The article explores how the 2014-2021 efforts to document conflict-related crimes perpetrated in Russia’s aggression against Ukraine have informed the response to Russia’s full-scale invasion of February 2022 and crimes emanating from it.

Introduction

The events in Ukraine since 24 February 2022 are dominating the headlines of the world press for months. Such coverage has contributed to creating an impression that the Russia-Ukraine armed conflict started in February 2022, and only since then have international and domestic non-governmental organisations (NGOs) and Ukrainian criminal justice sector felt the necessity to document and investigate war crimes and other conflict-related violations. Due to the localised and sometimes conveniently latent character of Russia’s occupation of Crimea and subsequent maintenance of a proxy war in Ukraine’s east Donetsk and Luhansk oblasts (Donbas), not only numerous international observers but even some Ukrainian citizens, including certain investigators, prosecutors, and judges, shared the illusion of the ostensible uniqueness of the February 2022 aggression.

However, as preliminary confirmed, among other actors, by the Office of the Prosecutor of the International Criminal Court (ICC), from the factual and international law perspectives, the armed conflict in Ukraine has been ongoing since at least the occupation of Crimea in February 2014 (para. 158). Since then, different Ukrainian and international actors have engaged in the documentation of alleged conflict-related crimes in Ukraine. These efforts have created the invaluable foundation, which Ukraine needed to address new crimes – shockingly amplified in their viciousness and geographical scope – since February 2022.

Key stakeholders

Ukraine had no hostilities on its territory since World War II. Therefore, in 2014 Ukraine’s criminal justice sector was, understandably, not really prepared to deal with the new – and very challenging from the proving perspective – types of conflict-related crimes. With certain lingering post-Soviet features of the internal culture and hierarchies within some branches of the state apparatus, Ukrainian investigators and prosecutors needed a while to recognise their lack of expertise in war-related crimes and to gradually open up to external consultancies (and, eventually, even close collaborations) with NGOs and domestic and foreign lawyers and academics specialising in international law. International investigative teams, e.g. those of the ICC, have really galvanised on the ground in Ukraine after the full-scale invasion, with both the ICC’s preliminary examination of Ukraine’s situation and potential universal jurisdiction proceedings in other states moving rather slowly in 2014-2021. Given the described factors and the leading role of Ukraine’s civil society during the 2013-2014 Revolution of Dignity, it is unsurprising that human rights NGOs became the first responders to conflict-related crimes committed since Russia’s initial aggression in 2014.

Civil society documentation

Non-governmental actors engaged in documentation can be compartmentalised into the following six categories:

1) established large Ukrainian NGOs that have dealt with a wide range of human rights issues and have expanded their work to include conflict-related crimes (e.g. Helsinki Human Rights Union, Centre for Civil Liberties, Kharkiv Human Rights Group);

2) Ukrainian NGOs focusing on the documentation of war-related crimes (Truth Hounds, Ukrainian Legal Advisory Group);

3) reallocated Ukrainian NGOs or newly created NGOs by the reallocated activists that deal primarily with grave human rights violations in specific occupied regions (e.g. the Crimean Human Rights Group (declared recently as an undesirable organisation in Russia), Regional Centre for Human Rights);

4) thematic Ukrainian NGOs interested in documentating war crimes and other human rights abuses in particular thematic areas such as religious freedoms, conflict-related sexual violence, environmental offences, crimes against cultural property (e.g. the Ukrainian Women Lawyers Association has expended its strategic litigation streams from domestic and gender-based violence to also include conflict-related sexual violence, the Crimean Institute of Strategic Studies focuses on violations affecting Ukraine’s cultural heritage in Crimea and Russia’s wider weaponisation of culture and the Institute for Religious Freedom dealing with the crimes against the freedom of thought and religion on the occupied territories).

5) international NGOs that have worked consistently in/on Ukraine since 2014 (Amnesty International, Human Rights Watch).

6) international NGOs that have become willing to expand their work to the Ukrainian context after Russia’s 2022 full-scale invasion.

Since the early stages of the Russia-Ukraine armed conflict, CSOs involved in the documentation have set up joint documentation teams, published the analyses of their findings concerning alleged conflict-related human rights violations and war crimes, submitted communications to the ICC (sometimes jointly with the Office of the Prosecutor General and the Prosecutor’s Office for Crimea) and even organised respective trainings for Ukrainian investigators and prosecutors.

