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 cientíca 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.40 N° 72
Enero
Junio
2022
Recibido el 22/09/2021 Aceptado el 01/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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Vol. 40, Nº 72 (2022), 670-689
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
International guidelines for
managing investigation and collection
of evidence of war crimes
DOI: https://doi.org/10.46398/cuestpol.4072.39
Nataliia Kononenko *
Valeriy Patskan **
Maryna Hromova ***
Halyna Utkina ****
Serebro Mykhailo *****
Abstract
The article is devoted to the peculiarities of the international
regulations of the organization of the investigation and collection
of evidence of military crimes. The objective is to analyze the
eective minimization of the impact of destructive factors on the
investigation of military crimes, so it is necessary to create a special
governmental institution to cooperate with the International
Criminal Court with the appointment of national coordinators in relation
to amendments to the Code of Criminal Procedure of Ukraine, which
provides for the possibility of investigation. The methodological basis
of the research was the methods and techniques of scientic knowledge,
specically the main method of research was the dialectical method. It is
concluded that the concept of investigation of military crimes committed in
armed conict and criminal prosecution of perpetrators can be dened as
of important scientic and practical signicance, a holistic interdisciplinary
comprehensive theoretical system of activities under special conditions,
which generally combines theoretical provisions on specic patterns in
the eld of legal support, organization of investigation and collection of
evidence of military crimes. : search, arrest and transfer of ocials involved
in military crimes and implementation of international proceedings against
the accused.
* Candidate of Law, Senior Lecturer, Department of Criminology and Forensic Science of National
Academy of Internal Aairs. ORCID ID: https://orcid.org/0000-0002-0298-3958
** Chairman of the Accounting Chamber of Ukraine, Associate Professor of Administrative, Financial and
Information Law, Doctor of Law, Ukraine. ORCID ID: https://orcid.org/0000-0002-5104-9811
*** Candidate of Law, Leading Research Fellow, Tara’s Shevchenko National University of Kyiv. ORCID
ID: https://orcid.org/0000-0003-2177-6468
**** Candidate of Economic Sciences, Associate Professor, Donetsk State University of Internal Aairs.
ORCID ID: https://orcid.org/0000-0001-7513-4407
***** Candidate of Law, Associate Professor of the Department of General Theory of Law and State of
the National University "Odessa Law Academy". ORCID ID: https://orcid.org/0000-0002-9942-3876
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CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 670-389
Keywords: international humanitarian law; military oences; criminal
investigation; evidence collection; proper judicial process.
Reglamento internacional de la organización de
investigación y recolección de pruebas de delitos
militares
Resumen
El artículo está dedicado a las peculiaridades del reglamento internacional
de la organización de la investigación y recolección de pruebas de delitos
militares. El objetivo consiste en analizar la minimización efectiva del
impacto de los factores destructivos en la investigación de delitos militares,
por lo que es necesario crear una institución gubernamental especial
para cooperar con el Tribunal Penal Internacional con la designación de
coordinadores nacionales en relación con las enmiendas al Código de
Procedimiento Penal de Ucrania, que prevé la posibilidad de investigación.
La base metodológica de la investigación fueron los métodos y técnicas
del conocimiento cientíco, especícamente el método principal de
la investigación fue el método dialéctico. Se concluye que el concepto
de investigación de delitos militares cometidos en conictos armados
y enjuiciamiento penal de los perpetradores puede denirse como de
importante signicado cientíco y práctico, un sistema teórico integral
interdisciplinario holístico de actividades en condiciones especiales, que
generalmente combina disposiciones teóricas sobre patrones especícos
en el campo de apoyo legal, organización de la investigación y recolección
de pruebas de delitos militares: búsqueda, detención y traslado de
funcionarios involucrados en delitos militares e implementación de
procesos internacionales contra los imputados.
Palabras clave: derecho internacional humanitario; delitos militares;
investigación penal; recolección de pruebas; proceso
judicial adecuado.
Introduction
Prohibition of criminal oences against the peace, security of humanity
and international legal order under present-day conditions is necessitated
not so much by the incidence of criminal oences as by the extremely high
level of their social danger. For example, Article 7 of the Law of Ukraine
“On Fundamentals of National Security of Ukraine” denes that criminal
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Nataliia Kononenko, Valeriy Patskan, Maryna Hromova, Halyna Utkina y Serebro Mykhailo
International guidelines for managing investigation and collection of evidence of war crimes
activities against the peace and security of humanity are currently the main
real and potential threats to the national security of Ukraine and social
stability (Law of Ukraine, 1993).
Soon after its independence was declared, Ukraine chose the course
towards ensuring the fundamental principles of protecting human rights
and freedoms, rmly established in the international community. In 2001,
for the rst time in the history of the national criminal legislation, the new
Criminal Code of Ukraine was supplemented by Chapter XX “Criminal
oences against peace, security of mankind and international legal order”.
Armed conicts are mainly provoked by existing contradictions that
cannot be resolved in a peaceful, non-military way. Present-day armed
conicts are usually caused by ethnic, national, religious interests of a
large group of people and contradictions originated therefrom. According
to the Stockholm International Peace Research Institute, a half of 205
major armed conicts taking place from 1989 to 1994 were caused by the
power struggle in the country, the rest being related to control over the
territory, struggle for autonomy, national and ethnic problems, and other
antagonistic contradictions.
