The New Prosecutor General: How to Ensure Effective Operation During Armed Conflict

The Prosecutor General must understand the scale of the challenges he has ahead. Dealing with international crimes since 2016, I would like to draw the new Prosecutor General’s attention to several points that are crucial for building an effective justice system. The first is the preservation of institutional memory.

The Prosecutor General’s Office should be engaged exclusively in the overall coordination of investigative bodies and proceedings regarding alleged international crimes. As it is prescribed by the Constitution of Ukraine. In any case, it cannot replace the work of pre-trial investigation bodies or take over the functions of the National Police, the Security Service, and the State Bureau of Investigations. After all, the investigation of crimes committed in an armed conflict is primarily their task. 

In 2019, a special "Department of War and Peace" was established within the PGO (the Department of Supervision in Criminal Proceedings for Crimes Committed in Armed Conflict). The Department has brought together qualified specialists who have experience and sufficient expertise to work specifically with international crimes. The key task now is to strengthen the Department’s capacity, to make it a coordinating center for research into the consequences of the armed conflict. If before the full-scale invasion there were only the Prosecutor General’s Office of the Autonomous Republic of Crimea and the relevant units in Donetsk and Luhansk regions that dealt with war crimes, now similar units must operate wherever hostilities took place. In Sumy, Kyiv, Chernihiv, Kharkiv, Kherson, Zaporizhzhia, Mykolaiv, Odesa regions.

This can be done by establishing separate departments on the ground, so territorial attachment will ensure a clear division of responsibilities.

The arrangement of favorable conditions for the creation of similar departments in investigative bodies largely depends on the Prosecutor General’s Office. It is the prosecutor's office that can significantly influence the creation of favorable conditions for the creation of similar departments within investigative bodies. In this regard, the Prosecutor General’s Office should primarily rely on the work of the National Police as the main recorder of crimes and investigative body as it has a wide range of units on the ground and significant number of personnel.

Documenting consequences of the armed conflict is now a top priority. We must record violations of the laws and customs of war, as much as possible.

Put quality before velocity in war crimes cases referred to the courts. They must be perfectly construed so to leave no doubts about the objectivity and impartiality of the investigation process and its results. Recalling the first case - the trial of Russian soldier Vadym Shishymarin, which is currently being considered by the appeals court, it is important not to repeat the mistakes made. Many international experts and Ukrainian human rights defenders criticized the investigation of the case for the insufficient definition of the chain of command and the refusal to interrogate important witnesses. Ukraine, as a party to the conflict, will be questioned about objectivity. Therefore, we must do everything so that there are simply no grounds for such accusations. And society will understand if the PGO does its work without loud statements and informational pretexts, but qualitatively.

To prove international character of the conflict. Since February 24, the Russian Federation, using propaganda methods, has been trying to prove that the conflict is of mixed nature (non-international and international at the same time). In this regard, an important task for Ukraine is to prove that the structure of the quasi-formations, their economy and military infrastructure are fully integrated into the Russian ones, and therefore to prove Russia exercises effective control over these territories. 

It is necessary to create conditions for evidence preservation. The main problem is that whole towns and villages have become crime scenes. And the amount of evidence, accordingly, is huge. At the same time, we observed how in some places journalists ended up earlier than the investigative bodies. This calls into question the process of preserving evidence. Considering the coordinating role of the Prosecutor General’s Office, a clear standard of work at crime scenes in armed conflict should be developed.

It is important for law enforcement agencies to apply international evidence collection standards for effective cooperation within the framework of the future justice mechanism. Qualitatively collected evidence will also be useful for other state authorities, in particular - for the Ministry of Foreign Affairs and the Ministry of Justice, when they represent the interests of Ukraine at international platforms, such as the UN International Court of Justice, the ECtHR, arbitration on the law of the sea.

Enhancement of international cooperation. Ukraine needs coordinated, systematic and transparent cooperation with states that, within the limits of universal jurisdiction, are engaged in investigations of alleged international crimes in Ukraine (and there are already more than 10 of them); with the International Criminal Court and the UN International Commission to Investigate Human Rights Violations Committed During Russia's Military Attack on Ukraine. Of course, we must collect evidence on all episodes, but where the immunity of high-ranking officials is concerned, Ukraine will not be able to bring these persons to justice for objective reasons.

And the ICC itself should play a key role. Given the limited resources of the Court, it should deal with the so-called "big fish" - Russian and Belarusian top officials, politicians, and not ordinary soldiers, whose cases can be considered by national courts.

Cooperation with NGOs is important for the development of justice.

Non-governmental organizations should not be perceived as competitors. From my experience, I can say that they can rather help in the investigation of international crimes. NGOs have tools that are not always available to state bodies: access to uncontrolled territories, advanced technologies, the most modern methods and applications for documenting and gathering information as well as multidisciplinary specialists on staff.

In addition, NGOs try to document crimes according to international standards, which differ from national ones, and thereby act as a certain trigger for law enforcement agencies and encourage their development.

Development of digital forensics. One of the main tasks in the investigation of international crimes is to establish a connection between crimes and their perpetrators. In conditions of armed conflict and temporary occupation of part of the territories, this is significantly complicated by the lack of access to the crime scene. However, in such situations, digital forensics comes to the fore. I have repeatedly emphasized that in today's world, almost everything has its digital footprint. It is much more difficult to destroy than traditional evidence, so we must use all possible tools to ensure justice. From this point of view, digital forensics significantly complements traditional methods of investigation, so it is important to have training programs for law enforcement officers for proper, systematic, and centralized collection, storage and verification of digital evidence. The prosecutor's office in this case, again, should coordinate the work.

Development of professionals. The need to develop the national justice mechanism creates a great demand for professionals. Therefore, it is very important right now and for the future to "invest" in the development of professional competencies of PGO employees, especially in those on the ground.