Working according to a standard or reinventing the wheel every time

Strengthening the capacity of the national war crimes investigation system is one of common strategic priorities of many actors. What can be done to ensure that investigators and prosecutors adhere to appropriate standards in an environment where the number of international crimes is constantly increasing and the time resource for training and development is very limited?

One of the responses we have found is to analyze investigative experience and standardize the investigative process where possible and to the extent possible in our context.

For example, in the first proceedings after a full-scale invasion, the contextual element of proof and the level of its justification were interpreted very differently. Through the analysis of practice and experience, discussions with national and foreign experts, an optimal solution was found that can be applied in the criminal justice system. It enables investigators and prosecutors to use the same lenses during the investigation. To use an adapted and standardized format rather than reinvent the wheel every now and then.

This is just one of the examples. For us, it’s about resource efficiency and synchronizing the regions and the national level in using best practices in documentation and investigation.

Standardization of processes is currently a new approach for the national criminal justice system. The investigation of war crimes is a good space where it can be integrated. In order for it to be effective, there are several important ingredients:

• standards should be based on analysis of experience and lessons learned;
• standards can be a good product when different perspectives are involved. They cannot be formed from outside the system, and the most difficult element is the integration of different experiences, understanding and publishing a product that can be built based on the synergy of these expertises;
• standards are subject to a review. Critical review is an essential component of product quality. Critical review can be both foreign and domestic;
• standards are the product of discussion, rather than the product of an expert or a group of experts.

Following the experience of the Pretrial Investigation Standards, the JustGroup team initiated the development of the War Crimes Investigation Standards and coordinated the development of the War Crimes Investigation Standards , incorporating the ingredients listed above.

War Crimes Investigation Standards are a joint product of a specialized Department of the PGO, leading national experts in international humanitarian law. At each stage of the development of the Standards, they were verified by prosecutors who investigate international crimes on a daily basis, taking into account various experiences that are already available. At the final stage, judges joined the review.

During this time, it was possible to develop an outline and approach, and most importantly, to involve various stakeholders in the process to ensure a critical review.

A team of experts and practitioners worked out the “Standards for the investigation of war crimes. The general part” and the first set of standards that relate to a specific type of crime – “Illegal deprivation of liberty and torture”. These Standards have passed rounds of discussions within the PGO and are now approved by the Technical Council at the PGO. We also work together in this multidisciplinary team on the crimes of “Deportation” and “Attacks on civilian objects.”

The team members. who work on the Standards, shared more details on the Standards, their importance for synchronizing the understanding between investigators and prosecutors, the impact on the effectiveness of the investigation, as well as about pooling of efforts, resources and experience of the PGO, non-state actors and experts in international humanitarian law around the development of such a tool.

How can standardization in the investigation of war crimes affect the efficiency and quality of the investigation? Why is this important? 

“First, standardization is critically important in conditions when the system is facing a new type of crime, especially with a large number of them. When we need to investigate a crime without having a guide on how to act, we actually waste time and make mistakes. The standard gives us a horizon of work and helps us perform our tasks more efficiently. On the other hand, it allows for unification of national practice, when everyone works according to a single standard. Otherwise, each investigator, each prosecutor, who are facing the same crimes, go their own way, and this creates a very inconsistent practice, which, as a result, causes obstacles to the investigation. Uniformity of national practice, including judicial practice, is essential and can only be achieved through standardization.

Secondly, it saves the resources of investigative bodies. You don’t have to reinvent the wheel for every investigation, but take a standard, a clear algorithm, and follow it.

Third, the Standards are what enable us to unify the investigation system from within. When investigators, prosecutors, and even, preferably, investigative judges use uniform standards, it improves their interaction and has a positive effect on the entire investigation system,” said Yurii Bielousov, Head of the Department for Combating Crimes Committed in Conditions of Armed Conflict of the PGO.

Vasylyna Yavorska, member of the JustGroup team, coordinator of the Standards drafting team, tells about joint efforts of various organizations and the specialized PGO Department, partnership and energy of ideas: “Everyone understands well that investigative bodies and the prosecutor’s office need a tool that will help us get on the same page in the understanding of what we are investigating, what we are proving, how to do it in the best way and what mistakes shall we avoid.

In the Ukrainian system, there is a lack of time for in-depth training and development of investigators and prosecutors, so such a tool as common Standards can help a lot. In my opinion, it is a good practice that should be integrated holistically into the criminal justice system, to analyze our experiences, draw lessons and decide how we proceed. This is exactly what the Standards are for. Therefore, it is good that the Prosecutor General’s Office prioritizes this work and prosecutors actively invest in the development of this tool.

