The IBA’s response to the war in Ukraine
The IBA interview: Andriy Kostin, Prosecutor General of Ukraine
Image credit: Andriy Kostin, the Office of the General Prosecutor of Ukraine
Andriy Kostin was appointed the Prosecutor General of Ukraine on 27 July, five months into the country’s war with Russia. With his team of 9,000 prosecutors, he is responsible for pre-trial investigations, representing the State’s interests in the courts and supporting public prosecution. He also oversees the activities of the Specialised Anti-Corruption Prosecutor's Office (SAPO), which works with, but has procedural autonomy from, the Office of the Prosecutor General.
At the end of September, Kostin spoke exclusively to Global Insight about the challenges of investigating and prosecuting war crimes during an active conflict, his determination to root out corruption and why it is so important that ‘rule of law prevails over the rule of force’.
Ruth Green (RG): You are two months into your role. How has the transition been and how do you feel that your previous experience as a lawyer and lawmaker have helped you in your role so far?
Andriy Kostin (AK): I think that the wide range of experience – being a practising attorney, working in the Parliament on the judiciary and now holding the position of the Prosecutor General – has been very helpful to see the problems not only from the very practical point of view as a prosecutor, but from different angles. I think that’s important and helpful.
People usually say you need three to six months to understand what's going on. We are at war. We have no time. From the very first day, I was in the process of reorganising some of the departments at the Office of the Prosecutor General. In particular, I have increased the number of prosecutors in the War Crimes Department and the department in charge of the national security related cases. I also established a unit that will be dealing with conflict-related sexual violence crimes. I want the system to be more practical and efficient, especially during the wartime, because our priority is effective investigation and prosecution of war crimes, cases of treason and acts of collaboration.
RG: You mentioned that often people when they start a new job, they're given a bit of time to settle into the role. You have had no time.
AK: I have had no time. From the very first day in office, I have had a lot of meetings, including meetings with our international partners and the projects that support our Office.
My two main priorities are, firstly, to fight against everything related to the war and the aggressor, which includes investigation and prosecution of war crimes and crimes against the state security. The other top priority is the fight against the internal enemy – corruption.
If such people work in law enforcement agencies or state authorities, this creates a high level of risk, not only for state security, but also to the security of our people
My first decree, or order to sign, was the appointment of the head of the Specialised Anti-Corruption Prosecutor's Office (SAPO), which will be dealing with the top officials' corruption cases. There are also a lot of cases of corruption at the lower level with which other law enforcement agencies are dealing.
One of my first decisions was to start an internal investigation at the regional Prosecutor's Offices that were under temporary occupation in order to gather and examine all information about what was going on there. I think in a few weeks we will have the results of this internal investigation.
We know there are some people who are helping the aggressor. It’s a top priority to find all of them and to try to stop their activity – make them responsible or liable for what they did. If such people work in law enforcement agencies or state authorities, this creates a high level of risk, not only for state security, but also to the security of our people.
RG: Can you give me an idea of the scale of the investigations that you're looking at now? And what are the main crimes and the nature of the crimes that you're examining and focussing on?
AK: We have registered around 36,000 incidents of war crimes. According to the official data we can confirm a death toll of 7,500 civilians, including 397 children. This is information up to yesterday. Today, we have already witnessed another mass killing of civilians. It was in the morning in Zaporizhzhia – four S-300 missiles killed 25 civilians. I've been informed by my prosecutors that more than 50 were wounded, there are casualties among children (killed and wounded). This is what we face. The attacks against civilian objects happen on a daily basis, or even several times per day.
All of these war crimes are immediately registered and documented. The majority of these cases relate to destruction of property, civil infrastructure or apartments. We are in the process of preparing specific IT solutions with the help of our international partners to review all these cases in order to avoid any duplication because it's so very difficult to do it by hand.
We have war crimes related to death, people who are wounded by the Russian army or Russian missiles or bombs, etc. Then we have people who were tortured or raped as well as cases of forced deportation and filtration camps. We are dealing with the cases of wilful killing and torture of people in the occupied territories: the incidents in Bucha, Irpin and now Izium – practically in every town in the Kharkiv region – we are discovering more and more cases.
Kostin meeting the US Attorney General, Merrick Garland at the Department of Justice in September, United States.
There are 28 mobile investigative groups including prosecutors, investigators, police officers and experts so they can work in parallel in different locations. Let me also mention two leading cases. One case is about the crime of aggression, where we have more than 626 suspects. So, this is like an ‘anchor case’ against top military and political leadership who took decisions about the aggression.
The other ‘anchor case’ is related to the crime of genocide. We now can prove the widespread and systematic pattern of attack against Ukrainians due to their identity and that has nothing to do with the combatants engaged in armed clashes. We are all witnesses of the policy of demographic change through forced deportation of hundreds of thousands of Ukrainians to Russia, Belarus or their transfer to the occupied territories, along with the establishment of the filtration camps and a deliberate policy of forced deportation of Ukrainian children. As we say, they are stealing the future of the Ukrainian nation.
