Even if the place and time of a judicial investigation of alleged war crimes in Ukraine have not yet been determined, the EU is presenting a database for the collection and exchange of evidence.
Investigators from an international forensic team collecting evidence of war crimes in Ukraine
According to the Ukrainian public prosecutor Myroslava Krasnoborova, the Ukrainian courts are already dealing with alleged war crimes. 71,000 cases of suspected war crimes have been registered in Ukraine (as of February 23, 2023), she said on Thursday at a press conference in The Hague, Netherlands. Almost 300 people are listed as suspects and 99 people have already been referred to a court, according to the lawyer who is responsible for relations with Ukraine at the EU agency Eurojust. There are already judgments in 26 cases.
But the Ukrainian judiciary is not the only one dealing with the situation in Ukraine. According to Eurojust Vice-President Margarita Šniutytė-Daugėlienė, 20 states are conducting investigations. These include 14 unnamed EU countries, as well as the USA and Canada.
Proceedings for war crimes are complex and, above all, they need evidence. Among other things, witness statements must be taken and photos and videos secured. Eurojust, the EU agency for judicial cooperation, now wants to ensure that this evidence can be collected and exchanged.
New database for preserving evidence
On Thursday, the EU agency announced that a central evidence database would go into operation. This database aims to store, preserve and analyze evidence related to international crimes such as genocide, crimes against humanity and war crimes.
Eurojust representatives: from left to right: Margarita Šniutytė-Daugėlienė, Ladislav Hamran, Myroslava Krasnoborova and Matevz Pezdirc
André Klip, Professor of International and European Criminal Law at the University of Maastricht, considers such a database useful for later indictment. “There are an incredible number of places with a great many victims, a great many potential perpetrators, and at some point it all has to be listed in an indictment.” Before that, however, you first have to investigate and there are “millions of data that have to be evaluated and no one can actually do it alone.”
Eurojust is also aware of the importance of the database: “This database is a real game changer in the prosecution of international capital crimes,” Eurojust President Ladislav Hamran told the press.
The authority hopes that the database will not only uncover crimes committed individually, but also the system behind them. But also that it helps to prevent parallel investigations and protect victims by not having to testify multiple times and being retraumatized as a result. The database should be fully operational by the summer.
Preparations for a possible charge of aggression
In international law, aggression is defined as carrying out an attack that obviously violates the UN Charter. A new center is to be established at the EU judicial authority to prosecute this crime. This center goes back to a suggestion by EU Commission President Ursula von der Leyen and, according to the authority, is intended to promote investigations, secure important evidence and help at an early stage to gather the necessary facts for criminal proceedings.
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Difficult task for investigators from an international forensic team: Collecting evidence of war crimes using corpses from a mass grave (archive image)
Criminal law professor Klip says that this unit is about the preparation of an indictment for the crime of aggression, although it is still unclear in which criminal court this should then take place.
Place and jurisdiction of an indictment uncertain
Eurojust is also aware of this: “Of course you can see this as an interim step that should not anticipate the political discussion about a special tribunal for Ukraine,” says Margarita Šniutytė-Daugėlienė, Vice President of Eurojust. It should only be ensured that no valuable time is lost wherever the procedure then takes place.
The international criminal law expert Klip is surprised that the investigations are located at Eurojust – and not at the International Criminal Court. He suspects that the court in The Hague may be overburdened: “They already have a lot more on the table than they can handle. The proceedings are taking a long time,” says Klip. In his view, the International Criminal Court has more legitimacy than a special court and he holds it responsible.
The German Foreign Minister Annalena Baerbock after a visit to the International Criminal Court in The Hague (archive photo)
As far as the criminal offense of aggression is concerned, the discussion about the introduction of a special court has been going on for a long time guided. Already in November last year, the President of the European Commission, Ursula von der Leyen, advocated the establishment of a special court. In January, the German Foreign Minister Annalena Baerbock spoke out in favor of a special tribunal under Ukrainian law with international judges.
According to the Ukrainian public prosecutor Krasnoborova, all options are currently still on the table.