Prosecution of Russian war crimes is ultimate test for Ukraine’s state

Analysis: With almost no successful major prosecutions over the last 30 years, those building cases hope things will be different this time

Surrounded by a scrum of reporters with a backdrop of bombed-out apartment buildings and rubble in Borodianka, a town in the Kyiv region, stood Iryna Venediktova, Ukraine’s prosecutor general.

Iryna Venediktova, Ukraine’s prosecutor general, speaks to members of the press in Borodianka.
Iryna Venediktova, Ukraine’s prosecutor general, speaks to members of the press in Borodianka. Photograph: Ed Ram/The Guardian

Venediktova is carrying the weight of bringing almost 2,000 cases of war crimes committed by Russia’s occupying forces to court at home and abroad. Her office is the only body in Ukraine with the power to investigate. It is through her office that information relating to war crimes is being collected, investigations will be conducted and domestic and international cases will be built.

Reminiscent of Volodymyr Zelenskiy’s trip to newly liberated territories outside Kyiv, Venediktova walked around Borodianka with her subordinates observing the damage, wearing an army flak jacket and baseball cap.

“I watched while the bodies were exhumed in Bucha,” Venediktova, who was appointed in 2019, said, describing one of the mass graves in the neighbouring town of Bucha, which is being investigated as a war crime.

Investigating war crimes is difficult. It involves teams of different experts who can collect and analyse physical, oral and open-source evidence that will stand up against the defence. International criminal law prosecutes individuals, not states, and so prosecutors must link the crime to the perpetrator.

“Before the war, the majority of Ukrainians did not trust the state,” said Venediktova. “There were grounds for this: the other general prosecutors and the way they behaved.”

On the road between the towns of Bucha and Borodianka, Ukrainian officials recover ammunition and weaponry thought to be dumped or stashed in a body of water by retreating Russian soldiers.
On the road between the towns of Bucha and Borodianka, Ukrainian officials recover ammunition and weaponry thought to be dumped or stashed in a body of water by retreating Russian soldiers. Photograph: Ed Ram/The Guardian

The office of Ukraine’s prosecutor general has been dogged by accusations of corruption and inefficiency since the country declared independence.

There have been almost no successful major prosecutions over the last 30 years, with the shooting of dozens of protesters in February 2014 in central Kyiv, the murder of two prominent Ukrainian journalists, the poisoning of Ukraine’s third president, and countless instances of state corruption and bribery all failing to result in convictions.

Ukrainian NGOs, state workers and civilians involved in gathering evidence to build the cases hope that things will be different this time because of how the war has penetrated the entire society. But doubts remain over whether the war will change Ukraine’s infamously murky judicial system by itself or whether civil society will need to exert pressure.

Svitlana Shevchenko, head of the Kyiv region administrative courts, stands where the house of one of the judges of Borodianka court was, behind the courthouse.
Svitlana Shevchenko, head of the Kyiv region administrative courts, stands where the house of one of the judges of Borodianka court was, behind the courthouse. Photograph: Ed Ram/The Guardian

“Some people think it’s going to be the same story with these [war crime] cases. I have my doubts too,” said Svitlana Shevchenko, the head of the Kyiv region administrative courts, on a trip to Borodianka. “But I don’t even want to think about it.”

On the second day of the war, legal professionals, the Kyiv region judges and court employees created a Telegram chat where they started to upload videos of alleged war crimes from across the area, being sure to preserve the metadata.

Out of 28 judges, clerks and courthouse employees in Boradianka, 25 had their houses destroyed, said Shevchenko. “That’s a statistic for you,” said Shevchenko.

Hennadiy Stasenko, head of the Borodianka court in Kyiv region stands where his desk was next to the carcass of his computer in the Borodianka courthouse.
Hennadiy Stasenko, head of the Borodianka court in Kyiv region stands where his desk was next to the carcass of his computer in the Borodianka courthouse. Photograph: Ed Ram/The Guardian

The head of the Borodianka court, Hennadiy Stasenko, was still visibly shaken as he showed the Guardian the completely blackened courthouse building and stood in the spot where his office used to be.

