Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 69
Julio
Diciembre
2021
Recibido el 16/02/2021 Aceptado el 14/05/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 74-90
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Features of detection and obtaining
evidence of war crimes committed in the
context of international armed conict
DOI: https://doi.org/10.46398/cuestpol.3969.04
Tataryn Ihor *
Komissarchuk Yuliia **
Dmytryk Yurii ***
Maistrenko Mariia ****
Rymarchuk Olha *****
Abstract
The scientic article is devoted to a comprehensive
understanding of international legal, procedural, and
organizational problems of investigation of war crimes
committed during the military conict in the south and east of
Ukraine. It develops the author’s concept of investigation of war
crimes committed during the armed conict, scientically substantiated
theoretical provisions and specic patterns that are manifested in the
eld of legal support, organization of investigation, collection of evidence,
methods of investigation of crimes of this type. It is concluded that there
is a need to specify the components of war crimes in national legislation.
Recommendations for further improvement of criminal and criminal
procedure legislation of Ukraine in order to fulll the state’s international
obligations in the eld of international humanitarian law are given.
Keywords: war crimes; investigation; international armed conict:
gathering of evidence; investigative (search) actions.
* Candidate of legal sciences, Associate Professor, Senior teacher at the Department of Criminal
Procedure and Criminalistics, Lviv State University of Internal Aairs, Lviv, Ukraine. ORСID ID:
https://orcid.org/0000-0002-9517-2299. Email: ttihor@ukr.net
** Candidate of legal sciences, Associate Professor, Associate Professor at the Department of Criminal
Procedure and Criminalistics, Lviv State University of Internal Aairs, Lviv, Ukraine. ORСID ID:
https://orcid.org/0000-0002-5079-334X. Email: juliyakomis@gmail.com
*** Candidate of legal sciences, Associate Professor, Associate Professor of the Department of Operative-
search Activity, Lviv State University of Internal Aairs, Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-3929-3544. Email: tibet@ukr.net
**** Candidate of legal sciences, Senior teacher at the Department of Criminal Procedure and Criminalistics,
Lviv State University of Internal Aairs, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-
6996-7186. Email: justmarisabel2017@gmail.com
***** Candidate of legal sciences, Associate Professor at the Department of Criminal Process, National
Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0003-0062-9645.
Email: olgaRUM@ukr.net
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Características de la detección y obtención de pruebas
de crímenes de guerra cometidos en el contexto de un
conicto armado internacional
Resumen
El artículo cientíco está dedicado a una comprensión integral de los
problemas legales, de procedimiento y organizativos internacionales
de la investigación de los crímenes de guerra cometidos durante el
conicto militar en el sur y este de Ucrania. Desarrolla el concepto de
investigación del autor de los crímenes de guerra cometidos durante el
conicto armado, disposiciones teóricas fundamentadas cientícamente
y patrones especícos que se maniestan en el campo del sustento legal,
organización de la investigación, recolección de pruebas, métodos de
investigación de crímenes de este tipo. Se concluye que es necesario
especicar los componentes de los crímenes de guerra en la legislación
nacional de Ucrania. Se dan recomendaciones para seguir mejorando la
legislación de procedimiento penal y penal de Ucrania con el n de cumplir
con las obligaciones internacionales del estado en el campo del derecho
internacional humanitario.
Palabras clave: crímenes de guerra; investigación; conicto armado
internacional; recolección de pruebas; acciones de
investigación (allanamiento).
Introduction
The priority in the use of military force to resolve disputed national-
ethical, religious, political, territorial, economic, and other contradictions
remains among the essential features of modern reality. In ve and a half
millennia of the history of human civilization, there have been about 15,000
wars and armed conicts, in which more than 3.5 billion people have died.
Throughout its history, people have lived in peace for only 292 years, less
than one week every hundred years (Vakhrushev, 1999).
