By Tetiana Kurmanova
As Ukraine’s judicial system mobilises to deal with an influx of war crimes cases following the liberation of Kherson, legal experts warn that legislation needs urgent adaptation to deal with an expected huge volume of prosecutions.
Kherson lawyer Oleksandr Danilov, currently working with colleagues to record war crimes, said that as of mid-November they had logged more than 3,500 cases including death, injury and property damage. There had also been numerous incidents of illegal detention.
“In our region, there are many episodes of enforced disappearance, that is kidnapping of people by Russians and short-term, unlawful deprivation of liberty, which are classified as such in accordance with the norms of the Rome Statute,” he said, adding that they had recorded more than 600 cases of enforced disappearance.
Although according to Ukrainian law, the security service of Ukraine is the sole pre-trial investigation body, recent experience has shown that the sheer volume of crimes committed meant that inter-agency cooperation is needed.
The thousands of war crimes discovered after the liberation of the Kyiv region in spring had to be recorded by various bodies including the “war department” of the prosecutor general’s office, the police and the security service. After that experience, the prosecutor general’s office began new coordination activities for all law enforcement agencies investigating war crimes in other liberated areas.
According to the latest data from the Ukrainian prosecutor general’s office, ten mobile investigative teams have already started work in the liberated Kherson region, with plans to increase this number to 30.
As part of efforts to secure the territory, 500 police officers have been deployed there, a number which police chief Ihor Klymenko said would rise to 2,000.
Klymenko said that within four days of its liberation, the police of the Kherson region recorded 414 war crimes committed by the occupiers.
The vast majority of these crimes are classified under Article 438 of the Criminal Code – violation of the laws and customs of war – a category which has proved particularly useful in justice processes up to date.
“Article 438 is generally our only article under the criminal code of Ukraine which allows us to correctly classify war crimes, since it refers to violations of the laws and customs of war,” said former prosecutor Alina Pavlyuk, now a lawyer with the Ukrainian Legal Advisory Group. “This article is quite long. Due to its blanket nature, due to the fact that it has references to other laws regarding the violation of the laws and customs of war under international treaties in force, it can be actively applied.”
Due to the huge burden of criminal proceedings, there remains a problem with human resources. Since there are significantly more police than Ukrainian security service investigators, cases can be transferred to them, although the process is not straightforward.
“The competence of the prosecutor includes the possibility to transfer the investigation to another body due to the ‘inefficiency of the investigation,’” Pavlyuk explained. “And this mechanism has been actively used since February 24, when proceedings can be transferred to the national police. These are procedural points, they eat up time, and here we need changes in the legislation of Ukraine, in the criminal procedure code, which will allow police investigators to also be responsible for these facts.”
According to the lawyer, it can take up to two months for such procedural issues to be transferred from one investigative body to another, which greatly slows down the pre-trial process. Under Ukrainian law, this cannot exceed more than 18 months in criminal proceedings involving a serious crime.
Pavlyuk said that it was necessary to make changes to the legislation, in particular to Art 219 of the criminal procedure code – extending the terms of the pre-trial investigation – and Art 216, to clearly state the jurisdiction of pre-trial investigation bodies.
Lawyer Arye Mora, an expert with the Ukrainian Legal Advisory Group, argued that other legislative changes were also necessary.
“In particular, we don’t have command responsibility enshrined in the criminal procedure code, which under international humanitarian law [IHL] allows commanders to be brought to justice specifically for committing war crimes. The only form under Article 438 is the issuing of an order. And this is not enough, it does not comply with the norms of IHL. The article [on] complicity does not cover all possible scenarios.”
Investigations were further complicated by the necessity of collecting and analysing a large amount of evidence, while not always being able to access the scene of the crime or the victims. Many people have left the region, especially in the Kherson area.
“I’m a lawyer in such cases and I will say that the most difficult thing is the identification of the culprits,” said Danilov. “At the national level, it is very difficult to identify exactly those Russians who commit certain actions.”
This made it especially important to correctly document war crimes at the pre-trial investigation stage.
“For example, the village was shelled, people died and houses were damaged. The maximum that our law enforcement officers can identify here is the unit that carried out such shelling. But it is practically impossible to identify a specific soldier, Ivan or Peter, by an artillery installation,” he believes.
Ukrainian civil society is also supporting the justice processes.
Serhiy Mytkaly heads the Anti-Corruption Staff NGO which has collected information about 150,000 Russian soldiers for a database logging war crimes.
“We simply do not have such a large number of law enforcement officers that a case would be opened against every Russian military officer… as of October, 43,498 cases were opened, of which 506 were referred to court,” he said.
With part of the Kherson area still occupied, Danilov said it was imperative to continue efforts to gather as much evidence as possible.
“For people who have lost relatives and property, I advise you to contact law enforcement authorities with a statement about the opening of criminal proceedings both remotely – if you are in the occupied territory – and in person if it’s possible, and we record the evidence base as much as possible – photos, videos, data about witnesses, etc, if you are safe.”
This publication was published by IWPR and prepared under the “Ukraine Voices Project” implemented with the financial support of the UK’s Foreign, Commonwealth, and Development Office (FCDO).