They now plan to submit the reams of evidence they have collectively gathered to the war crimes website set up by the prosecutor general’s office.

Also contributing to the building of war crimes cases is the NGO Truth Hounds, which has been trained by former prosecutors from the international criminal court (ICC) to collect testimony that will be admissible. Truth Hounds started documenting war crimes in 2014 in eastern Ukraine. Now it is trying to train more staff to add to its body of investigators.

Roman Avramenko, executive director of the NGO Truth Hounds, and Yarapolk Brynykh, a board member of Truth Hounds, speak to people in Stara Basan village as they investigate war crimes.
Roman Avramenko, executive director of the NGO Truth Hounds, and Yarapolk Brynykh, a board member of Truth Hounds, speak to people in Stara Basan village as they investigate war crimes. Photograph: Ed Ram/The Guardian

“After [Venediktova] was appointed, she rehired a lot of the prosecutors who had been fired as part of the reform process,” said Yaropolk Brynykh, a board member of Truth Hounds, who was on the lustration board involved in interviewing and firing prosecutors. “She had to build a loyal team.”

“But I hope that the war will change this behaviour. She has no other option,” said Brynykh, speaking from Stara Basan, a village 62 miles (100km) west of Kyiv where he was conducting interviews with residents who said one villager was shot for looking out the window and two more were taken to a neighbouring village and executed.

Destroyed buildings in the village of Stara Basan, east of Kyiv.
Destroyed buildings in the village of Stara Basan, east of Kyiv. Photograph: Ed Ram/The Guardian

“After the war, can you imagine the level of radicalisation of society, the demands they will make to the authorities?”

Truth Hounds says it is aiming to help at least 10 foreign countries build national cases on Russian war crimes, including in Asia and Latin America. Other countries can launch their own criminal cases if their citizens were victims or if they house refugees who were affected.

Wayne Jordash, a barrister whose legal firm has been almost the only one working on war crimes in Ukraine since 2014, said Venediktova was the first general prosecutor his firm had had direct contact with.

“That was the kind of hands-on approach which was needed,” said Jordash. “Because, you know, if you look at the way the Ukrainian judicial system works, there’s a lot of different actors, and if they’re not coordinated from the top down, it’s difficult to investigate anything.”

Jordash said there was a recognition inside and outside Ukraine that the scale of the events meant prosecutors needed support. He said there were plans to create mobile justice teams of foreign experts to mirror the work of Ukrainian investigators gathering evidence on the ground.

aVenediktova has also set up an international advisory board to Ukraine’s prosecutor general’s office that includes well-known international criminal lawyers such as Amal Clooney.

“The international response has been unprecedented,” said Anna Neistat of the Clooney Foundation for Justice, which has announced that it too will be conducting its own investigations into war crimes in Ukraine.

The ICC opened an investigation just days after the invasion, said Neistat, after 39 countries supported Ukraine’s request.

“Every day we hear of new countries opening proceedings under universal or extraterritorial jurisdiction,” said Neistat. Over a dozen countries had now launched their own investigations into Russian war crimes, said Neistat.

Russia does not recognise the ICC and is unlikely to participate in proceedings launched in other jurisdictions. Nevertheless, said Neistat, there was the possibility that other countries would hand over indicted suspects who ventured outside of Russia in the future and would be on Interpol’s red notice list or an ICC indictment.

Venediktova said that in the first days of the war she and the European court of justice created a joint investigation team, and that the first delegation of dozens of experts would arrive from France on Monday. “We feel we have real support right now.”

“I’m not working for likes on Facebook,” said Venediktova. ”I am demonstrating to Ukraine and the international community the work of our entire law enforcement system.

“You have to do your work first and foremost. Ukrainians can judge me once the work is done.”

Contributor

Isobel Koshiw in Borodianka

The GuardianTramp

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