

In addition to Ukraine, it now includes Lithuania, Poland, Estonia, Latvia, Slovakia and Romania - all states which have gathered a large amount of evidence from Ukrainian refugees. They make up the largest investigative group operating within the Eurojust framework.

Eurojust was allowed to accumulate, process and store evidence of war crimes committed in Ukraine, including satellite images, photographs, video and audio recordings, DNA indicators and fingerprints.

Kozliyeva said that the cooperation within the framework of the joint investigative group enables law enforcement agencies of member countries to quickly exchange information on investigations. Outside this group, law enforcement officers rely on legal assistance regulated by treaties between countries, and Ukrainian officials have to send requests in what is usually a complicated and lengthy procedure.

Eugene Krapyvin, an expert with the Centre of Policy and Legal Reform, agreed that international expertise was proving key to the efforts of Ukrainian law enforcement agencies.

Legal scholars provided consultations on international law and human rights at the request of investigators and prosecutors, and could also conduct case reviews of criminal proceedings if asked by Ukrainian law enforcement officers to identify problematic issues or draw up investigation plans.

Criminologists and forensic experts advised in person on the collection of evidence at crime scenes, as part of the so-called mobile justice team system.

“If we talk about what can be improved in cooperation with foreign experts, then I would suggest giving authority to criminologists to independently conduct examinations that will have the status of evidence in the Ukrainian criminal process,” Krapyvin said.

The joint investigative group includes the ICC, which in May 2022 sent a group of 42 investigators, forensic experts and support staff to Ukraine.

“ICC specialists work on the complementarity principle, ie in cases where Ukraine cannot or does not want to investigate certain crimes. We do not have such cases, sometimes we are simply limited in resources. They often have more power to process large amounts of data, have more powerful open source capabilities, prosecute crimes against humanity, and their jurisdiction extends to those who may be immune from our national jurisdiction, namely the highest political and the military leadership of the Russian Federation,” Kozliyeva explained.

In September 2022, parliament expanded the ICC's authority and gave it the right to independently conduct investigative and procedural actions on the territory of Ukraine after agreement with the prosecutor general.

Legislative changes mean that the criminal procedure code regarding Ukraine's cooperation with the ICC is now ensured by the office of the prosecutor general. The execution of verdicts or other ICC decisions is ensured by the ministry of justice of Ukraine, which is also mandated to provide the international court with all necessary assistance.

“The ICC works very actively on the territory of Ukraine,” Kozliyeva said. “They come, familiarise themselves with the materials of the proceedings, of course with the permission of the investigator or prosecutor, in accordance with the requirements of the criminal procedural legislation. They send the requests or appeals regarding the questioning of persons or the provision of information.

The close cooperation with international institutions such as the ICC and with Ukraine's allies also served another purpose, she continued, effectively helping to focus international attention on a full-scale invasion which was soon to enter its second year.

“We constantly inform [ our partners] about the state of our investigations, the number of crimes, deaths and injuries,” Kozliyeva said. “We analyse the results of joint work after the visit of foreigners, and this interaction is more active and effective than ever. But this is constant communication, because foreigners can quickly forget about the war and war crimes in Ukraine, if we do not remind them about it and inform them about the efficiency of using their resources.”