One of Ukraine’s most experienced war-crime lawyers says this is a make-or-break moment for international justice.

According to Gyunduz Mamedov, the war crimes were egregious enough before Russia’s full-scale invasion last year — now, “the scale is horrifying” | Chris McGrath/Getty Images 

BY JAMIE DETTMER

MAY 8, 2023 4:00 AM CET

Jamie Dettmer is opinion editor at POLITICO Europe. 

KYIV — “Murder, torture, illegal detentions and the persecution of people based on their ethnicity,” intoned Gyunduz Mamedov.

He was listing the investigations he oversaw into Russia’s atrocities from 2016 to 2021, when working as a Ukrainian prosecutor, initially focused on Crimea after Moscow’s annexation and, subsequently, on the Donbas. And the dismal litany of the inhumanity could easily continue for many more paragraphs.

Mamedov, a 48-year-old Azerbaijani-born Ukrainian lawyer, and his war-crimes team opened 30,000 criminal cases against Russians before he stepped down as the country’s deputy prosecutor general, when his department was abruptly handed over.

Mamedov is silent when asked whether this was punishment for his participation in an audacious sting operation to entrap mercenaries of the paramilitary Wagner group — a secret operationthat Andriy Yermak, President Volodymyr Zelenskyy’s top aide, had frowned upon and disrupted, with many of those involved eventually demoted or sidelined, including Mamedov himself.

But Ukraine could do well with him returning to oversee efforts in navigating the complex legal and political snags to secure accountability and justice for the war.

Mamedov’s departure had prompted an outcry from civil society groups, who praised him for his effective coordination and organization of war-crime investigations, including the probe into the downing of flight MH17 — the Malaysia Airlines passenger jet that was shot down by Russia-backed separatists in 2014 while flying over Donetsk. An innovative investigator and lawyer, Mamedov’s team had established fruitful cooperation with the investigative journalism group Bellingcat to untangle the circumstances surrounding MH17.

According to him, the war crimes were egregious enough before Russia’s full-scale invasion last year — now, “the scale is horrifying.”

“Targeting civilians, residential buildings, hospitals and schools is unacceptable. The international community and Ukraine must hold perpetrators accountable for these grave crimes,” he said. And since the invasion, 76,000 war-crime cases have been opened by Ukrainian prosecutors — which means there are over 100,000 war-crime cases that have been opened since 2014.

But how will they all get handled and processed? That’s the question now taxing legal minds in Kyiv, Europe’s capitals, as well as in Washington and New York.

Mamedov favors lower-rung cases being handled by Ukrainian courts, and approves of the International Criminal Court (ICC) handling larger scale cases of crimes against humanity and genocide focused on the “big fish,” as he put it — around 20 top Russian officials.

Mamedov praised the recent arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova — Russia’s so-called Commissioner for Children’s Rights — issued for the deportation and transfer of children from the occupied territories of Ukraine to the Russian Federation. However, he sees them as a steppingstone for ICC prosecutors assembling additional evidence toward even bigger cases.

He also argued that Ukraine, and the international community, needs to set up a legal mechanism — most likely a hybrid international court that also involves Ukrainian courts — in order to punish Russia’s top leadership for the crime of aggression, among other things. His idea is that the mechanism should have a fully international judicial chamber, with a hybrid element at the level of investigation and procedural guidance, bringing Ukrainian prosecutors and international specialists together. That, in turn, would help stimulate the development of Ukrainian criminal justice, as well as the adoption of desperately needed changes to the country’s legislation.

Mamedov has publicly cautioned against some of the other legal models being bandied about, including a Nuremburg Trial-style tribunal created by a treaty between interested states, or a tribunal shaped by the Parliamentary Assembly of the Council of Europe, the European Parliament and Ukraine — an option that is being advocated by European Commission President Ursula von der Leyen. According to Mamedov, both of these would be regional solutions, and could then be seen as illegitimate, as they would lack broad global support and risk being vilified as the winners’ tribunals. A court created by the U.N. General Assembly would be more appropriate, he said, but he doesn’t see that as politically possible, or likely.

And with all his experience, Mamedov could prove helpful to Ukraine in building these war-crime cases. He’s highly regarded by international jurists, and he has a good relationship with ICC prosecutors, who praise his tenacity, experience, deftness and integrity. They also admired the ground-breaking way his war-crimes team utilized open-source intelligence, satellite imagery, geospatial data and cell phone coordinates to identify perpetrators of crimes.

However, Mamedov said the greatest challenge he faced in building war-crime cases was trying to work with Ukraine’s poorly drafted legislation, which — among other hindrances — defined war crimes as terrorist acts. “When I was the deputy prosecutor general, I tried to explain to the government and politicians and to everyone that the crimes were international war crimes and crimes against humanity, and should be prosecuted, where they could, as such,” he said.

He also faced opposition for wanting to involve the ICC while he was the deputy prosecutor general, as critics, both in the government and outside of it, feared Ukrainian soldiers might find themselves before the court. Ukraine had declared it would recognize the ICC in 2013 and 2015 despite not having ratified its main treaty, but there was no rush in Kyiv to turn to the court.

“At first, there was skepticism because they felt that the court is not effective and that it would also start to judge our own citizens. But I argued we already have recognized the ICC’s jurisdiction, and if you would like to have justice, it has to work both ways,” he told POLITICO. Mamedov believes all allegations should be investigated, including those made against Ukrainians. “Only in this way can we establish the truth,” he said.

Before he quit as deputy prosecutor general, Mamedov handed over more than 20 major cases to the ICC, among them, the massacre in the eastern town of Ilovaisk. “The most atrocious event was in 2014 at Ilovaisk,” he said, when Russian-backed commanders agreed that encircled Ukrainian troops could withdraw, only to then open fire on them. Hundreds of Ukrainians were massacred, and many others wounded and captured. “Ilovaisk was perfidious, and the Russians broke their word,” he said.

Mamedov is still documenting war crimes as one of the founders of Ukraine5am, a coalition  of 33 human rights organizations. And like other expert war-crime lawyers and rights campaigners, he is worried about the lack of coordination between an expanding host of interested parties, including the ICC, international initiatives and agencies, advisers from the European Union and individual Western nations, well-meaning international NGOs, and Ukraine’s prosecutors.

“I was on my own back before the invasion, and no one was interested and right now everyone is investigating war crimes,” he said ruefully. Although, he added, “Better that than nothing.” He said the world is at a hugely important juncture, a make-or-break moment, when the cause of international justice can truly advance and impunity be ended — or it can slip back.

“If we get this wrong, it will not only set us back years, but there could be very bad consequences for the world,” he said. And by that he means others could follow in Putin’s footsteps, thinking they can get away with murder.