Investigating Izyum’s Mass Graves

As police and forensic experts finished exhuming hundreds of bodies found buried in the woods near the recently liberated city, Mykola Kikkas, lawyer and analyst at the Kyiv-based Regional Centre for Human Rights, told IWPR’s Svitlana Morenets how the investigative process needed to unfold to facilitate future war crimes prosecutions.

IWPR: What should procedural actions need to be taken by investigators after finding a mass grave?

Mykola Kikkas: First, we must collect evidence, such as satellite images, that this mass burial was made during the occupation, and also collect eyewitness testimonies. The next step is to inspect the scene for a general overview, measure the size of the burial site, describe it and take photos. 
 
After that, the exhumation of bodies can be started. Ukraine has already finished this process near Izyum where more than 436 bodies were exhumed. According to Ukraine’s criminal procedural code, forensic experts examine the bodies. Large teams of forensic experts work together with law enforcement officers and criminologists.

What is essential to note when examining bodies?

It is crucial to correctly identify and properly document the specific cause of death on a medical certificate. If it was a bullet wound, where exactly did it hit? If it was multiple bullet wounds - how many? In my practice I had one case when the wife of the murdered man testified that he was shot by Russians through the window when he was in the house. When I received the medical certificate of death, it said ‘mine-explosive injury’. This absolutely did not correspond to reality and the testimony of eyewitness.
 
The problem is that now forensic experts have a heavy workload. Remember the massacres in Bucha, Irpin, Hostomel. There, the cause of death was often written just to fit a template. This should be avoided because it can later affect the classification of crimes. If there is a bullet wound and tied hands, it's clear that the person was executed. If it's a civilian with a bullet wound - even if he wasn't tortured, it's still a war crime. With mine or explosive injuries, it is more difficult because it is difficult to establish who carried out the attack.
 
Recently everybody saw the photo of a yellow and blue bracelet on an exhumed body from the Izyum mass grave. Such things must be documented. It can be used as evidence [in prosecuting] the crime of genocide - when a person clearly expressed through clothing or tattoos their belonging to the Ukrainian nation and was tortured or killed for that. Ukraine’s legal community is working to qualify such cases as genocide.

And of course, samples of body tissue and clothing are also taken for identification.

 Also, all the bullets found at that place must be documented too, in case people were executed right before being buried. The burial is not the only a crime scene - if people were tortured, it could have been carried out in other areas too. Ukrainian investigators are now finding the premises where the torture chambers were set up. It’s necessary to investigate these places well and look for witnesses who saw how people were brought in or out of these chambers.

Does Ukraine receive help investigating these crimes?

The main responsibility for investigating these crimes lies with the Ukrainian law enforcement system. Help is being provided by the representative office of the International Criminal Court (ICC) which also works in Ukraine. 
 
Recently, the Verkhovna Rada [Ukrainian parliament] adopted a law that allows employees of the prosecutor's office of the ICC to participate in national investigative actions. I hope that the president will sign this law in the nearest future. It will improve cooperation between the Ukrainian investigative law enforcement system and the ICC. 

What is the role of the ICC in investigating crimes such as the mass burials near Izyum?

In the future, all these crimes can be brought to trial by the national law enforcement system and by the ICC. It also doesn’t matter whether all the accused will be within reach of the Ukrainian authorities. Ukraine’s procedural legislation provides the possibility of prosecuting and sentencing in absentia.
 
The ICC complements the national judicial and law enforcement systems, for example, when the prosecution is about persons with diplomatic or international immunity. In Ukraine’s case, it is the higher military and political leadership of the Russian Federation - generals, ministers and the president. ICC arrest warrants have more power than any immunities. 
 
Also, in the ICC, thanks to the Rome Statute, the principle of the responsibility of commanders is established. When soldiers commit war crimes, commanders must also be held responsible for this. Unfortunately, this principle has not yet been properly prescribed in Ukrainian legislation.

Can Ukraine prosecute the crime of genocide?

Ukraine has an article on genocide in its criminal code. The problem is that our code was adopted in 2001, and this chapter in the Ukrainian legislation about the crime of genocide was ineffective. No one at that time could imagine that Ukraine would have to investigate crimes against humanity and the crime of genocide. So there is the rule of law, but it is subject to improvement. In particular, it should be brought into line with the concept of genocide enshrined in the UN convention on the prevention of genocide and in the Rome Statute, which have detailed and qualitative descriptions of the crime of genocide.
 
Also, there is already international practice regarding investigation of genocide - for example, in Rwanda and the Srebrenica massacre during the Bosnian wars. There is something to use for practical background.
 
The term ‘crime against humanity’ still does not exist in the Ukrainian criminal code. That is why Ukraine has given its consent to the ICC to investigate war crimes, crimes against humanity and the crime of genocide [committed in Ukraine]. 

Can Russia be held accountable as a state for the crimes of its army?

Russia as a state can and should be held accountable. It is not yet clear exactly what this responsibility will look like. I am sure there will be a question of reparation responsibility - compensation to Ukraine for destroyed property and war damage. Perhaps a reparation fund will be created and the funds will be paid to specific individuals who suffered Russian aggression. Besides, Russia as a state can be held accountable within the procedures of international courts or quasi-judicial bodies, particularly the European Court of Human Rights, the UN Human Rights Committee, the International Court of Justice.