by Brianne McGonigle Leyh | Jul 13, 2022
The armed conflict in Ukraine dates to 2014 when Russia invaded Crimea. Since that time, a number of important documentation and investigation efforts began, both nationally and internationally. These included efforts undertaken by civil society organizations like Euromaidan SOS/Center for Civil Liberties, national criminal investigations undertaken by Ukraine’s Prosecutor General’s Office, and preliminary examinations carried out by the International Criminal Court (ICC) in response to Ukraine’s Article 12(3) declarations, which allow the Court to exercise jurisdiction despite Ukraine not having ratified the Rome Statute.
Fast forward to 2022, when new reports about documentation and accountability initiatives and developments in relation to war crimes and crimes against humanity emerge every few days (see here, here and here). More than 8000 criminal investigations have been opened with over 600 suspects already identified (many of them high level), and no less than a dozen States or international bodies claim criminal jurisdiction over alleged crimes.
The robust, multi-actor, and multi-level network response to document, investigate, and prosecute the tsunami of war crimes allegations made against Russian forces during an ongoing conflict situation is extraordinary. The international community has learned important lessons for coordinating investigative responses from the Syrian conflict. And the geographic and historical context of Ukraine has ensured Western State engagement on these issues. For the moment, it is an “all systems go” mentality. Yet, the complex nature and sheer scale of documentation and investigations work are unprecedented in many ways. This post sheds light on these responses and the networks of cooperation forming to help ensure accountability. It also highlights concerns arising from over-documentation, the urgent need to prioritize coordination among the various groups, and the steps undertaken to date.
The primary responsibility for investigating allegations of serious crimes lies with both Ukraine and Russia. While Russia is unlikely to investigate crimes allegedly committed by Russian forces, Ukraine has taken huge strides to do so (importantly, Ukraine is also responsible for investigating allegations against Ukrainian forces as well). Already in 2019, Ukraine established a national war crimes unit to investigate conflict-related crimes. And in May 2021, Ukraine’s Parliament approved Bill 2689, which would bring international criminal law into Ukraine’s Criminal Code. Until the Bill is signed into law by Ukrainian President Volodymyr Zelenskyy, national investigations and prosecutions are moving forward based on Article 438 of its national criminal code which provides a general provision on conflict-related crimes. As noted by others though, this article is insufficient for prosecuting conflict-related sexual violence both as a war crime and crime against humanity.
Notwithstanding these limitations, the Prosecutor General’s Office, under the leadership of Iryna Venediktova, is investigating tens of thousands of allegations of war crimes and has brought several cases against captured Russian soldiers already. These important steps undertaken by Ukrainian national authorities are crucial in the fight against impunity for serious international crimes. Yet the sheer volume of allegations, just in the last few months, has meant that national responses alone will be inadequate. Ukraine will need to work with a network of actors and institutions to address this mass criminality, a process already underway.
Joint Investigation Team – Including the ICC
Never before, during an armed conflict, has the legal community responded with what Ladislav Hamran, President of Eurojust, referred to as concerted “determination.” For instance, six days after the March 2022 invasion, Lithuania, Poland, and Ukraine formed a Joint Investigation Team (JIT). A JIT “is an international cooperation tool based on an agreement between competent authorities – both judicial (judges, prosecutors and investigative judges) and law enforcement authorities – of two or more states, established for a limited duration and for a specific purpose, that conducts criminal investigations” (Article 13 EU Convention on Mutual Assistance in Criminal Matters, Article 1 Framework Decision on JITs; Article 20 Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters). While they may take on various forms, JITs remove a number of obstacles associated with traditional forms of mutual legal assistance, including the need for specific letters of request for each measure sought. In this sense they are beneficial because they allow information to be shared freely and quickly. Another benefit is that they are flexible and supported by Eurojust. Their effectiveness in terms of how well they build successful cases, however, will depend upon the level of cooperation between the JIT members.
In May 2022, one month after the formal JIT agreement was signed between the three States, the ICC took the unprecedented step of joining the JIT as well. This is the first time the ICC has joined a JIT and, according to Eurojust, the framework agreement establishing the JIT has sought to reflect the impartial and independent nature of the Court. Whether and how this is done is unclear because the agreement is not publicly available. In any case, Prosecutor Khan has recently stressed that he envisions the ICC not as an apex court but rather as a hub, cooperating with international and national authorities as well as civil society organizations. The ICC has now sent 42 investigators to assist with investigations and is looking to establish an office in Kiev. Again, this is the largest-ever team of experts sent by the Court to a situation country. In June, three additional EU members States, Estonia, Latvia, and Slovakia, joined the JIT, with Eurojust inviting more States to join.
Other International and Regional Efforts
Other international and regional documentation and investigatory efforts are also ongoing. On 4 March 2022, the Human Rights Council established an Independent International Commission of Inquiry on Ukraine (Resolution 49/1). The Commission is mandated to complement, consolidate, and build upon the work of the UN Human Rights Monitoring Mission in Ukraine (HRMMU), established in 2014, in close coordination with the Office of the United Nations High Commissioner for Human Rights.