According to the United Nations Organization, the conict in eastern
Ukraine has been one of the deadliest in Europe since World War II.
During the War in Donbas, 13,000 people have died, 28,000 have been
wounded, and approximately 1.8 million inhabitants of Donbas and Crimea
have become internally displaced persons. Ukraine has suered immense
nancial and economic losses. Twenty-seven percent of Donbas’s industrial
potential were illegally transferred to the Russian Federation, including the
equipment of 33 local industrial giants (The war in the Donbass, 2019).
War crimes are directly related to the international criminal law. They are
particularly dangerous to humanity, undermining the international security
and law enforcement system. Longstanding eorts of the international
community have yielded tangible results, represented in international legal
norms that establish the grounds and conditions of responsibility for crimes
against the peace, security of humanity and international legal order. After
the Rome Statute was signed in 1998, the International Criminal Justice
Authority, which is responsible for prosecuting those charged with genocide,
war crimes, crimes against humanity and aggression, has been ocially
operating on a permanent basis since July 1, 2002 (Bibik and Kulyk, 2014).
As is well known, international organizations have been created by
states to jointly solve global problems. The essence of the latter is that states
are not able to solve them on their own. The problem of armed conicts and
violations of humanitarian law that occur during armed conicts, especially
against the background of recent events in Ukraine, Syria and the Middle
East, is denitely the most vivid example of the fact that these problems
cannot be solved by only one, even the most powerful, state.
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At the 2005 World Summit, United Nations member states recognized
that genocide, criminal oences against humanity, and war crimes are
so dangerous that the world population needs collective international
protection against these actions. In this regard, the international
community, acting through the United Nations, has committed itself to
using diplomatic, humanitarian and other peaceful means to protect the
population from international and, in particular, war crimes (Art. 139 of
the Outcome Document). The states have also agreed to support United
Nations eorts to provide early warning of these actions. At the same
time, the obligation of members of the international community to stop
mass violations of human rights cannot be considered an innovation in
international law and practice of international relations.
Thus, in the 21st century, the world community keeps emphasizing the
universal nature of actions against war crimes, and the United Nations
remains the leading international organization aimed to solve the problems
evoking concerns of the entire world community.
Unlawful acts committed in the context of an armed conict and
prohibited by the whole international community must not go unpunished.
Their prevention must be ensured both by measures taken at the national
level and by intensied international cooperation. Disclosure and
investigation of international proceedings require international cooperation
of government institutions to search for international criminals.
The need for such cooperation determines the requirements of practical
activities of national law enforcement agencies to seize evidence in the
territory of other states, to ensure implementation of statutory criminal
procedure functions and administration of justice. The latter is guided,
on the one hand, by international legal norms and, on the other hand, by
the provisions of national criminal and criminal procedure legislation.
According to scientic research, the nature, concepts and objectives of
international cooperation between public authorities have undergone
signicant changes recently.
The reasons for low eciency of law enforcement activities are quite
numerous, including the lack of methods for investigating transnational
and international crimes, inadequate qualications, lack of relevant skills
to detect criminals, manage and conduct investigative (search) activities
while investigating war crimes.
1. Materials and methods
Methodologically the study is based on the methods and techniques
of scientic knowledge. Their application is determined by a systematic
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International guidelines for managing investigation and collection of evidence of war crimes
approach, which enables to consider the problems of the research in the
integrity of their social content and legal form. The key method of the
research is dialectical method, the laws, and categories of which made it
possible to dene the essence of war crimes, as well as the peculiarities of
international guidelines for their investigation, considering national legal
regulatory specicities of particular procedural actions.
The laws of formal logic and its methods, such as induction and
deduction, analysis, and synthesis, allowed determining the structural
and logical scheme of the scientic research, identifying the properties
and features of the legal nature of war crimes and the problems of their
criminalization at the national level. System-based analysis, systematic
structural method and formal logic method enabled to clarify the
conceptual basis of managing investigation of war crimes, subject to proper
legal procedure in accordance with the customary international law and
its practical application in an armed conict. Dogmatic method made it
possible to interpret legal categories and clarify the concepts.
Functional method allowed identifying the stages of investigation
management, as well as conceptual organizational measures going beyond
individual criminal proceedings, non-acceptance of which has a direct
destructive eect on war crimes investigation. Typological method was
applied when clarifying the appropriate legal procedure for investigation
management and collection of evidence of committed war crimes.
Modeling and forecasting methods enabled to formulate proposals on
improving particular provisions of national legislation in accordance
with the requirements of international humanitarian law and its practical
application in the investigation of criminal oences committed in an armed
conict. Sociological and statistical methods were applied when analyzing
and generalizing the empirical basis of the study.
