How Ukraine Will Find Justice

Oksana Cooper

Kyiv-based writer & researcher

Tuesday, 2 August, 2022

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Legal experts warn that prosecuting Russian war crimes in Ukraine will take years, or more likely decades, given the huge scope of alleged offences and the unprecedented challenge of gathering evidence amid active conflict.

Without concerted international action, the chances of holding more senior figures to account will be nigh on impossible.

According to official data, the office of the prosecutor general registered more than 25,000 cases of alleged aggression crimes and war crimes in the first five months of the full-scale invasion. 

“I will not be surprised if these new war [crimes] cases from 2022 will take even ten years [to prosecute],” said Mykola Khavroniuk, a law professor at the Kyiv-Mohyla National University. 

War crimes proceedings have begun in Ukraine against a small number of Russian military personnel, with six cases currently active. In one of them, a court in Chernihiv is hearing the case of Russian staff sergeant soldier Nikolai Kulikov, accused of shelling a high-rise building on the outskirts of the city. 

Ukraine’s prosecutor general Iryna Venediktova and the chief of the security service Ivan Bakanov were recently suspended amid accusations from President Volodymyr Zelensky that there had been numerous cases of treason within the agencies. On July 27, parliament voted in lawmaker Andriy Kostin as Ukraine’s new prosecutor general. 

However, experts argued that these events would not affect investigations in the long-term. “We cannot focus on personalities,” Khavroniuk said. “The institutions here continue to function and investigators continue their work.”

Nonetheless, Volodymyr Yavorskyy, an expert with the Centre for Civil Liberties, said that Ukraine’s domestic system would struggle to deal with an expected flood of further cases.
“There are a lot of crimes, and there's also the problem with documentation during a time of active conflict,” he said.

In the first prosecution, 21-year-old Russian soldier Vadym Shishimarin pleaded guilty to the murder of a Ukrainian civilian and was sentenced to life in prison, reduced to 15 years on appeal.  Two Russian soldiers have also been sentenced to terms of 11 years in prison each for the shelling of Kharkiv in the Poltava region.

Yavorskyy noted that these successful convictions were largely because the defendants had pleaded guilty. More complex cases would be far harder to prosecute, especially given the volume Ukrainian courts will be expected to deal with.

“This is indeed a challenge for our legal system and therefore the support of international partners and the involvement of international experts at this stage is an important component,” said Vitalia Lebid, a lawyer with the Ukrainian Helsinki Human Rights Union.

Lebid, like other Ukrainian lawyers, have been working on cases involving the Russian armed forces since the 2014 annexation of Сrimea and war in the Donbas.

The alleged crimes she has investigated include extrajudicial executions, disappearances and the torture of prisoners of war. 

The international judicial system has already been part of this process, with some 7,000 individual applications filed with the European Court of Human Rights (ECHR) related to the armed conflict in Ukraine between 2014 and 2021.

The ECHR has an effective mechanism for human rights protection that also applied to Russia as a member of the Council of Europe. Ahead of February’s full-scale invasion, ECHR had already held an official hearing about human rights violations in the territories occupied by Russia in the east of Ukraine. Two other state-level cases are also pending, alongside the thousands of individual applications.

One of Lebid’s most recent cases was an ECHR submission regarding the death of a father and son in Irpin, near Kyiv, in a Russian rocket attack in March.  

However, Russia was expelled in March from the Council of Europe, and the ECHR can only hear new applications relating to alleged Russian crimes if they took place within six months of its expulsion. 

This means that the ECHR has no jurisdiction over any cases involving Russian forces after mid-September this year.  

Other support for prosecuting war crimes committed during Russia’s invasion of Ukraine has already begun to flow from the international legal and human rights community. 

In early March the International Criminal Court (ICC) prosecutor commenced investigations on the situation in Ukraine. The ICC is also participating in a joint investigation team supported by Eurojust, the EU agency for criminal justice cooperation,
on core international crimes in Ukraine. In May several countries, including Lithuania and Poland, signed an agreement that will help coordinate the sharing of evidence via Eurojust.

One crucial issue is that under international law, foreign government officials are not subject to the other country's jurisdiction of local courts and other national authorities. 

"Unlike Ukrainian courts, international processes are able to overcome the diplomatic immunity of Putin and his associates,” explained Khavroniuk. 

Khavroniuk argued that justice would best be served by the speedy establishment of an ad hoc international tribunal to investigate Russia for the crime of aggression. This would also be the simplest way to bring those at a senior level to account, he continued, given that the unprovoked invasion and subsequent crimes had already been well-documented.

“The most simple case could be for the investigation and consideration of the planning and waging of the aggressive war based on all necessary evidence,” he said. “The penetration of the other country's army into the territory of a sovereign state and the conduct of hostilities, the destruction and death have already been recorded.”

In 2016, Russia withdrew its signature from the Rome Statute, which created the ICC. Thus it is impossible for it to be tried there under this recently introduced category of crime and a specially convened court would be needed.

“The ICC investigators can continue to investigate, gather evidence and refer to the court all related war crimes, crimes of genocide and crimes against humanity,” Khavroniuk said. 

Khavroniuk said that national courts could then deal with criminal cases relating to Russian military personnel “who do not have diplomatic immunity, and who are detained on our territory - and are now prisoners of war - as well as other generals and colonels who gave criminal orders”. 

He emphasised such court procedures do not happen quickly, pointing to the trial over the July 17 2014 Malaysia Airlines flight MH17 which was downed in eastern Ukraine, killing all 298 people on board. The court hearing still continues, eight year later. 

However, war crimes have no statute of limitations, a legal principle illustrated by the recent conviction of a 101-year-old former concentration camp guard as an accessory to more than 3,500 murders.