RG: Based on everything you’ve said so far, do you think that your Office is building a case to charge Putin with genocide?
AK: We are collecting the evidence. The case of genocide is not a very simple case. From a legal point of view, there is no possibility to convict and even to prosecute the highest political leadership of Russia for the crime of genocide within the Ukrainian legal system. The possible way is to deal with the case at the level of the International Criminal Court (ICC) and we are in contact with the Prosecutor on this matter.
If we're talking about the conviction of the highest political and military leadership of Russia, the most important way is to punish them for the crime of aggression. Due to legal constraints, the ICC has no jurisdiction over such a case. Therefore, our strong position – not only the political leadership of Ukraine but all Ukrainians – is to have an international tribunal to prosecute and punish for the crime of aggression the responsible highest political and military leaders of Russia.
If everyone believes that the crime of aggression was committed, we need to have a legal instrument at hand
To have this tribunal under the auspices of the UN we require the decision of the Security Council, but we all understand that Russia and, probably one more permanent member, can impose a veto on such a decision. There is no sense to wait for a successful vote at the level of the Security Council. We understand that the second possible option is through the UN General Assembly Resolution that will make it easier for many countries that really believe and agree with the position that Russia is responsible for the act of aggression to take the political decision and join an international treaty creating such a tribunal.
RG: These things can take years. Ukraine doesn't have years. Do you think that it will be done in time?
AK: If we wait until our victory, until the war has ended and then start this, we will lose the time. We need to respond and act all at once – establish a tribunal, a mechanism for confiscation and compensation, prepare cases for the ICC – not only for specific war crimes, which could be easier to prosecute if we collect enough evidence, but also for the crime of genocide, which will be a more complex case and will take more time to prove. We all understand that the crime of aggression should be punished on an international level. If everyone believes that the crime of aggression was committed, we need to have a legal instrument at hand.
RG: You mentioned evidence earlier and the challenges of gathering verifiable evidence in terms of duplication. We know also that you're working with international partners, with certain technological initiatives to try and ensure evidence is valid, verifiable and can be brought to whichever court to prosecute people for these crimes. Can you comment on that at all?
AK: We are very grateful for the support we received from our international partners, especially to deliver open-source intelligence information and to civil society organisations, who also collect a lot of this information and are sharing this information with us. We are also looking for other IT solutions to analyse the massive scale of data in order to match the specific evidence with a specific incident of a war crime, collaboration activity or state treason. This is very challenging, especially for the cases where we have no access to the place on the ground, like Mariupol, like the massive killing of our prisoners of war in the Olenivka camp on the temporary occupied territory.
Andriy Kostin, the Office of the General Prosecutor of Ukraine
We are also encouraging use of the Berkeley Protocol as a methodology for verification of materials, especially photographs and videos which we assembled via open-source intelligence sources in order to secure authenticity of evidence and the chain of custody. We have created a special online platform with the help of our partners – warcrimes.gov.ua – that has been functioning since March of this year. It's open and anyone can send information about the evidence of war crimes. Now, we have received more than 18,000 notes on alleged war crimes.
I would like also to mention the eyeWitness app of the IBA. I actually remember the time when it was first launched. We are currently in the process of negotiating a memorandum of understanding with the International Bar Association, including the conditions of our potential use of the data gathered by the IBA’s eyeWitness app in the course of investigation. This app saves the metadata of all evidence, which is critically important because it could be used to reconstruct the specific crime scene of a specific war crime.
We are also closely following the reporting of fact-finding missions at the international level like the UN Mission and Inquiry Commission, of non-governmental organisations like Human Rights Watch and of research institutions like Conflict Laboratory that rely on open-source information.
We all believe that we need to prove to Ukrainians and to the civilised world that the rule of law prevails over the rule of force
Our prosecutors are not only acquainted with these sources of information, but they are also constantly [being] trained. Many colleagues from different countries are not only providing this training through online sources, but also help on the ground.
It's so important for our prosecutors and for our people that they see this not only military, not only financial, not only legal, not only political support, but they really see people who are ready to come to Ukraine, who are ready to work in Ukraine in not very safe conditions, but they are ready to do it. They are ready to deliver their experience because we all believe that we are fighting for justice as our soldiers are fighting for our sovereignty and territorial integrity on the battlefield.
We – prosecutors, lawyers, experts, law enforcement agencies and international partners – are all fighting for justice in Ukraine and at the international level. We all believe that we need to prove to Ukrainians and to the civilised world that the rule of law prevails over the rule of force. This is our main goal and all together, united, we will reach it. I believe in it.