The gravity the full-scale invasion of February 2022 has necessitated even more strategised collaboration. For that, Ukraine’s leading documentation NGOs quickly organised two major colations: “5 a.m.” (named after the early morning timing when President Putin announced his “special military operation” against Ukraine) and “Tribunal for Putin” (an unequivocal emphasis that, unlike in 2014-2021, human rights defenders are now gathering data not just for the pending and potential international and domestic war crime, crime against humanity and, possibly, genocide proceedings but also for the potential trial of the Russian political and military leadership for the crime “that contains within itslef the accumulated evil of the whole” – the crime of aggression). Despite joining forces on numerous occasions, NGOs working in Ukraine have not created a comprehensive – synergetic and strategised – system of documentation yet – neither within the NGO community nor between the latter and the Ukrainian criminal justice sector. This is not necessarily a bad thing but rather a consequence of the diversified and competitive world of NGOs as well as still present overcautiousness within Ukraine’s state apparatus regarding close cooperation with human rights groups.

State documentation

On the governmental flank, the National Police, the Security Service of Ukraine as well as the Prosecutor General’s Office and regional prosecutor’s offices also started investigating and prosecuting war-related crimes in 2014. Unlike NGOs that were trained by international experts since as early in 2014, governmental institutions reacted to conflict-related violations with the traditional for them criminal procedure toolkit, which they were accustomed to use for the “ordinary” peacetime crimes. Gradually, they came to understand that the new war reality required a symmetrical criminal justice response. The latter should involve proper documentation of novel conflict-related crimes, the legal qualification of the criminal conduct that takes into consideration contextual circumstances of the crimes (the existence of the armed conflict on the territory of Ukraine and a nexus of the alleged criminal conduct with the war), a different approach to and protection schemes for vulnerable victims and witnesses.

These afore-mentioned challenges – and the need for new, conflict-specific approaches – have led to the gradual specialisation of investigators and prosecutors. The Prosecutor’s Office for Crimea has been in the avant-grade of applying international legal lenses domestically and seeking evidence – as well as devising cases – through specific conflict-related charges. In 2018, the Office presented its strategy for addressing alleged war crimes in occupied Crimea and explained the overarching approach to viewing Russia’s policy in Crimea as neo-colonisation, which paints the backdrop to all connected crimes. The specialisation efforts peaked for the first time in 2019, with the establishment of the focused war crimes units within the police and the Prosecutor General’s Office. In May 2022, in response to Russia’s escalated aggression and upon the initiative of the US, the UK and the EU, the Atrocity Crimes Advisory Group (ACA) for Ukraine was formed. The ACA has two principal pillars: the Advisory Group to Ukraine’s Office of the Prosecutor General and Mobile Justice Teams. Both elements combine the leading international and domestic professionals with diverse practical – investigative, prosecutorial, forensic, psychological –  expertise to support the work of the War Crimes Unit.

The February 2022 escalation has further galvanised the wider – and less legalese – journalistic and academic documentation efforts. Such non-legal human-focused initiatives are commendable as they can reach wider audiences than the usual courtroom substantiations. At the same time,  these as well as the human rights NGO and criminal justice efforts have cumulatively underscored the delicacy of the documentation process, the fragility of the human fabric they are dealing with and the key challenges for all involved stakeholders, most importantly – for survivors of atrocity crimes.

Challenges & Ways Forward

As it was discussed above, the documentation landscape in Ukraine is populated by a very diverse range of state and non-state, domestic and international actors. On the one hand, this increases the volume of collected evidence, written analyses, submitted communications to the ICC and conducted investigations. At the same time, the same landscape predetermines some pitfalls for the effective, goal-oriented documentation:

1. Nine years into the armed conflict, Ukraine still does not have an overarching evidence storage and analysis database, which could be used by all the state and CSOs stakeholders involved in crimes documentation. Several options were tried early on, none was accepted, and there are still talks on whether the new variants should be utilised. The new 2022 wave of Russia’s aggression brought further challenges in terms of the proliferation of both documentation actors and respective databases. The latter include online platforms for evidence submission from the Office of the Prosecutor General, the ICC, Ukraine’s civil society and even, separately, from the Ministry of Culture, for crimes affecting cultural heritage.

