ONE YEAR OF WAR CRIMES INVESTIGATION. INTERVIEW WITH YURIY BYELOUSOV, HEAD OF THE WAR DEPARTMENT AT THE PGO [EN]

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ONE YEAR OF WAR CRIMES INVESTIGATION. INTERVIEW WITH YURIY BYELOUSOV, HEAD OF THE WAR DEPARTMENT AT THE PGO [EN]

It has been already one year that the Ukrainian law enforcement system has been investigating war crimes in a new context – after the full-scale invasion of the armed forces of the Russian Federation on February 24, the scale, gravity and nature of these crimes have changed. Over the past year, we managed to develop a system of national prosecution for international crimes, including war crimes.

JustTalk

13 March, 2023

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ONE YEAR OF WAR CRIMES INVESTIGATION. INTERVIEW WITH YURIY BYELOUSOV, HEAD OF THE WAR DEPARTMENT AT THE PGO [EN]

The editors of JustTalk have prepared a series of interviews with people who are involved in evidence collection, investigation, prosecution in cases of war crimes. We offer to your attention the text version of the conversation between Eugene Krapyvin, JustTalk content editor, JustGroup expert, and Yuriy Byelousov, Head of the Department for Combating Crimes Committed During Armed Conflict of the Office of the Prosecutor General.

Ye: — Yuriy, could you please tell us about your main achievements this year. How does it look in quantitative terms?

Yu: — During this year, it was actually possible to build the components of the war crimes investigation system, specialized units were set up in the Security Service, the National Police and the State Bureau of Investigation. That is, the investigators who are full-time engaged in the investigation of war crimes were introduced as a specific specialization. In addition, specialized units were established in the prosecutor’s office, namely, in the central office and in nine regional units. In total, it is about 200 prosecutors.

Coordination is established between them – that is, we can talk about a system that functions in practice, if we evaluate it from the position of an ideal model. This made it possible to avoid duplication, to strengthen and differentiate the competences of different investigative bodies in order not to do the same work. In addition, the exchange of information has been established so that we clearly understand which bodies have which information, which databases and registers they maintain, and do not waste time searching.

As for numbers, as of today, from February 24, 2022, about 68,500 war crimes have been registered – and in addition, 16,806 crimes against the foundations of national security.

More specific: we have 276 people suspected of war crimes (97 of them have been indicted in court; 26 of them have been sentenced). It is important to note that a half of these verdicts, even a little more, 14 – are against prisoners of war (who committed war crimes), that is, against persons who are physically present in Ukraine. Against other 12 persons, proceedings were conducted in absentia.

In addition, we have a large proceeding regarding the crime of aggression against the highest military and political leadership of the Russian Federation. We have 639 suspects in it, including the chief of the general staff (Gerasimov), the minister of defense (Shoigu), heads of intelligence agencies, heads of both chambers of the russian federation federal assembly (161 senators of the russian federation and 419 members of the state duma), etc., as well as the head of the central bank of the russian federation, a minister of transport of the russian federation. In total, 639 persons were notified of suspicion of the crime of aggression, and we have sent the cases to court in relation to four persons. The rest are still at the stage of pre-trial investigation. It usually takes a long time due to the absentee investigation procedure, but I believe everything will be sent to court soon.

Ye: — You mentioned various authorities that are involved in this process and the coordination between them. We have the Criminal Procedure Code stipulating that the war crimes are under the investigative jurisdiction of the SSU. How is this work structured in practice and how actual specialization looks like?