Despite the ratication by the international community of various
conventions on international humanitarian law and the ght against their
violations, as well as their partial implementation and nationally established
criminal liability for war crimes, virtually all wars and armed conicts are
accompanied by the commission of the most serious war crimes.
Almost everywhere in areas of armed conict, there is a violation of
the laws and customs of war, the use of prohibited means and methods
of warfare, related to the violation of the principles of selectivity,
76
Tataryn Ihor, Komissarchuk Yuliia, Dmytryk Yurii, Maistrenko Mariia y Rymarchuk Olha
Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
proportionality allowed in the process of missile and artillery, and
aviation missile strikes, recruitment, training, nancing and (or) the use
of mercenaries in hostilities, the destruction of settlements, executions in
the form of premeditated killings for political, ideological, racial, national,
religious hatred or enmity, torture and other inhuman treatment and
other atrocities which are inherently cruel. All the crimes mentioned above
cannot remain unpunished.
Unfortunately, a signicant part of criminal oenses remains
unpunished, and those responsible for them are not prosecuted using state
sovereignty. At the same time, the legal prospects for punishing criminals
are not entirely clear (Grigoryan, 2018). Personnel policy and gaps in the
manning of the defense forces are also acute problems. A critical factor is
the shortcomings in the ght against corruption in management and the
executive branch, as evidenced by the resonant scandals in law enforcement
agencies and the defense industry (Corruption in Defense – continuation –
Argument, 2019).
The confrontation in Donbas is one of the key challenges to Ukraine’s
national security. Despite the declared ceasere, the Ukrainian military
suers daily casualties. Thus, the problem of criminal prosecution of
representatives of the military-political leadership and individual servicemen
for committing war crimes during the armed conict initiated and provoked
by the aggressor is relevant for both Ukraine and other countries. Several
organizational and tactical issues related to the investigation of crimes in
this category also need to be addressed.
1. Methodology of the study
A comprehensive study of war crimes is possible only by combining
dierent methodological studies. The general scientic methods used in
the scientic article include a dialectical method, a deductive and a system
method, methods of analysis and synthesis.
The dialectical method of scientic cognition is a general and universal
method of forming legal concepts, it is a cognitive strategy that aims to
identify the causes, origins, and consequences of the studied phenomena,
their internal contradictions, connections, and relationships with other
phenomena. With the help of this method, it became possible to learn the
content of such categories as “war crimes”, “armed conict”, “gathering
evidence” and others. Methods of analysis and synthesis allowed to select
and analyze information on the research topic.
The essence of the system method is that the process of investigating war
crimes is considered as a certain system, which is included in the system of
77
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Vol. 39 Nº 69 (Julio - Diciembre 2021): 74-90
a broader order, performs certain functions, and is associated with various
connections. The systematic approach provided an opportunity to analyze
investigative and judicial practice, criminal cases, decisions of the European
Court of Human Rights in war crimes cases.
Special scientic methods used in writing a scientic article include a
hermeneutic, a formal-legal method, modeling and forecasting, sociological
and statistical methods.
The application of the hermeneutic method allowed to qualitatively
analyze and clarify the content of legal documents, including the provisions
of the Criminal Code of Ukraine and the Criminal Procedure Code of
Ukraine, which regulate the relevant legal relations in the study area. The
formal-legal method was used to formulate and interpret legal concepts
and categories. Sociological and statistical methods are used in the process
of studying the materials of criminal proceedings and generalization of
scientic results, the study of law enforcement practice. Modeling and
forecasting methods were used to formulate proposals for improving certain
provisions of the Criminal Code, the Criminal Procedure Code of Ukraine.
Thus, the author’s methodology of this study is a set of methods and
techniques based on a dialectical analysis of legal documents, empirical
data, as well as a critical understanding of the scientic literature on this
issue.