2. Analysis of the recent research
The research of international humanitarian law and criminal procedure
both in Ukraine and abroad is currently represented by a signicant
number of works analyzing the processes of formation and development
of international criminal justice system, as well as specicities of managing
investigation of war crimes and collecting evidence thereof. Research in this
area includes the works of M. Antonovych, V. Vasylenko, M. Hnatovskyi,
N. Driomina-Volok, N. Zelinska, O. Kasyniuk, I. Kolotukha, V. Pylypenko,
I. Strokova, K. Ambos, J. Bischo, G. Boas, W. Morris, J. Stewart, H. Thams,
O. Tritener, M. Scharf, etc.
The research of the abovementioned authors on this problem is of
important theoretical and practical value. The ideas they formulated
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found their application in legislation being positively perceived by the
international law enforcement practice. At the same time, some works
do not take into account current rapid development of judicial practice in
this area, which necessitates reassessment of previously made conclusions
due to the new interpretation of particular provisions of international
treaties or construction of new approaches. Besides, most of these works
lack systematic approach to the management of investigating war crimes
committed in a military conict.
This poses a need for a new theoretical comprehension of management
and development of interagency and interstate cooperation in the
investigation of war crimes, taking into account current trends in the
development and interpretation of international humanitarian and criminal
procedure law.
These circumstances determined the choice of the research topic
covering a number of issues, the study of which has both theoretical and
practical signicance.
3. Findings of the research
3.1. Legal nature of war crimes and the problem of their
criminalization at the national level
By their nature, war crimes are one of the most severe and serious
oences known to humanity. Under international law, the state in the
territory of which war crimes are committed, must take the most active part
in the investigation and prosecution of people charged with the criminal
oence (Nazarchuk, 2020). At present, Ukraine, however, is not always
able to respond adequately to hostilities on the temporarily occupied and
adjacent territories.
For example, the Criminal Code of Ukraine, except Art. 438, has no
detailed rules determining illegality of particular actions in an armed
conict. There is also neither explanation of war crimes, which are of
minor, medium, and severe gravity, nor the extent of responsibility for
their commission. This problem requires a comprehensive solution. Some
lawyers rightly consider adoption of the law on transitional justice to be the
way out of this situation (Bida, 2021).
Any of the following acts is considered a war crime according to the
international community:
1. Intentionally directed attacks against the civilian population in a
combat zone.
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International guidelines for managing investigation and collection of evidence of war crimes
2. Committing acts or threats of violence to spread terror among the
civilian population.
3. Deliberate launch of an indiscriminate attack aecting the civilian
population or civilian objects in the knowledge that such attack will
cause loss of life, injury to civilians or damage to civilian objects.
4. Indiscriminate attacks aecting non-defended localities or
demilitarized zones.
5. Intentional attack of a person who is recognized to be hors de
combat.
6. Deliberate attacks against medical personnel, equipment, and
facilities.
7. Intentional launch of an attack in the knowledge that such attack
will cause widespread, long-term, and severe damage to the natural
environment.
8. Use of weapons, projectiles and materials causing superuous
injury or unnecessary suering.
9. The use of poison or poisoned weapons or asphyxiating, poisonous
or other gases and all analogous liquids, materials, or devices.
10. The use of chemical or biological weapons.
11. The use of explosive bullets or weapons, the primary eect of which
is to injure.
12. The use of booby-traps or mines (which can aect both combatants
and civilians) in places with a high probability of civilians (Koval
and Avramenko, 2019).
However, objectivity in determining grounds for application
(criminalization) or refusal to apply (decriminalization) criminal law
inuence should be recognized as an ongoing problem of criminal law. It
should be emphasized that, unfortunately, persons guilty of committing
most war crimes nowadays manage to avoid criminal prosecution, one
of the reasons being inadequate legislation and its inconsistency with
international norms. Current Art. 438 of the Criminal Code of Ukraine
(“Violation of rules of the warfare”) is quite generalized, therefore national
legislation should specify elements of war crimes, dening all serious
violations of international humanitarian law as war crimes. Thus, there is
an obvious need to specify elements of war crimes in national legislation
(Nazarchuk, 2020).
When applying Art. 438 of the Criminal Code of Ukraine, it is necessary
to focus on the practice of international criminal courts, doctrines,
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authoritative statements of international humanitarian law and provisions
of international treaties. Besides, the list of acts that can be considered
violations of rules of the warfare does not need to strictly coincide
with the correspondent list in Art. 8 of the Rome Statute, or the list of
serious violations of international humanitarian law under the Geneva
Conventions, or Additional Protocol 1 thereto. The list can be expanded, but
not arbitrarily, to nd support in international practice. Otherwise, Ukraine
will almost surely face legal proceedings in the European Court of Human
Rights initiated against it.
At present, it is necessary to state the inadequacy of particular norms of
the Criminal Code of Ukraine. There is an urgent need to review the articles
of Chapters XIX-XX of the Code in order to include the norms establishing
criminal liability for all the actions against the interests of the people of
Ukraine.
It seems reasonable to focus on the list of actions, which can be
qualied as violations of the laws of the warfare, proposed in the bill “On
Amendments to Certain Legislative Acts of Ukraine as to Conforming
Criminal Legislation to the Provisions of International Legislation”
No. 9438. This list meets international standards and responsibilities
assumed by Ukraine under international treaties to criminalize violations
of international humanitarian law.
3.2. Conceptual bases for managing investigation of war crimes
Fighting crime in a military conict is impossible without proper
management of pre-trial investigation and solution of criminal oences,
which predetermines the entire further process of criminal proceedings.