Yu: — Yes, according to the Criminal Procedure Code, war crimes are the exclusive responsibility of the Security Service of Ukraine. At the same time, practice has shown that SSU investigators cannot objectively investigate such a large number of war crimes, so we involve investigators from two other agencies in investigation of this category of crimes. These are usually the National Police and the State Bureau of Investigation. At the same time, we are mindful of pre-existing national jurisprudence (although it is changing), which has generally held evidence gathered in ‘violation of the rules of investigative jurisdiction’ to be automatically inadmissible. Therefore, to make sure that such issues do not arise in our case, so that after a certain time, the evidence collected by the National Police investigators is not recognized as inadmissible, we necessarily, at the initial stage, as early as possible, involve SSU investigators, who for a certain time investigate criminal proceedings. Then, for various reasons, we can transfer these criminal proceedings to other bodies of pre-trial investigation. This way, the ‘procedural purity’ is complied with, because the Security Service of Ukraine – as the proper body of the pre-trial investigation – must be necessarily present at the early stages.

We have agreed with the Security Service of Ukraine and the National Police which body is responsible for which war crimes, in which territories, etc. It took us about three months to arrange it. For example, if we are talking about violent war crimes (murder, rape, torture), the investigation requires the skills that the investigators of the National Police usually have, since they investigate similar categories of general crimes. If it is a crime of aggression or shelling of civilian objects, shelling of energy facilities, this category of proceedings is investigated by SBU investigators. Depending on the need, we sometimes involve the SBI in criminal proceedings.

Ye: — Investigation of war crimes requires special knowledge in the field of international humanitarian and international criminal law. Was our investigative system ready in terms of that kind of knowledge, expertise, and how did we manage to train so many people who had no previous experience with war crimes to do all the complex things that are required in a war crimes investigation?

Yu: — Indeed, the criminal justice system was not ready for such a large number of war crimes. Traditionally, this category of proceedings was handled by specialized units in PGO, there was a so-called ‘War’ Department, which before the full-scale invasion investigated war crimes committed in the occupied territories of Donetsk and Luhansk regions and in Crimea. We also had specialized divisions in Luhansk and Donetsk regional prosecutor’s offices and in the prosecutor’s office of the Autonomous Republic of Crimea, which had knowledge for working with this category of proceedings.

Sure, after a full-scale invasion, the number of war crimes increased exponentially, and people clearly lacked experience. Therefore, we involved everyone in the investigation of war crimes – both the pre-trial investigation agencies and the prosecutor’s office bodies (the de-occupation of Kyiv region is illustrative in this regard), which at that time did not have relevant experience. They had to learn ‘on the fly,’ to study both international humanitarian and international criminal law. In April or May we tried to strengthen the role of the ‘War’ Department – we expanded it, increased the number of employees. It started to take on a coordinating role regarding the entire system, because it is a kind of bearer of the standards for the investigation of war crimes. A coordinating role is necessary in order not to make mistakes at the regional level that could be made if one does not know international humanitarian law. That is why we maximally included ourselves in this process together with our colleagues from the NGOs and the Training Center for Prosecutors of Ukraine. Together they prepared various ads hoc memos, guidelines, guidance notes on the specifics of the qualification of war crimes from the Prosecutor General, etc. Also, our colleagues from the regional supervision unit provided technical hands-on assistance so that the regions did not make mistakes.

We understand that this category of criminal proceedings is high profile not only in Ukraine, but also abroad. That is why we tried to make this process as high-quality as possible, because sooner or later the question about the capacity of the national justice system will arise. This is about impartiality, because Ukraine, as a party to an armed conflict, can be biased and investigate poorly – such concerns are voiced by our international partners. In order to avoid these accusations, we began to smoothly advance the standards of war crimes investigations, as early as in spring of 2022. International colleagues also helped us: a group of advisers – Atrocity Crime Advisory Group (ACA) for Ukraine – was set up in the PGO. It includes experts from the UK, the US, the EU, and other countries who have experience in investigating war crimes and participating in war crimes tribunals. These people helped us a lot find the right vector instead of inventing our own know-hows.

Ye: — If we look at the investigation of war crimes from the victim’s perspective, the common problems in the criminal justice system come to our mind: the victims do not feel the support from the state and generally do not understand their future fate. With war crimes, this is further complicated by the fact that even if a person who committed a crime it is identified, access to this person is significantly limited or even impossible. How is the work with the victims structured, what approaches are used and how are the prospects of restoring justice in such a complex category of crimes as war crimes explained to the victims?