2. Analysis of the recent research
Some theoretical and practical aspects of criminal liability, procedures
for investigating war crimes committed in armed conict were considered
in the works of such scientists as Schwarzenberger G. (1968), Furkalo
V.V. (1982), Raskaley S.B. (1985), Belyy I. Yu. (2004), Simpson G. (2007),
Grigoryan G.M. (2009), Eliseev R.A. (2011), Skuratova A.Yu. (2012),
Mokhonchuk S.M. (2014), Rusinova V.N (2015), Mykhaylenko V.S (2017),
Koval D.O. and Avramenko R.A. (2019), Mazur M.V. (2020), Tkachenko
P.I. (2020), Chervyakova, O.V. (2020), and other authors.
However, there are some issues that need comprehensive analysis and
coverage. In particular, the issues of legislative regulation of legal relations
in the context of international armed conict, including the criminalization
of certain illegal acts, need an additional solution. It is necessary to improve
methodological approaches to the evaluation of legal programs and
the entire legal system in Ukraine, interpretation of the decisions of the
European Court of Human Rights, their use in investigative and judicial
practice (Matvieieva et al., 2021). It is also indisputable that certain tactical
and procedural “tools” for the investigation of war crimes committed in the
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Tataryn Ihor, Komissarchuk Yuliia, Dmytryk Yurii, Maistrenko Mariia y Rymarchuk Olha
Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
context of an international armed conict must be properly disclosed from
the standpoint of forensic science and criminal procedure.
3. Results and discussion
Given that war crimes can only be committed in the course of or in
connection with an armed conict, it would be logical to clarify its nature.
Undoubtedly, armed conict in all its manifestations is a deformation of
social relations, accompanied by sharp contradictions, widespread use of
weapons, the declining value of human life, rising levels of violence and
other crime, which is the root cause of war crimes.
An international armed conict occurs when an attack on the territory of
a state is carried out by another state, or by non-governmental formations
under the control of another state. In this case, the international armed
conict begins to be used after the rst shot against the territory of a state or
crossing the border by the armed forces of another state. The conict will also
be considered international if the third country has at least general control
over non-governmental armed groups. An occupation of the territory of
another state is equated to an armed conict of an international character,
even if such an occupation does not meet with armed resistance (Koval and
Avramenko, 2019).
The investigation of war crimes committed by participants in an armed
conict is usually carried out in a combat situation caused by hostilities
in areas of armed conict (Grigoryan G., pp. 33-36). Inuencing all
aspects of life, the combat situation aects the investigation of war crimes,
complicating a number of destructive factors in the process of detection,
detection and investigation of war crimes, identifying specically stable
links, dependencies, relationships and trends in this area.
Based on this, it can be argued that there are specic patterns of
investigation of war crimes committed in the eastern and southern
territories of Ukraine in the context of international armed conict.
According to S.V. Malikov, there are two directions of inuence of
negative factors caused by the armed conict on the organization and
methods of investigation of war crimes: direct inuence on its organization
and methods, as well as inuence through the special nature of war crimes
committed in armed conict (Malikov, 1998).