For example, R.S. Belkin identied four stages of criminal investigation.
The rst is the highest and the most general stage treating investigation as
a specic form of activity of pre-trial investigation bodies and inquiry of all
the agencies. This stage is dened as a set of measures ensuring eective
operation of system elements and fulllment of the assigned tasks.
The second, “managerial”, stage of investigation covers specic content
and represents the primary function of investigative bodies. This stage is
dened as a set of measures ensuring optimal structure of these bodies,
the required level of management, eciency of their performance and
improvement of their operating methods.
The third stage of investigation management is the stage of applying
forensic methods, i.e. management of a particular act of investigation
(investigation of a particular criminal oence). This stage is dened as a
set of measures aimed to create optimal conditions for determining and
applying recommendations, which are the most eective and appropriate
for a particular investigation to achieve the highest possible results with a
minimum expenditure of time, eorts and resources.
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International guidelines for managing investigation and collection of evidence of war crimes
The fourth stage of investigation management is called tactical and
covers management of a separate investigative action or managerial and
technical measures within a specic act of investigation. This stage is
dened as a set of measures ensuring selection and implementation in a
particular situation of the most eective and appropriate criminological
and tactical methods and techniques to achieve the objectives of a specic
investigative action.
Managing investigation of a particular criminal oence is an integral
part of forensic methodology. It includes traditional measures taken within
a separate criminal proceeding and aimed to create optimal conditions for
determining and implementing recommendations of forensic methodology,
which are the most eective in a particular investigative action, in order to
achieve the highest possible results with a minimum expenditure of time,
eorts and resources. However, when investigating war crimes committed
by the parties to an armed conict, other organizational measures going
beyond particular criminal proceedings must be taken.
Management of war crimes investigation, like any activity, entails
internal subordination, coherence, and cooperation. The main objective of
this process is its eectiveness (Skuba, 2017). In addition to the single goal,
which is the main in the management of interaction, it is necessary to take
into account such criteria as specicities of cooperation of investigative,
operational and other units with each other; timeframes for performing
joint activities; functions of interacting units; connection with the system of
bodies carrying out operational search activities; degree of condentiality;
stages of implementing joint investigative and operational search measures;
subjects of interaction; forms of mutual information exchange (Yukhno,
2012).
Given the specics of committing criminal oences in an armed conict,
interaction is one of the crucial factors in successful investigation of this
type of socially dangerous actions. Their detection and investigation
involves improving legal regulations, as well as organizational and tactical
component of interaction between the investigator and other subjects of
investigation (Blahuta et al., 2014). In this case, viability and eectiveness
of interaction are determined by investigative situations developing at a
particular stage of investigation in criminal proceedings, and therefore,
aimed at identifying the facts in issue.
Bilateral and multilateral international treaties play a signicant role
in regulating management and interaction of law enforcement and judicial
bodies during investigation of criminal oences at the interstate level. These
treaties include the European Convention on Mutual Assistance in Criminal
Matters (1959); the European Convention on the Transfer of Proceedings
in Criminal Matters (1972); the Convention on Legal Assistance and Legal
Relations on Civil, Family and Criminal Cases of January 22, 1993, etc
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(Smyrnov, 2003; Law of Ukraine, 1998; Law of Ukraine, 1995; Law of
Ukraine, 1994).
Adoption of the new Criminal Procedure Code of Ukraine regulated a
number of issues of international cooperation in criminal proceedings
and dened its main forms: international legal assistance in the conduct
of procedural actions (Chapter 43 of the CPC); surrender of persons who
have committed a criminal oense (extradition) (Chapter 44 of the CPC);
takeover of criminal proceedings (Chapter 45 of the CPC) (Law of Ukraine,
2012).
3.3. Appropriate legal procedure for war crimes investigation in
accordance with customary international law and the practice
of its application in an armed conict
The analysis of work of the International Criminal Court (hereinafter –
ICC) enables to identify conceptual organizational measures going beyond
particular criminal proceedings, non-acceptance of which has a destructive
direct eect on war crimes investigation. These measures include: a)
dening the strategy and management of investigation; collecting evidence;
b) determining the structure of investigative bodies and principles of their
work organization; c) dening the procedure for creating an interagency
investigative operations group (hereinafter – IIOG), material and combat
service support for their activities; d) ensuring the right to qualied legal
protection and the procedure for involving other participants of criminal
proceedings (translators, specialists, witnesses); e) determining the
principles of information and analytical work, management of controlling,
accounting, reporting; f) managing interaction and cooperation between
states, international and national bodies of criminal justice in the process
of investigation and collection of evidentiary information; g) dening
measures to raise skill level of personnel; h) using expert knowledge in
eld conditions; i) managing forensic examinations and activities of expert
institutions, etc.
Concerning the strategy of managing investigation and collecting
evidence of war crimes, it should be noted that representatives of military
and political leadership of states do not directly participate in war crimes,
give orders to commit them, sign relevant documents etc. Therefore, in our
opinion, when managing collection of evidence of war crimes committed by
representatives of military and political leadership of states, the main eorts
should be focused on collecting sucient evidence to justify accusation of
persons most responsible for committing the criminal oences and holding
the highest political and military positions.