Yu: — Indeed, you rightly pointed out, it is a systemic problem when the victim is actually left out of the process. That is, out of the attention of both the prosecution and other participants in the criminal proceedings. This problem also extends to war crimes, unfortunately.

However, we are trying to change the practice and expand the involvement of a victim in the investigation. Most progress has been made in changing approaches to work with victims of conflict-related sexual violence (CRSV). We have a separate unit that is very effective in cooperation with other authorities, international organizations and Ukrainian NGOs, they set up a whole coalition. They try to approach this problem from different angles, in particular by providing the maximum amount of assistance, including social, psychological, medical and other types of support for the victims.

With regard to victims of other war crimes, there is currently no such workstream, but the prosecutor’s office is seriously discussing the possibility of developing a specific approach to interaction with victims of war crimes and providing support to them. The Strategy for prosecuting perpetrators of international crimes will be adopted for the next two years, and its separate section is dedicated to supporting victims and witnesses of war crimes. That is, currently I cannot say that we already have significant experience in supporting the victims, but this is definitely one of our priorities this year.

Ye: — Since we started talking about the prospects of restoring justice, many people either do not know, or if they do, they complain about absentee investigations that in war crimes, most of the suspects are physically unavailable for justice and their participation in the procedures is complicated, and the execution of the sentence even more so. What is the prosecutor’s office’s communication strategy, how to explain how justice will eventually be restored, and the guilty will be punished for war crimes?

Yu: — That’s rights, in most cases, our investigations are carried out in absentia, when we do not have suspects physically present. At the same time, we have access to the evidence base, which we have no right to lose, so the necessary investigative actions are carried out immediately. Ideally, of course, we should have access to the crime scene. Therefore, when we gained access to Kyiv region, to the liberated territories of Kharkiv and Kherson regions, both the quality of investigations and the number of detected crimes automatically increased, because investigators and prosecutors gained direct access to the crime scene, the opportunity to work with victims and witnesses. This made it possible to qualitatively document war crimes, in particular to identify people who may be involved in their commission.

If the crimes are committed in currently occupied territories where we do not have access, there are still methods to gather evidence remotely. We are also talking about the analysis of data from open sources, intelligence data, data from international partners, and using other sources that help document a crime and evidence. When in the course of such documentation we believe that we have identified a person who may be involved and there is evidence of their guilt, the legal framework enables us not to wait until this person falls into our hands, but to transfer the case to court (in absentia). Moreover, even to pass a verdict in absentia. In addition, it triggers certain compensation mechanisms for the victims, which is also very important. Such an absentee procedure is critically important for the victims who are expecting redress, especially now that there is a lot of talk about possible redress mechanisms that will work sooner or later.

In addition, this in no way excludes real responsibility of the convicted person after the court passes the verdict. The war continues and this person who committed the crime is not available to us today, but tomorrow everything can change. And then there will immediately be an opportunity to execute the sentence that has already been passed by the court. In other words, it makes no sense to postpone the investigation until tomorrow, when this person falls into our hands, everything can happen in parallel. The main goal of this mechanism is to record all the evidence, identity the suspect, as well as provide the opportunity to launch redress mechanisms for the victim. For this, it is not necessary to wait for the moment when the suspect is available for our justice physically, although we hope that it will come soon.

Ye: — Yes, that is exactly what we are hoping for. As for the investigation as a whole: the national system is not the only one, we have the International Criminal Court, we have universal jurisdiction. There are many states that are ready to help Ukraine in the investigation of international crimes and war crimes in particular. How can a balance be stroke, who does more and how exactly does cooperation take place? We can often hear that “you have the International Criminal Court, it is permanent, it will sort things out, and you, Ukrainians, only have to provide information”. Why is this not so?