The process of investigating war crimes is also aected by the negative
factors caused by the international armed conict:
• national, ethnic, religious, or territorial causes of armed conict, as
well as often rather “vague” denition of the parties to the conict’s
purpose;
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Vol. 39 Nº 69 (Julio - Diciembre 2021): 74-90
• ignorance and unwillingness of political leaders and the command
of the parties to the conict to adhere to the norms of international
law;
• Insucient objective information about the armed conict, mutual
distrust of the opposing parties and the operation of a set of
unproven and sometimes “senseless” accusations;
• the use of political means by political leaders, military command
and media representatives of opposing parties with the use of
euphemisms (liquidation, cleansing, action, operation, etc.), which
mask the real goals and use of prohibited means and methods of
hostilities by the parties;
• a pronounced division of society into supporters of the relevant side
of the conict;
• justication by the opposing parties of the criminal actions of their
armed supporters or combatants by the circumstances and military
necessity, by reference to the actions of the opponent’s country;
• ignorance by combatants of the opposing parties of the norms
of international law and national norms of the Criminal Code,
condence in impunity, lack of eective sanctions by the command
to subordinates;
• Insucient advocacy and information of the public, government
agencies and ocials, marginalization and stigmatization of victims;
• increasing the level of public danger of war crimes committed by the
parties to an armed conict, as well as their consequences;
• the emergence of crimes that encroach on specic legal relations
arising in connection with an armed conict (in a combat situation,
on the battleeld, in the area of hostilities);
• committing serious violent crimes against representatives of the
opponent’s country out of revenge;
• the dependence of the level of a war crime on the duration, intensity,
scale of the armed conict, its economic and political consequences,
as well as the number of dead; n) the number and scale of war
crimes, as well as the steady increase in the level of war crime;
• the response of war crime to the military successes or failures of
another party to the conict, as well as the high level of articially
latent war crime;
• the response of war crime to the military successes or failures of
another party to the conict, as well as the high level of articially
latent war crime;
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Tataryn Ihor, Komissarchuk Yuliia, Dmytryk Yurii, Maistrenko Mariia y Rymarchuk Olha
Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
• a signicant number of crimes directly or indirectly related to the
presence of weapons in the warring parties, as well as the use of
modern methods and means of remote control of hostilities;
• committing war crimes in a state of alcohol or drug intoxication.
Of course, in order to eliminate or minimize the consequences of the
above negative factors for the investigation of war crimes committed in the
context of international armed conict, it is necessary to take measures to
improve information policy to prevent violations of international law.
War crimes are one of the most serious and serious crimes known to
mankind. Under international law, the state in which war crimes are
committed (Nazarchuk, 2020) is the most active in conducting investigations
and bringing perpetrators to justice. However, at present, Ukraine is not
always able to adequately respond to hostilities in the temporarily occupied
and adjacent territories. For example, in the Criminal Code of Ukraine, in
addition to Art. 438, there are no detailed rules that determine the illegality
of certain actions in a military conict. There is also no explanation of
what war crimes are, which are light, medium, severe, and the degree of
responsibility. This problem needs a comprehensive solution. Some lawyers
rightly consider the adoption of the law on transitional justice (Bida, 2021)
to be a way out of this situation.
Objective principles of determining the grounds for the application
(criminalization) or refusal to apply (decriminalization) of criminal law
inuence should be recognized as a constant problem of criminal law
(Kozachenko et al., 2021). It must be stated that those guilty of committing
most war crimes today, unfortunately, manage to avoid criminal prosecution.
One of the reasons is the imperfection of the legislation and its inconsistency
with international norms. Current Art. 438 of the Criminal Code of Ukraine
(“Violation of the laws and customs of war”) is quite generalized, so there
is an obvious need to specify the composition of war crimes in national law,
dening all serious violations of international humanitarian law as war
crimes. Thus, there is an obvious need to specify the components of war
crimes in national legislation (Nazarchuk, 2020).
Thus, the realities of today in the East and South of Ukraine indicate
the imperfection of certain provisions of the Criminal Code of Ukraine,
in particular the lack of legal norms that would correspond to the socially
dangerous act committed in the area of the anti-terrorist operation.
Currently, there is an urgent need to revise the sections of sections XIX-XX
of the Code in order to include in their composition the rules that would
provide for criminal liability for all actions against the interests of the
people of Ukraine.
In our opinion, for the eective work of the institutions of executive
power in Ukraine in this direction, there are not enough legislative tools
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that would promote more constructive work and increase responsibility
and accountability for actions and measures taken that would be: expected
signals for citizens of Ukraine in the occupation or were forced to leave
the occupied territory; signals for collaborators and violators of the
sanctions regime about the inevitability of liability for actions committed;
the leadership of other countries and international organizations, as a
conrmation of the sequence of actions of the Ukrainian authorities, in its
pursuit of de-occupation and reintegration of temporarily lost territories.