It stands to reason that in order to prove their guilt, it is necessary to
establish connection of public policy makers with a set of criminal oences
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International guidelines for managing investigation and collection of evidence of war crimes
committed in dierent areas of an armed conict, to prove that they
developed and implemented a strategic criminal plan or it was performed
under their direct leadership, i.e. to adopt the doctrine of “common
purpose”, when several criminals act together to achieve a goal.
At the national level, members of the operational investigations group
directly interact with each other, agree on the main directions of pre-
trial investigation and procedural actions, and exchange the obtained
information. The Prosecutor General’s Oce of Ukraine acting as the
initiator of creating a joint investigations group carries out coordination
of their activities in the territory of Ukraine. In addition to representatives
of the law enforcement agencies from the EU member states involved in
the joint investigation teams, there is a possibility to involve ocials of
Europol and Eurojust within the EU (European Convention, 2011; Shostko
and Ovcharenko, 2008).
Being timebound and having neither opportunity nor resources
to manage simultaneous investigation of a large number of criminal
proceedings on war crimes committed in dierent areas of an armed
conict, each IIOG should be assigned the task of rapid and high-quality
investigative (search) actions and collecting maximum physical evidence.
At the same time, IIOG prosecutors should coordinate investigation of
various criminal proceedings, ensure eective exchange of information,
and report promptly and competently its suspicions to the main organizers
of war crimes.
In case the obtained evidence proves the guilt of high-ranking war
criminals, criminal proceedings should be immediately initiated against
them. Otherwise, investigators will focus on searching and prosecuting
low-ranking war criminals. Thus, collecting testimony from separate war
criminals with a detailed description of place and nature of the criminal
oence, they will omit the facts proving involvement of political and military
leaders of the opposing side of an armed conict.
The process of managing investigation of war crimes and collecting
evidence may involve various forms of interaction between law enforcement
agencies. For instance, when investigating war crimes, it may be dicult to
collect evidence outside the territory of a particular state, i.e. in the territory
of the other party, with respect for the rights of the participants in criminal
proceedings.
The fact that many states have not ratied or signed the Rome Statute
of the ICC so far is a serious obstacle to the prosecution of war criminals. In
this regard, it is necessary to take eective measures against the states that
do not want to cooperate with bodies investigating war crimes. Therefore,
we propose to establish arrangements for proceedings in this category of
cases based on the principle of universal jurisdiction.
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Customary international law requires states to exercise their jurisdiction
and gives them the right to exercise universal jurisdiction over war
crimes that do not belong to grave breaches. Universal jurisdiction allows
investigating war crimes without regard to where they were committed
and the nationality of the perpetrator. Universal jurisdiction distinguishes
between the criminal oences that states are obliged to stop on the basis of
universal jurisdiction (mandatory universal jurisdiction) and the criminal
oences that states have the right to stop (optional universal jurisdiction).
Universal jurisdiction may be provided for by the norms of international
customary or treaty laws. If universal jurisdiction is established by treaty, it
is usually mandatory. Universal jurisdiction can be exercised either through
adoption of internal legislative acts (legislative universal jurisdiction), or
through investigation of persons suspected of committing oenses and
their transfer to the court (law-enforcement universal jurisdiction). The
grounds for exercise of universal jurisdiction over war crimes are present in
both international treaty and customary laws.
In some cases, the parties to the conict make it clear that they refuse to
cooperate and will obstruct the investigation in any way. This results in an
active opposition to managing investigation and collecting evidence of war
crimes committed by the warring parties of an armed conict.
This is expressed through concealing traces of war crimes, namely
through destruction of relevant documentation, rejection to issue it to
investigative groups with the consent or acquiescence of member-state’s
leadership of an armed conict, etc. For example, former ICTY Prosecutor
Carla del Ponte tells about opposition of the ICTY by the Central Intelligence
Agency, the United Nations and NATO. Such behavior of the authorities is
understandable and can be explained by the fact that it can damage further
payment of reparations.
For instance, heads of states do not want investigative bodies to obtain
important archival and documentary testimonies (such as meeting schedules,
agenda records, protocols, deciphering’s, verbatim records of meetings and
conferences, ocial orders, reports, purchase orders, inventory, payment
information, other correspondence) that reveal internal mechanisms of war
crimes in their countries, as well as involvement of political, military, and
reconnaissance groups and police in secret war crimes.
If this is the case state leaders restrict access of investigative bodies
to a number of archives, which contain the abovementioned and other
documents proving the involvement of politicians, military bodies and
police in war crimes, and provide unrestricted access to minor archives,
destroy requested documents under a local ordinance requiring automatic
destruction of documents after a certain period of storage, or impose other
obstacles.
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If heads of states do not assist investigative bodies in collecting and
analyzing physical evidence, mass grave sites, identifying and interrogating
crucial witnesses, including high-ranking ocials, or persons hiding and
remaining under their jurisdiction, they may use threats, blackmail or
other ways to obstruct identication of witnesses willing to testify; restrict
access to witnesses (for example, by threatening that, under local laws, any
communication or even conversation with investigators involves the risk of
criminal prosecution for allegedly disclosing “state” or “military secrets”);
allow witnesses to testify only in case investigators issue a summons to the
authorities of their country; forbid investigators to work in the territory
under their jurisdiction; refuse to cooperate with the ICC. And in such case,
the ICC cannot force the state to cooperate.