Yu: — Ukraine’s experience is unique. It is being formed by Ukraine, unfortunately, as a result of those terrible events that are happening right now. From a legal point of view, this situation is unique, because there is an opportunity to work out the mechanisms of prosecution and punishment for international crimes, which were not applied in other contexts. In the future, many will study our experience, because international crimes will continue to be committed. We try to involve the whole world as much as possible in the investigation of international crimes. I always tell our international partners: the international crimes are called ‘international’ for a reason, it is the business of the whole world to hold them accountable, not only Ukraine.

In other countries where war crimes have occurred, their prosecution has been either within national jurisdiction, or through various hybrid mechanisms, or a separate tribunal or ad hoc court, etc. We assume that it will be a much more complicated mechanism, and the main thing is that we pay attention to the interests of Ukraine. It is very important to understand that it is Ukraine that determines how, where and who should be prosecuted for crimes they committed. It is important to realize this, because the hope that someone will come there one day and determine for us who should be persecuted and how does not work, we immediately abandoned this approach.

The International Criminal Court, other countries that want to prosecute war criminals within the limits of universal jurisdiction, are all the implementation of a complementary function, that is, an addition to our national justice system. Where we cannot prosecute, they are included. We understand that 99% of war crimes will be investigated and prosecuted precisely within national jurisdiction. At the same time, the ICC will do its job — it will bring to justice the highest leadership of the russian federation, which we simply cannot prosecute due to their immunity. In certain cases, we delineate as we go which russian decision-makers will end up in the dock of the ICC, and who will be subjected to our prosecution. From the point of view of public perception, we understand that in difficult cases, it may be better to see the verdict of the ICC rather than the Ukrainian district court. Precisely because the trust in the ICC is higher and the publicity of its decision will be much greater. Therefore, the ICC will work for a wider range of people than the so-called troika endowed with immunity – the president, the prime minister, and the minister of foreign affairs. We are in constant contact with the International Criminal Court, agreeing on who and how will be prosecuted by it, and who will be brought to justice at the national level. This is necessary in order not to prosecute a person for the same crime in two different jurisdictions. If we find out that the International Criminal Court is interested in a particular person (proceeding related to this person), our task is not to condemn this person in Ukraine, but to collect evidence of guilt, which will be transferred to the International Criminal Court.

At the same time, we understand that the resources of the ICC are very limited. The military and political leadership of the russian federation will be in its dock. According to my personal assessment, it is about 15-20 people, hardly more.

In addition, we still have the resources of other countries that prosecute war criminals within the limits of universal jurisdiction. That is, those countries that have started their own investigation into war crimes committed here in Ukraine. We are in constant contact with them, in December we proposed a specific procedure for cooperation. We are ready to share with them all the materials of criminal proceedings, if they are interested in it. We are ready for their courts in London, in Berlin, in Madrid, in Melbourne to start prosecuting Russians for war crimes in Ukraine within their national jurisdiction. And then we will have this constellation of courts that work around the world and that bring war criminals to justice. This model is unique.

The more courts are involved, the better, because it will help save resources that can be used to investigate other proceedings in Ukraine. At the same time, the entire world will demonstrate its reaction to the international crimes committed by the russian federation. Other countries, first of all the guilty country, i.e. the russian federation, will see that it is not just the ICC, not just national courts of Ukraine, it is dozens of countries around the world that are starting persecution. Thus, it is possible to significantly limit the possibilities of movement for russians, in particular travel, use of resources of other countries, business, and so on.

It is a very powerful tool that, on the one hand, has a preventive effect that will give other countries prone to aggression against their neighbors the opportunity to think twice before doing so. And this experience, I repeat — the involvement of international jurisdiction, the International Criminal Court, universal jurisdiction and national courts, the synchronization of this mechanism — is truly a unique model that can be piloted and implemented in Ukraine.

Ye: Thank you for the answers. I agree, international crimes are a common matter, and I believe that this unique experience of Ukraine will have remarkable results, will create a precedent that will be included in textbooks of international law and will be discussed for a long time to come. On behalf of JustTalk team, thank you for this conversation, for your detailed answers, and I wish you all the best in your future work. Goodbye!