When applying Art. 438 (Violation of the laws and customs of war)
of the Criminal Code of Ukraine (Criminal Code of Ukraine, 2001) it is
necessary to focus on the practice of international criminal courts, doctrine,
authoritative comments on international economic law, and the provisions
of international treaties. However, the list of acts that may be considered
violations of the laws and customs of war does not necessarily coincide
with the list of Art. 8 of the Rome Statute or a list of serious violations
of international economic law. It can be extended, but not arbitrarily.
In any case, the expansion of the list of these acts should nd support in
international practice. Otherwise, Ukraine will almost certainly face cases
against itself in the European Court of Human Rights.
Due to the above-mentioned information, we propose to focus on the list
of acts that can be classied as violations of the laws and customs of war,
proposed in the bill “On Amendments to Certain Legislative Acts of Ukraine
to Harmonize Criminal Law with International Law” № 9438 (DRAFT LAW
OF UKRAINE, 2018). This list is in line with international standards and
Ukraine’s obligations under international treaties to criminalize violations
of international humanitarian law.
One of the signicant steps aimed at improving the eciency of the
investigation of war crimes, including those committed in the context of
international armed conict, is the signing by the Prosecutor General of
Ukraine on October 21, 2019 of an order establishing the Department of
Supervision of Criminal Proceedings. armed conict, whose activities
will focus on overseeing the investigation of crimes committed in the
temporarily occupied territory of the Autonomous Republic of Crimea and
the city of Sevastopol, in the temporarily occupied areas of Donetsk and
Lugansk regions and in armed conict (Department for war crimes has
been established in the Prosecutor’s Oce of Ukraine). All this creates a
vertical for coordinating the eorts of all law enforcement agencies in
the investigation of war crimes and crimes against humanity, which will
contribute to the systematic recording and systematization of evidence.
Concluding the consideration of the conceptual issues of improving the
state of the ght against war crimes in the context of international armed
conict, we turn to the study of the peculiarities of detection and collection
of evidence during the investigation of these crimes.
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Tataryn Ihor, Komissarchuk Yuliia, Dmytryk Yurii, Maistrenko Mariia y Rymarchuk Olha
Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
Procedural and organizational aspects of the investigation of war
crimes committed in armed conict currently remain one of the least
developed problems in the theory of criminal procedure and international
law (Vinokurov, 2011). In our view, unlike the criminal process in its usual
sense, the implementation of the war crimes investigation procedure needs
to be revised and improved.
We share the position of G.M. Grigoryan, who points out that the
complexity and multifaceted problem of determining the procedural
order of investigation of war crimes is due to the following features: a high
degree of interference in the internal aairs of the state, which signicantly
aect the national interests of the other side of the armed conict; the
prosecution of persons who have committed war crimes in the territory
of another country-participant to the armed conict and fall within its
jurisdiction in particular; one of the parties in whose territory the crime was
committed, for some reason, does not provide an objective and qualied
investigation, and in some cases opposes the investigation; limited ability
to gather evidence in the territory of the opponent’s country, when there
are some witnesses, suspects, etc.; lack of legal regulation of the grounds
and procedure for conducting investigative and other procedural actions
on the territory of the other party to the conict; the inevitable conict of
constitutional, procedural and substantive norms in force in the territory
of the parties to the conict; non-fulllment by the parties of requests for
international legal assistance, etc. (Grigoryan, 2018).
A fundamental feature of the procedural order of investigation of war
crimes is that the perpetrators belong to the parties to the conict, and to
establish the involvement of specic servicemen (pilots, gunners, snipers,
etc.) of the other party who gave and carried out airstrike orders, artillery
shelling and destruction of civilians, other war crimes, proof of guilt, etc. It
is believed that national investigative bodies, guided solely by the provisions
of the Criminal Procedure Code of Ukraine, without eective international
law and mechanisms for investigating such crimes, without investigative
and procedural actions in the territory and with the participation of the
other party to the armed conict or lack of truce, will not be able to use the
potential of criminal procedural means and to ensure the investigation and
prosecution of other parties to the conict responsible for war crimes unless
military-violent scenarios are considered, which are purely hypothetical.