Given the amount of expertise currently available to investigative bodies and prosecutors, it’s also about the ability to join forces with prosecutors and investigators and work out the best scenarios together.

For me personally, the greatest value of this work is about creating the experience of joint work of various actors, who are actually united by one goal – increasing the capacity of the national system to properly document and investigate international crimes in Ukraine. It’s great that there are such partners and they are ready to cooperate.”

Yevhen Krapyvin, lawyer, JustGroup expert, shares his thoughts on the specificity and uniqueness of the Standards: “Any legal regulation has an open structure, so it requires efforts to interpret it during law enforcement. We are talking not only about judges, but also about investigators/detectives and prosecutors who decide who should be prosecuted, within what qualifications, according to what evidence of involvement, etc.

Algorithms, references, case law, etc. are often used to fill these interpretive boundaries of legal regulation. At the same time, judicial practice is often not enough, and the diversity of approaches in the absence of a centralized law enforcement policy gives rise to various ‘local practices’ that can negatively affect the quality of pre-trial investigation and trial of criminal proceedings.

It is for this that there should be a standard rather than a step-by-step algorithm or just a commentary on case law or legislation. There should be a unique guide to the enforcement of legal matter in criminal proceedings.”

How do the Standards help in the work and facilitate interaction between prosecutors and investigators? Why is it important to have a single point of reference? 

Stanislav Petrenko, head of the organizational, technical and analytical department of the Department of Combating Crimes Committed in Conditions of Armed Conflict of the PGO notes: “Synchronization of knowledge, experience and efforts of prosecutors and investigators is especially important in the investigation of war crimes. Their significant number and large scale require involvement of significant resources, which are always lacking in the law enforcement system.

Also, international humanitarian law is extremely broad, so it is necessary to provide law enforcement agencies with special knowledge in the most accessible and up-to-date form.

The Standards are designed to create a basis for the correct classification of crimes, the definition of the subject of proof and the main directions of evidence collection, which allows the prosecutor’s office and the investigation to move together, keeping proper focus.”

There is a huge array of documents and literature related to international humanitarian and international criminal law. How can investigators and prosecutors master it? Can Standards help with this? Why are simple step-by-step instructions not enough?

“The standards are a simple practical guide on the fundamental features of the pre-trial investigation of criminal proceedings on violations of the laws and customs of war under Art. 438 of the Criminal Code of Ukraine (war crimes):

• the criminal-legal qualification of these crimes, suspicions and charge are based on international humanitarian law;
• contextuality of war crimes;
• innovative nature of pretrial investigation, in particular tools for obtaining evidence in the procedural situation of the crime scene, eyewitnesses and victims, and perpetrators not being accessible,
• importance of the mission of effective pre-trial investigation of criminal proceedings on war crimes, caused by ensuring the inevitability of the punishment of war criminals, compensation for the damage caused by these crimes, the implementation of pre-trial investigation of other international crimes (crimes of aggression, genocide).

Generalized characteristics of certain types of war crimes, systematized circumstances to be proven in such criminal proceedings, fragments of standard legal positions or other wording for use in procedural acts are aimed at making the activities of investigators and prosecutors more effective, as well as unifying law enforcement practice.

The standards, as a live document, will develop further,” says Mykola Pashkovskyi, a researcher at V.Shashys Scientific Research Institute for the Study of Crime of the National Academy of Legal Sciences of Ukraine, PhD, associate professor.

Dmytro Koval, lecturer at the National University Kyiv-Mohyla Academy, legal director of the Truth Hounds NGO, PhD, points out that an important element of the Standards is international experience: “Ukraine is far from the first country that faces war crimes, the need to investigate and prosecute them in court. Accordingly, Ukraine should not reinvent the wheel in how to respond to such a challenge, how to build war crimes cases in courts. We should make the most of the experience that has already been gained at the level of international courts and at the level of national jurisdictions in order to better explain, understand, analyze, break down the crimes that we are currently investigating or preparing for trial.

And it is in this sense that the Standards take into account the need to pay attention to international experience. That is, when there is some judicial practice (international or national) and it suggests that certain elements should be investigated when it comes to a specific war crime, the Standards respond to this with a proposal, a hint for prosecutors – for example, to take this element into account, investigate it and describe it in a certain way.” We, the JustGroup team, have made and will continue to make efforts to unify different actors around making common tools for investigation international crimes to give justice a chance. We thank you partners who are involved in this process: the Prosecutor-General’s Office, Truth Hounds NGO, Council of Europe Office in Ukraine, EU Project Pravo-Justice, International Renaissance Foundation. We only hope that this interaction will be further strengthened.