To eectively eliminate or minimize consequences of these destructive
factors it is necessary to establish a special governmental institution for
cooperation with the ICC, appoint national coordinators, make amendments
in the Criminal Procedure Code of Ukraine, ensure the possibility to establish
an institution of joint IIOGs, i.e. on the basis of relevant international
treaties, providing for management of collecting evidentiary information
on war crimes, to form joint groups of ICC members and national criminal
justice authorities, balancing between the systems of continental and Anglo-
Saxon laws, which will denitely contribute to impartiality of investigation.
It is necessary to share views on a regular basis with the representatives of
the international community, placing priority over political considerations
and short-term interests of states, to ensure political assistance from the
international community in nding and managing collection of evidence on
war crimes and arresting war criminals, for example, employing sanctions
and creating direct dependence of economic assistance on cooperation with
the ICC; to ensure wide involvement of representatives of international
organizations (OSCE, Human Rights Watch, Doctors Without Borders,
etc.) and various media in investigative actions, since the activities of
international criminal justice provide for privileged evidence, for example,
data are handed over by the International Committee of the Red Cross.
Management and methods of investigation, collection of evidence of war
crimes committed by the parties to an armed conict are directly aected
by the following destructive factors:
1. rapid change in the operational situation.
2. frequent redeployment of military units and subdivisions.
3. death, injury and captivity of witnesses, victims, suspects during the
ghting.
4. change of scenery as a result of bombing, artillery or mortar re,
capture by the enemy.
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5. mineelds, sniper attacks, etc.
6. a large number of cases investigated within a limited time period.
7. bringing to criminal responsibility the parties to an armed conict.
8. a signicant time gap between the moment of committing mass
murders and starting of examining mass grave sites, which prevents
identication due to decomposition of bodies.
9. problems with assembling evidence base, since shootings were
performed in the places excluding any unwanted witnesses.
10. selective providing of criminal justice bodies with various military
information, such as documents, objects, drone pictures, decoded
recordings of radio interceptions, etc. concerning events that could
become or have already been the subject of investigation.
11. politicization of investigation process and conducting investigation
on the border line between national sovereignty and international
responsibility, in the area between legal and political spheres.
12. the way local population perceives investigation of war crimes
at the national level and administration of justice for war crimes
against persons of the opposite party within the state may lead to
public dissatisfaction and hostility towards criminal justice bodies,
which will diminish the importance of the ICC and national criminal
justice bodies.
13. illegal comparisons with the actions of the other party and the use
of “spilled blood” factor to evade criminal liability for war crimes,
such as “the right to commit illegal acts against the enemy” for
unfounded accusations of “cowardice” of investigative bodies not
directly involved in hostilities.
14. investigation of war crimes only in respect of one of the parties to
the conict, etc.
15. the need to ensure an impartial and neutral investigation so that
neither party bears “special” responsibility.
16. unwillingness of the parties to an armed conict to obey lawful
requirements of the judiciary and international legal provisions.
17. problems of ensuring testimony of high-ranking foreigners.
18. attempts to stage a fake war crime “committed” by the enemy.
19. obstruction of investigation.
20. the possibility of armed resistance of the suspect or his comrades
during detention.
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21. combat fatigue of the accused, suspects, victims, witnesses, etc.
22. slow investigation of this category of criminal oences, which may
exceed all reasonable deadlines, and dragged-out detentions.
Specic methodology of investigating war crimes committed in
an armed conict consists mainly in the collective (team) method of
investigation, “hot pursuit” investigation and special arrangements for
investigative (search) actions in an armed conict. This applies both to
traditional investigative (search) actions (interrogation, search, inspection
of a crime scene, etc.) and new techniques for criminology, which have
found extensive practical application only in locations of an armed conict
(for example, interrogation of war prisoners, examining mass grave sites,
analysis of radio transmissions, etc.).
The main evidence in the activities of international criminal justice
bodies is the testimony of witnesses, victims, suspects, accused, as well as
documents with a widespread practice of their preliminary recording with
technical means obtained during interrogations, inspections, searches, and
expert examinations.
It is necessary to develop new criminological research techniques,
widely applied only in localities of an armed conict (analysis of intelligence
information, bringing into the proceedings a large number of photo, audio
and video materials proving commission of war crimes, etc.). Investigative
(search) actions should be aimed at identifying particular commissioned
ocers (pilots, artillerymen, snipers, etc.) who gave and carried out orders
on air strikes, shelling and destruction of civilians and settlements, and
on other war crimes. Then, on the basis of legislation regulating activity of
ocials of the state involved in the conict, it is necessary to dene those
who are guilty.
To improve eciency and quality of investigative actions it is necessary
to innovate the procedure for performing investigative (search) actions
through adapting them to the conditions of an armed conict, using the
latest technologies to capture evidence, broadening and enhancing expert
database, improving forms and methods of cooperation with other law
enforcement agencies, improving quality and reliability of communications
and transport means, etc.