At the same time, after instituting criminal proceedings in this category
under the principle of extraterritorial criminal jurisdiction, at the stage of
investigation and presentation of evidence to representatives of the other
party to the conict, national law enforcement agencies face the problem
of limiting their powers under the national Criminal Procedure Code. At
the same time, the fact of instituting a criminal case against representatives
of the other side of the conict does not yet indicate that any of them will
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be prosecuted. This problem goes beyond the capabilities of the national
Criminal Procedure Code or giving international treaties legal force within
the legal system of Ukraine.
Attention will be paid to some problems that arise in the qualication of
war crimes committed in an international armed conict. The qualication
of war crimes and the full use of international humanitarian law should be
based on an objective criterion, namely the existence of an international
armed conict, and not on the geographical element or status of the
belligerents, as there is no reason why non-international victims of armed
conicts should be treated dierently from victims of international armed
conicts, recognizing similar acts as war crimes in some cases and not in
others. At the same time, there is a direct dependence of the qualication
of war crimes committed by the parties to the armed confrontation on its
nature. Based on the above, we analyze the nature of the armed conict
in the south and east of Ukraine, which, in our opinion, has all the
characteristics of an armed conict of an international nature, and qualies
as international.
Vinokurov A. Yu. rightly notes that the process of qualifying war crimes
is three main successive stages. The rst establishes the presence of
material elements (acts, consequences and other circumstances specied
in the denition of a war crime). Concerning war crimes and crimes
against humanity, armed conict or an attack on the civilian population
are considered to be signicant circumstances. The second establishes the
presence of a mental element, which determines that the material elements
were committed “intentionally and consciously.” The third establishes the
existence of circumstances that preclude criminal liability. Besides, it is
necessary to establish which violations of international humanitarian law
took place and under what conditions it will lead to the individual criminal
liability of an individual (Vinokurov, 2011).
At the initial stage of the investigation, the investigator’s extremely
important task is to nd out which unit involved in the conict committed
the crime. This requires proof of the link between the incident and the
armed conict, in particular: conrmation of the fact that the commanders
of certain military structures organized, coordinated, or planned military
operations of the unit, that they are funded, trained, equipped and directed
by government ocials. It should be noted that crimes committed by the
military against its own army/unit cannot be qualied as war crimes (Koval
and Avramenko, 2019).
The investigator also needs to nd out whether the victim belongs to
one of the categories of protected persons, which include: the wounded;
prisoners of war; civilians. Intentional homicide, torture or inhuman
treatment, intentional iniction of severe suering or serious bodily
injury or damage to health, large-scale destruction and misappropriation
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Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
of property not caused by military necessity, etc., committed against such
persons are war crimes.
The organization of the work of the investigative group has certain
peculiarities, which depend on the following circumstances: the initial
investigative situation; the stage of the initial or subsequent investigation;
investigators who are a part of the investigative team, their experience
in investigating crimes of this type; how many witnesses need to be
questioned; seizure and inspection of the amount of combat and operational
documentation to be carried out.
A feature of the investigation of crimes committed by servicemen in the
area of anti-terrorist operation / joint forces operation on the eastern and
southern borders of Ukraine is the detection and investigation of crimes
“in hot pursuit” and the use of group (brigade) investigation to improve the
quality and eciency of investigation.
Therefore, the need to establish an investigative team in the
investigation of criminal cases of this category may arise both at the initial
and subsequent stages of the investigation. In our opinion, only such a
method of investigation is most acceptable in the temporarily occupied and
adjacent territories of Ukraine and is the only one possible to improve the
quality of the investigation of war crimes. The main task of the investigation
“in hot pursuit” is to quickly identify the person who committed the crime,
and in favorable cases, his detention as a result of immediate primary and
urgent investigative actions and operational and investigative measures
(Yablokov, 2003).
