Ukraine: Investigating War Damages
As huge efforts to collect evidence continues, attention is turning to the targeting of civilian infrastructure.
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Tuesday, 25 October ‘22
This week’s overview of key events and links to essential reading.
The frontline in the village of Posad-Pokrovske, in the Kherson region, shifted seven times after Russia’s full-scale invasion began on February 24. Russian and Ukrainian forces took and retook control of the area, leaving behind widespread devastation.
Amongst other local businesses, the village’s Prime Group petrol station was entirely destroyed.
“There is basically nothing there, just a piece of land and charred pieces of steel and columns remaining,” said Prime Group founder Dmitry Lyoushkin, adding that this pattern of destruction had been repeated across the country. “In total, we estimated 6.5 million US dollars of damage to the company because of the Russian invasion.”
As Ukrainian investigators continue to collect new evidence of war crimes, attention is turning to the issue of damage to infrastructure as a grave breach of the 1949 Geneva Conventions.
This categorises the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” as a war crime.
Posad-Pokrovske was retaken as part of the Ukrainian counteroffensive in September 2022. Prime Group lawyers were then contacted by the Kherson region prosecutor’s office and asked to file a statement about war damages they had experienced. They were told that this information could be used to get compensation from the local authorities at some point.
But the process remains uncertain.
“No one asked us to file a statement about damage caused in the Kharkiv or Donetsk regions, though Prime Group has gas stations there as well. No one told us if the information will be used for international courts,” Lyoushkin told IWPR.
In September, a Kyiv School of Economics study found that the total amount of documented damage to residential and non-residential real estate and infrastructure amounted to more than 127 billion US dollars. This continues to rise in the light of ongoing shelling and damage, especially in Mykolaiv, Zaporizhzhia, Sumy, Dnipro and Kharkiv regions as well as in Kyiv.
Experts note that there are a number of avenues to pursue cases of war damages, although currently it is unclear which will be most likely to make Russia pay compensation. In the case of the destruction of civilian infrastructure, the consensus among experts is that the best-short term solution would be to pursue a criminal lawsuit under Ukrainian law, which would help prepare a case for the European Court of Human Rights (ECHR). A lawsuit can also be filed to the International Criminal Court (ICC).
Ukrainian criminal proceedings can also serve as an instrument to help collect evidence that can be used both for filing a case at the ECHR, the ICC or other potential new platforms.
“The ICC itself may not be enough – the international community should think about creating a special tribunal on war crimes committed by Russia in Ukraine”, said Nazar Kulchytskyy, head of the Kyiv-based Nazar Kulchytskyy & Partners Law Firm. “Russia will not want to pay, so it must be forced to do so.”
Nonetheless, he continued, the priority was to pursue domestic procedures.
“It is better to collect the evidence and use the ECHR application for now,” he said.
If a company that suffered war damage has the resources, it can file an application to the ECHR without a criminal case in Ukraine. Lawyers for the Ukrainian financial and industrial holding company System Capital Management (SCM) are currently pursuing this option.
“The ECHR does provide specific protection that relates to property,” said Marney Cheek, a lawyer with the American multinational Covington & Burling LLP firm partner and a SCM representative to the ECHR. “It says that every person is entitled to the peaceful enjoyment of [their] possessions and that no one should be deprived of their possessions.”
Other processes are being actively explored. In meetings with the Parliamentary Assembly of the Council of Europe (PACE), Ukraine’s prosecutor general Andrii Costin recently discussed the establishment of an International Compensation Commission that could fill the gaps in existing mechanisms.
And on October 20, the Ukrainian parliament adopted a new bill to set up a fund to deal with the aftermath of the Russian invasion. It will accumulate money directed from the nationalisation of Russian assets that has been mandated by recent legislation.
GATHERING EVIDENCE
To handle the unprecedented number of cases war crimes cases - 41,000 were registered between February and October 2022 - so-called mobile investigator-prosecutor groups have been created. Each includes prosecutors, police officers, state intelligence officers, mine clearance specialists and other experts, that as well as gathering information about human rights abuses also inspect war damage.
“The investigator on the spot cannot see the whole picture alone, so coordination with the prosecutor general’s office is key when investigating so many war crimes”, Kulchytskyy said.
Following Ukraine’s September advance, 28 groups began working in the liberated Kharkiv region alone. Investigations have uncovered suspected mass murders. In Izyum city in the Kharkiv region, for instance, the authorities discovered a burial site containing around 447 bodies. In Lyman, at least 180 bodies - including whole families with young children – were discovered in a mass grave.
The groups have also been collecting evidence of war damage for criminal lawsuits in Ukraine and future future applications to international courts.
On September 15, prosecutor Yuriy Byelousov, accompanied by security service investigators, came to Izyum in the Kharkiv region to examine the ongoing investigations.
“We examined several local authority buildings. Our main task is to see how much work investigators and prosecutors must do in the Kharkiv region,” Byelousov said in an official statement.
According to official procedure, investigators must first inspect the site where a civilian building or an infrastructure object has been damaged by a missile. The damage type and scale is assessed as well as the cause - whether by shelling, fire, arson or bomb detonation.
Next, the investigators need to determine whether the civilian infrastructure was damaged by accidental shelling or deliberately.
Kulchytskyy used an example of damages sustained in Irpin city near Kyiv, under occupation until early April, to illustrate the process.
“For example, some houses in Irpin were damaged because of BM-21 Grad missiles located in the Chornobyl area, where the famous Chernobyl nuclear power plant is located,” he said. “One [first] identifies that a missile was fired from Chornobyl – the Russian military occupied the area at that time. The next step would be identifying a military unit based in the Chornobyl area. This helps us determine the causal relationship between the crime and its actor,” Kulchytskyy explained.
He noted that it may be hard to identify a specific suspect, a key difference in war crimes investigations compared to usual damage investigations in civil life.
That would mean in the case of Irpin, it would be hard to identify a specific crew that fired the BM-21 Grad missile that destroyed the object.
“Not all crimes committed by the Russian military are crimes carried out with an order from their commanders or with their connivance,” Kulchytskyy explained. “A crime can be made by an individual; mass events may have a link to leaders of Russian military units.”
Data or objects can serve as evidence that helps determine the damage type, scale and cause. This includes satellite or video footage, witness testimonies and the records of Russian military ammunition.
Ukrainian prosecutors in Izyum found official documents with crucial information about Russian military personnel, a good starting point in the war crimes investigation process.
In a press statement after their discovery, Byelousov said, “Documents that belonged to specific Russian military units have already been found. They include data on personnel, surnames, callsigns, mobile phone numbers which will allow the identification of the Russian military personnel that occupied Izyum.