Detection, detention and surrender to court of the ocials involved in
committing war crimes are extremely complex processes, which are mainly
related to contradictory provisions of the Rome Statute of the ICC stating
fundamental constitutional and legal prohibitions: 1) to surrender persons
to court (Art. 89); 2) to take into account ocial capacity (Art. 27), which
presupposes application of the Statute to a head of state or government,
a member of a government or parliament; 3) to exclude from «ne bis in
idem» principle (no person shall be tried by the court for a crime for which
that person has already been convicted or acquitted by the court).
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Reluctance of the parties to an armed conict to prosecute their citizens,
which are war criminals, often treated as “heroes” by the population, as
well as lack of a binding eective legal mechanism of search, detention
and surrender of war criminals is one of destructive factors of war crime
investigation.
In contrast to the norms of national constitutions and criminal laws,
prohibiting extradition of citizens, the Rome Statute of the ICC in Art.
89, requesting States Parties to surrender persons to the ICC, makes no
exceptions to the transfer of citizens of those countries to which such a
request is submitted. According to Art. 89 (1), the Court may transmit a
request for the arrest and surrender of a person, together with the material
supporting the request outlined in article 91, to any State in the territory of
which that person may be found and shall request the cooperation of that
State in the arrest and surrender of such a person. States Parties shall, in
accordance with the Statute and the procedure under their national law,
comply with requests for arrest and surrender (Verkhovna Rada of Ukraine,
1998).
Given the possibility of conict of national law and provisions of the
Statute, Art. 102 dierentiates the terms “extradition” and “surrender”
(referring to surrender, not extradition, as a special institution of
international law, regulating cooperation of states in the ght against
crime). According to this Article, “surrender” means the delivering up of a
person by a State to the Court, pursuant to the Statute, whereas “extradition”
means the delivering up of a person by one State to another as provided by
treaty, convention, or national legislation.
At the same time, the practice of international law conrms the
fundamental dierence between the legal natures and contents of
“extradition” and “surrender”, creating eective preconditions to avoid
amendments to the constitution in case it provides for an absolute
prohibition on extradition:
1) the national constitution does not contradict the Statute, therefore
there is no need to amend constitution (Republic of Armenia);
2) the national constitution contradicts the Statute, but the
contradictions are insignicant, and amendments to the constitution
are of general nature recognizing jurisdiction of the ICC, and allowing
the ICC to sit within the State’s territory (surrender of citizens to the
ICC is performed without their extradition). In addition, Art. 88 of
the Protocol I Additional (1977) provides for the obligation of States
Parties to aord one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of grave
breaches of the Geneva Conventions (1949) and the Additional
Protocol I (1977), in particular, in the matter of extradition.
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Extradition and mutual assistance in matters of criminal proceedings
are provided in Art. 18 and 19 of Protocol II Additional to the Geneva
Conventions for the protection of cultural Property in the event of an
armed conict (1954). The need for mutual assistance is particularly
evident when states have to prosecute or extradite persons suspected
(accused) of committing criminal oences.
Conclusions
To summarize the ndings presented above, we can conclude that the
concept of investigating war crimes committed in an armed conict and
criminal proceedings of perpetrators is of great scientic and practical
signicance. It is a comprehensive interdisciplinary integral theoretical
system for working in special conditions, which combines doctrines
of specic regularities in the sphere of legal support, management of
investigation and collection of war crime evidence, search, detention and
surrender of ocials involved in war crimes, international prosecution of
perpetrators.
This concept makes it possible to combine scientic provisions on the
activities of criminal justice bodies in an armed conict into a single system,
which, in its turn, contributes to identication of open issues and systematic
solution of relevant problems. It is highly important for investigative and
judicial practice, since it equips criminal justice authorities with scientically
grounded recommendations on managing investigation of war crimes, and
with the methods of carrying out such investigations.
When applying provisions of the Criminal and Criminal Procedure Codes
of Ukraine, it is necessary to focus on the practice of international criminal
courts, doctrines, authoritative statements of international humanitarian
law and provisions of international treaties. Besides, the list of acts that
can be considered violations of rules of the warfare does not need to strictly
coincide with the correspondent list in Art. 8 of the Rome Statute or the list
of serious violations of international humanitarian law under the Geneva
Conventions, or Additional Protocol 1 thereto. The list can be expanded, but
not arbitrarily, in accordance with the international practice.
The highest form of cooperation between the competent authorities when
investigating war crimes, having often transnational nature, is creation
and operation of interagency investigative operations groups, the number
and personal composition of which are determined by the complexity of a
crime, the number of incidents of criminal activity, location of committed
criminal oenses, the number of persons involved in the crime, the need
to identify and search these persons, the amount of evidence and guidance
information, etc.
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To eectively eliminate or minimize consequences of factors destructing
war crime investigation process it is necessary to establish a special
governmental institution for cooperation with the ICC, appoint national
coordinators, make amendments in the Criminal Procedure Code of
Ukraine, ensure the possibility to establish an institution of joint IIOGs, i.e.
on the basis of relevant international treaties, providing for management
of collecting evidentiary information on war crimes, to form joint groups of
ICC members and national criminal justice authorities, which will denitely
contribute to impartiality of investigation.