The possibility of applying the method of investigation “in hot pursuit”
is due to the peculiarities of the investigative situations of the initial stage of
the investigation and depends on the following factors: the insignicance of
the time elapsed from its commitment to the beginning of the investigation;
preservation of the material situation at the crime scene in full or without
signicant changes; the existence of unfavorable objective and subjective
conditions that prevent the preservation of the material situation of the
scene and its traces in the same form; the possibility of immediate search
and search activities in a specic relatively localized area of the crime;
availability of means of rapid notication and immediate arrival of the
investigative task force to the crime scene; availability of technical and
forensic means of working with traces in the mode of “express analysis”;
appropriate professional level of investigators.
Based on the general plan of the investigation and taking into account the
individual instructions of the head of the investigation team, each member
of the investigation team draws up a detailed individual plan of their work.
As for the peculiarities of the organization of the work of the investigative
team, they depend on the following circumstances: the initial investigative
85
CUESTIONES POLÍTICAS
Vol. 39 Nº 69 (Julio - Diciembre 2021): 74-90
situation; the stage of the initial or subsequent investigation; investigators
who are part of the investigative team, their experience in investigating
crimes of this type; how many witnesses need to be questioned; seizure and
inspection of the amount of combat and operational documentation to be
carried out.
Particular attention needs to be paid to the study of the peculiarities
of the collection of evidence of war crimes committed in the context of
an international armed conict by authorized participants in criminal
proceedings. First of all, it is a question of carrying out such investigative
(search) actions as inspection of a scene and interrogation.
Obtaining and recording evidence during the investigation of artillery
attacks in the study of impact craters is an important step in determining the
direction from which was red. The red areas must be inspected as soon as
possible. Craters are quickly exposed to the elements and the intervention
of military and civilians, losing their value as a source of information.
The main task of the investigator on arrival at the place of re is to isolate
and fence among other ditches those that will give the most information
about the origin of the attack. The main thing is to clarify with witnesses
and see for yourself that it was formed during the shelling, the fact of
which is being investigated. At the scene, the investigator should: set the
coordinates of the place of re, make a panoramic video of the scene (Koval
and Avramenko, 2019).
The procedure of interrogation during the pre-trial investigation has its
characteristics due to the conditions of the combat situation. In the area of
armed conict, investigators must conduct this investigative (investigative)
action most competently, fully and exhaustively, using control and detailed
questions, because the conditions of the combat situation may not allow
additional or repeated interrogation in connection with death, injury,
captivity. or a business trip of the interrogated serviceman.
Analysis of the investigative practice of military investigative bodies
shows that in most cases interrogations are conducted descriptively and in
sucient detail about all the circumstances directly related to the criminal
case. However, investigators do not take sucient measures to verify the
testimony of the interrogated, do not ask control questions. As a result, a
fairly complete and rich interrogation report is obtained, which contains
important testimonies for the case, but it is impossible to judge how reliable
these testimonies are by such an interrogation report. This error is always
negatively reected throughout the investigation, but it is especially negative
for the practice of military investigative bodies in the area of armed conict,
where the opportunity to nd any evidence other than the testimony of the
interrogated person is extremely limited (Grigoryan, 2009).
In addition, in contrast to the interrogation conducted in peacetime,
86
Tataryn Ihor, Komissarchuk Yuliia, Dmytryk Yurii, Maistrenko Mariia y Rymarchuk Olha
Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
the interrogation in a combat situation, in our opinion, is complicated by
the situation of obtaining evidence (mobile forensic laboratory, dugout,
tent, shell funnel, ruins, trench, shelter or other inconvenient premises or
terrain). This situation often does not contribute to the establishment of
psychological contact with the interrogated and does not create a favorable
atmosphere for the investigative (search) action.