2. NGOs and their coalitions do not have a common or even synchronised understanding of the goals and strategy of documentation of war crimes. This does not always mean a bad thing. Different NGOs may cover different types of activities (e.g. potential universal jurisdiction cases, ICC communications, facilitation of the work of Ukrainian investigators and prosecutors). But when the activities intersect, the common understanding of the aims and algorithms of work would be very helpful.

3. The larger number of entities is involved in documentation, the higher is the risk of the contamination of evidence and the more complicated is the task to ensure the same documentation strategy and methodology. This also shrinks the space for the ICC intervention due to the absence of not interviewed (untainted) witnesses and victims.

4. Most if not all Ukrainian NGOs have a public image of the advocates of Ukraine. The tone and substance of their public posts, interviews and statements inform the impartial reader about the (often rather established) sympathies of the organisations. This may indicate bias and, eventually, play an unintended counterproductive role in the criminal proceedings, both in Ukraine and abroad.

5. The work of the War Crimes Unit and other key state documenting authorities may be undermined by the consideration of political necessity. First, while even according to the UN, the vast majority of alleged conflict-related atrocities appears to be attributable to Russia, any allegations about the misconduct of Ukrainian servicepeople should be properly documented and investigated. Second, the official reporting of alleged violations should be in the most sensitive manner, impartial and respectful of survivors. The unprofessional discussion of alleged conflict-related sexual violence by Ukraine’s Ombudswoman (who was eventually dismissed for her flawed reporting) undermined not just the credibility of her office but, most detrimentally, raised unjustified doubts about the perpetration of such crimes during Russia’s aggression.

6. The full-scale Russia’s aggression has necessitated the drastically increased need in state expertise in conflict-related crimes throughout the country. Ukraine has been building investigative and prosecutorial teams to deal with alleged war crimes in occupied Crimea and Donbas. However, these two situations were quite localised. As since February 2022 the whole of Ukraine has become a crime scene, criminal justice professionals across the country had to ensure their rapid professional development as they were essentially learning on the ground. In light of such emergency learning, the establishment of the ACA and Mobile Justice Units is particularly pertinent; similar initiatives uniting foreing and Ukrainian expertise should be supported.

7. Proactive goodwillingness should always be informed by professionalism, especially when communicating with atrocity survivors. Increasingly more victims are repeatedly interviewed by different NGO, state, foreign investigative teams, journalistic and academic actors. This affects the integrity of evidence (the same story repeated over and over and, thus, memorised in a fixed manner). However, most detrimentally, insensitive interviewing and overdocumentation are deeply retraumatising for victims. The well-being of a survivor premised on the ‘do no harm’ principle should be a cornerstone of any documentation process.

Conclusion

The quantity of actors documenting atrocities in Ukraine is unlikely to decrease. While some improvement in the coordination of the relevant organisational efforts is possible, a comprehensive alignment of the goals and interests, both within the NGO community and between non-state and state actors, should not be expected in the foreseeable future. The integration of foreing and domestic knowledge will strongly enhance both state and NGO documentation efforts. Given their rich experience since 2014, NGOs should also try to stay true to their established areas of specialisation and avoid the uninformed – albeit goodwilling – expansion of documentation efforts to new crimes, especially with the high likelihood of survivor retraumatisation. Like with the larger processes of transitional justice, reintegration and reconciliation, the survivor-centric approach should be foundational to all documentation steps.

The article was also published in Ukraine-Analysen in a German version.

Bibliography

  1. Dmytro Koval, Yurii Bielousov, Mykola Pashkovskyi, Investigation of war crimes in Ukraine: challenges and achievements (Le Temps, 2022)
  2. Kateryna Busol, If Ukraine’s Fate Is not a Menu à La Carte, then Ukrainian Voices Must Be Heard (EJIL Talk!, 20 June 2022)
  3. Justin Hendrix, Ukraine May Mark a Turning Point in Documenting War Crimes (Just Security, 28 March 2022)

Image: IMAGO / NurPhoto