Customary international law requires states to exercise their jurisdiction
and gives them the right to exercise universal jurisdiction over war crimes
that do not belong to grave breaches. Universal jurisdiction can be exercised
either through adoption of internal legislative acts (legislative universal
jurisdiction), or through investigation of persons suspected of committing
oenses and their transfer to the court (law-enforcement universal
jurisdiction). The grounds for exercise of universal jurisdiction over war
crimes are present in both international treaty and customary laws.
Bibliographic References
BIBIK, Iryna; KULYK, Liudmyla. 2014. “Comparative legal analysis of crimes
against peace, security of mankind and international law and order in the
criminal legislation of Ukraine and the USA” In: The South Ukrainian
Law Journal. No. 09, pp. 66-68.
BIDA, Oleksiy. 2021. Documenting war crimes – a natural process of restoring
justice. Available online. In: https://helsinki.org.ua/articles/oleksiy-
bida-dokumentuvannia-voiennykh-zlochyniv-pryrodniy-protses-
vidnovlennia-spravedlyvosti/. Date of consultation: 21/08/2021.
BLAHUTA, Roman; KLYMCHUK, Mykhailo; SAKAL, Vitaliy; TSUTSKIRIDZE,
Maksym. 2014. Interaction of investigative and operational units during
the pre-trial investigation. In textbook. Manual Lviv. Lviv, Ukraine.
EUROPEAN CONVENTION. 2011. Second Additional Protocol to the European
Convention on Mutual Legal Assistance in Criminal Matters, 1959:
signed on 8 November 2001; ratied by statements and reservations by
Law №3449-VI of June 1, 2011. In Ocial Gazette of Ukraine. № 85. p.
3500.
KOVAL, Dmytro; AVRAMENKO, Roman. 2019. War crimes. Features of the
investigation of international crimes committed in the context of the
armed conict in Donbass. Truth Hounds. Kyiv, Ukraine.
688
Nataliia Kononenko, Valeriy Patskan, Maryna Hromova, Halyna Utkina y Serebro Mykhailo
International guidelines for managing investigation and collection of evidence of war crimes
LAW OF UKRAINE. 1993. On the Fundamentals of National Security of
Ukraine: Law of Ukraine of June 19, 1993 № 964-1. Available online.
In: http://zakon2.rada.gov.ua/laws/show/964-15. Date of consultation:
21/08/2021.
LAW OF UKRAINE. 1994. 16. On ratication of the Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters:
Law of Ukraine of 10 November 1994 №240 / 94-VR. Available online.
In: http://zakon.rada.gov.ua/laws/main/a199405/page3. Date of
consultation: 21/08/2021.
LAW OF UKRAINE. 1995. On Ukraine’s accession to the European Convention
on the Transfer of Proceedings in Criminal Matters: Law of Ukraine of 22
September 1995 №339 / 95-ВР. Available online. In: http://zakon.rada.
gov.ua/laws/show/339/95-вр. Date of consultation: 21/08/2021.
LAW OF UKRAINE. 1998. On the ratication of the European Convention on
Mutual Assistance in Criminal Matters, 1959, and the Additional Protocol
of 1978 to the Convention: Law of Ukraine of 16 January 1998 №44 / 98-
VR. Available online. In: http://zakon.rada.gov.ua/go/44/98-вр. Date
of consultation: 21/08/2021.
LAW OF UKRAINE. 2012. Criminal Procedure Code of Ukraine: Law of
Ukraine of April 13, 2012 № 4651-VI. Available online. In: http://
zakon3.radaкорс.gov.ua/laws/show/4651-17/print1458049476321499.
Date of consultation: 21/08/2021.
NAZARCHUK, Iryna. 2020. War crimes in Donbass. What are the diculties
of investigating and bringing the perpetrators to justice? Available
online. In: https://www.radiosvoboda.org/a/war-crime-donbas-
problems/30733783.html. Date of consultation: 21/08/2021.
SHOSTKO, Olena; OVCHARENKO, Olena. 2008. “Prospects for cooperation
between Ukraine and European institutions in the eld of combating
organized crime” In: The issues of ght against crime. No. 4, pp. 110-122.
SKUBA, Halyna. 2017. Forensic support of pre-trial investigation of terrorist
acts. In: AutoAbstract of dissertation of candidate of legal sciences:
12.00.09. Kyiv, Ukraine.
SMYRNOV, Maksym. 2003. “The concept and current state of the institute of
mutual legal assistance in criminal matters” In: Law of Ukraine. No.10,
pp. 40-43.
THE WAR IN THE DONBASS. 2019. Realities and prospects for settlement.
Available online. In: https://razumkov.org.ua/uploads/article/2019_
Donbas.pdf. Date of consultation: 21/08/2021.
689
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 670-389
VERKHOVNA RADA OF UKRAINE. 1998. Rome Statute of the International
Criminal Court: Charter of the United Nations of July 17, 1998. Available
online. In: http://zakon3.rada.gov.ua/laws/show/995_588. Date of
consultation: 21/08/2021.
YUKHNO, Oleksandr. 2012. “Some aspects of the interaction of investigators
and other units of law enforcement agencies during the investigation of
crimes” In: Customs case. Vol. 80, No. 2, pp. 164-168.
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Esta revista fue editada en formato digital y publicada
en enero de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 72