One of the main tactics of interrogation used in the investigation of
war crimes in the area of anti-terrorist operation / joint force operation
in Ukraine. Regardless of whether the investigator has doubts about the
objectivity of the testimony of the interrogated, should be detailing these
testimonies, as the formulation of detailed and control questions in order
to clarify and verify the circumstances of the criminal oense is extremely
important.
In a combat situation, the time for interrogation is limited, and therefore
the list of interrogation tactics used is limited. Therefore, during the
interrogation, the investigator must, in the shortest possible time, obtain
the maximum amount of evidentiary “express information” necessary for
the organization of the investigation, including on “hot leads”. Hence the
relative “brevity” of the interrogation protocols, which often reect only the
main circumstances of the investigated event and there are no answers to
which are detailed and control questions to clarify and verify the testimony.
In areas of armed conict, the investigator must take into account and
assess the mental, emotional and psychological state of the interrogated, as
well as the possible consequences of combat mental injuries received during
hostilities or as a result of war crimes, and choose the most appropriate and
procedural acceptable tactics for obtaining evidence.
Thus, the use of these methods of interrogation will allow the investigator
to prepare for the interrogation, which, in our opinion, will allow him to
establish with maximum completeness and accuracy the circumstances of
the evidence in criminal proceedings, to determine in advance the choice
of tactics, sequence of questions work out several versions. In addition,
the use of a common standard interrogation program by investigators will
help, rationally using time, to draw up an individual interrogation plan
for the specic investigative situation of the initial or subsequent stage of
the investigation, the specic circumstances of the criminal case and the
individual.
The process of gathering evidence can be optimized only by adapting to
the conditions of the armed conict of the certifying party of this procedure.
Strengthen the evidence side and at the same time provide a “shorter”
and secure access to sources of evidence can be only done by using new
technologies to capture information. However, not all investigative (search)
actions held in peacetime can be carried out quickly and successfully in areas
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of armed conict. We believe that in order to adapt them, some changes in
the procedure are needed to simplify certain investigative (search) actions,
provided that formalism is avoided and the purpose and semantic essence
of these methods of gathering evidence during the pre-trial investigation
are taken into account.
Conclusions
Based on the results of the problems covered in the scientic article, we can
draw some conclusions. In our opinion, the need to specify the components
of war crimes in national legislation is obvious. Pre-trial investigation
bodies, guided only by the provisions of the national Criminal Procedure
Code, without taking into account international law and mechanisms for
investigating war crimes, without conducting investigative and procedural
actions on the territory and with the participation of the other party to
the armed conict or procedural means and to ensure the quality of the
investigation and the possibility of prosecuting the representatives of the
other side of the conict responsible for such illegal actions. National law
enforcement agencies should extend criminal law to perpetrators outside
the state and exercise their criminal jurisdiction over representatives of
the country initiating the armed conict based on the principle of passive
citizenship, which provides for the extension of criminal law depending on
the nationality of the victim or the principle of protection, which provides
for the spread of criminal law of the state depending on whether the
interests and security of the state are violated.
Increasing the investigation of war crimes committed in the context of
international armed conict is the detection and investigation of crimes
“in hot pursuit” and the use of group (brigade) method of investigation to
improve the quality and eciency of the investigation. Only such a method
of investigation is most acceptable in an armed conict and is the only one
possible to improve the quality of the investigation of war crimes.
We consider it necessary to develop methodological recommendations
for the investigation of certain types of war crimes and an algorithm for
conducting some investigative (search) and other procedural actions,
as the eectiveness and quality of investigation of war crimes, including
those committed by armed parties, is achieved by eective investigation
planning and rationalization. investigative (search) actions in order to
neutralize or reduce the impact of destructive factors of armed conict on
the investigation of these illegal acts.
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Features of detection and obtaining evidence of war crimes committed in the context of
international armed conict
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 69