Likewise, regional bodies have also joined efforts to document and support investigations. The Council of Europe’s Directorate General Human Rights and Rule of Law established an expert advisory group to support the Prosecutor General’s Office of Ukraine. The Organization for Security and Cooperation in Europe (OSCE), which is the world’s largest regional security-oriented inter-governmental organization, has also created an expert mission to document human rights abuses. Similarly, the EU, UK, and U.S. have set up an Atrocity Crimes Advisory Group (ACA), which also includes Mobile Justice Teams (MJTs), composed of both international and Ukrainian experts which, upon request of the Office of the Prosecutor General, can deploy to assist the Ukrainian War Crimes Unit and other investigators on the ground. In addition to these expert advisory groups, leading human rights lawyers have joined together to form an international Working Group on accountability for international crimes committed in Ukraine, which also seeks to support national investigation and accountability efforts.
Additionally, no less than six EU member States, including the Netherlands and Germany, and a number of non-EU member States, such as Switzerland and the United States, have opened their own investigations under universal jurisdiction or have taken a strong stance in support of other investigation efforts (including the United States dedicating 80 million USD to war crimes accountability efforts and the Netherlands sending a forensic investigation team). Universal jurisdiction allows for the domestic prosecution of certain crimes regardless of where the crimes occurred or the nationality of the alleged perpetrator or victims. Many commentators, including Sergey Vasiliev, see universal jurisdiction as a viable option in the fight against impunity in Ukraine and note the value of structural investigations in many of these countries’ specialized crime divisions.
Civil Society Organizations
Finally, civil society organizations (CSO) are also documenting crimes and collecting vast amounts information. Notable examples include Ukrainian organizations like the Euromaidan SOS/Center for Civil Liberties and Truth Hounds, which began their activities long before the 2022 invasion as well as international NGOs like the Human Rights Watch. Other civil society groups, such as Mnemonic, help with digital infrastructure support by archiving information. Global Rights Compliance and the Public International Law & Policy Group are involved with both documentation and training Ukrainian civil servants on how to properly document evidence of possible war crimes. Digital Open Source Investigation organizations, such as Bellingcat and Amnesty International’s Crisis Evidence Lab, are also collecting, verifying, and analyzing allegations of crimes.
Combined, it is clear this will be one of, if not, the most documented armed conflict ever. While the multi-actor and multi-level response is welcome (and hopefully a model for future responses to crimes unfolding outside of Europe), the risk of over-documentation, particularly when it comes to the collection of statements, is a concern. Over-documentation involves situations where victims are repeatedly asked to recount their experiences to different individuals, often without fully understanding who is recording their story or what it will be used for.
Two main concerns associated with over-documentation have to do with the safety and wellbeing of statement providers as well as with the accuracy of the information provided. Investigators should adhere to the “do no harm” principle and take concrete steps to recognize, prevent, and reduce any unintended negative effects of their investigations on individuals or communities. As noted by Alexa Koenig, there are essential ethical questions that every documenter or investigator needs to ask when carrying out investigations. These extend far beyond a checklist of criteria. They require difficult ethical, practical, and logistical assessments to be made. A growing collection of materials, such as the Murad Code which emphasizes survivor-centered documentation, is now available to help guide actors involved with these processes (see also here and here).
Coordination as Priority
To counter the risks that come from over-documentation and duplication of effort, there is an urgent need for coordination amongst the myriad of actors. Here, Ukraine’s Prosecutor General’s Office, together with Eurojust and the ICC, will play the key roles. Eurojust is particularly well-suited to help Ukraine with coordination efforts. Eurojust has more than 20 years of experience coordinating large scale criminal justice operations. It is a logical actor to assist with coordination efforts.
However, to do so properly, the EU Parliament amended Eurojust’s regulations in May 2022. From 1 June forward, Eurojust is able to centralize all collected information and evidence, including from non-JIT members. They can assist with collection, verification, storage, and analysis to ensure prosecution teams are aware of who collected what information and how to access it. The Parliament’s amendment allows for a core international crimes database, a huge step forward in the fight against impunity for serious international crimes. It allows for a more structured approach to complex collection efforts. Currently, it provides legal, financial, and technical support to the Ukraine JIT, including the interpretation of collected information and forensic reports so that all parties to the JIT can contribute.
Prosecutor Khan from the ICC, together with the Netherlands and the European Commissioner Didier Reynders, will co-host a ministerial conference on accountability for Ukraine at the World Forum in The Hague on 14 July. Here, the ICC and Eurojust will present guidelines for gathering and storing evidence by national authorities and provide guidance to civil society organizations on how to strengthen collaboration between the various actors involved with investigations. This meeting builds upon the 27 April, Arria-formula meeting, held by the UN Security Council which was convened by the Permanent Missions of Albania and France, in cooperation with Ukraine.
All of these developments are necessary and urgent. This is the biggest and most complex intertwined investigation unfolding during a conflict. So while documentation efforts may be “decentralized”, these steps support statements made by Beth Van Schaack, the U.S. Ambassador for War Crimes, who emphasized the high level of communication between the various parties involved. This high level of communication is crucial not only for coordinating investigation efforts but also for addressing the significant hurdles inherent in complex serious crimes prosecutions in order to ultimately bring high level suspects to trial.