European prosecutors cooperate to bring justice for Ukraine
June 4, 2022
From Kyiv to The Hague to national jurisdictions: Legal cooperation across courts and borders aims to put Kremlin decision-makers in the dock to face charges of war crimes and other aggressions committed in Ukraine.
More than 15,000 suspected war crimes, with hundreds more thought to be happening every day.
And Iryna Venediktova is keeping score. "We all know who is responsible for this war, for these deaths, for everything that is going on in Ukraine, of course," Venediktova, the first woman to serve as Ukraine’s prosecutor general, told DW. "The president of the Russian Federation and his team, who actually started this war, to kill civilians, to rape civilians, torture civilians."
And day by day, Venediktova is racking up more resources to bring those she accuses to court, she said, on behalf of all humankind.
"It's the main goal of all the civilized world, of all people who speak about rule of law, about justice, about international law," she told DW, "that people who are responsible for the deaths of other people, who are responsible for the crime of aggression, who just came to their neighbor states and took the land and killed the people, actually, they should be punished."
'We all know who's responsible'
That's also the aim of a new Joint Investigation Team (JIT) headquartered in The Hague, in the Netherlands, with coordination and funding from the European Union's judicial cooperation agency Eurojust, the participation of the International Criminal Court(ICC) for the first time, and an increasing number of individual governments, which plan to pursue cases themselves under the legal principle known as "universal jurisdiction."
Eurojust President Ladislav Hamran said this will become the largest such operation it's ever assembled.
"Never in the history of armed conflicts has the legal community responded with such determination," Hamran told reporters this week.
International legal cooperation
ICC Chief Prosecutor Karim Khan said the effort could become a model for international investigations.
"I think this is what is needed for crimes of the magnitude that we often see at the ICC. We need to build partnerships," Khan told reporters. "There's no dichotomy between cooperation and independence. Cooperation does not mean competition. Collaboration does not mean that it disputes one's independence. We have to join hands in the common interest of humanity as officers of the court."
Paths to justice for Ukraine
Among the most significant ways the JIT is trying to streamline and assist judicial processes is by centralizing the storage of evidence at Eurojust, evidence collected by experts inside Ukraine or in any other jurisdiction.
Eurojust will provide the JIT with technological assistance to collect data on war crimes and offer interpretation and translation for the investigating teams as well as their evidence.
"We will make sure that everything that is collected within this joint investigation team is actually shareable with all involved parties," Hamran said, adding that it would happen quickly and without the need for formal, time-consuming requests.
Acting against aggression
But even with improved cooperation, war crimes cases, such as those for murder or especially genocide, often take years to bring to trial due to the extremely high burden of proof.
Human rights lawyer Lotte Leicht suggests there's a quicker path to justice: Prosecuting the crime of "aggression," which targets those in power for making the decision to attack, rather than those who carry out the order.
"[Aggression] is not a crime where you have to prove that war crimes are actually being committed," Leicht said. "The very fact that you launched the war illegally against another country is enough. It's a much easier crime to prove, and it is much more straightforward in terms of who's responsible because it was announced publicly on television [by Russian President Vladimir Putin]. It is not a secret who rubberstamped it. It's not a secret who the top generals are who are now executing it.
"Every bomb, every shelling…every Russian tank" in Ukraine qualifies as a crime of aggression, she added.
Ukraine can try these cases too, Leicht said, but the law prohibits charging officials currently in office. That means another international tribunal should be set up to handle these cases, along similar lines to the Nuremberg Trials after World War II, where Nazi leaders were trialed.
Leicht said she believes this is most likely to happen under the auspices of Europe's top human rights body, the Council of Europe. Ireland, the council's current president, has expressed the intention to create such a court by the time its term ends in November.
All of this cooperation should make Kremlin insiders start to sweat a bit, Leicht said.
"To anyone who has counted on impunity forever, for very serious crimes, including the crime of of aggression, they should look at history," she said. "Those who made the exact same calculations in Europe — Milosevic, Karadzic, Mladic — they were wrong. They ultimately ended up in court."
On Tuesday in The Hague, flanked by Lithuania's top prosecutor on one side and the ICC's on the other, Iryna Venediktova expressed hope that's the way her legal battles will end too.
"I feel, I trust and I hope that with my international colleagues, with the international community of lawyers, we can speak about justice," she said. "We need justice. We want accountability."