Two years since the beginning of Russia’s open aggression in Ukraine on 24 February 2022, Today, the Ukrainian Law Centre of the Faculty of Law of Vilnius University hosted a panel discussion “Building the Path to Justice in Ukraine – Overcoming the Challenges of Evidence Gathering in a Time of War”, where scholars and practitioners from Ukraine, the United Kingdom and Lithuania shared their insights and experiences on the work that has been done and the challenges that lie ahead in the pursuit of justice in Ukraine, and to contribute to the continuity of the legal effort on this path, to the survival of the memory of the victims of Russia’s transnational crimes, and to the continued support for Ukraine.
The event was opened by Associate Professor Dr. Indrė Isokaitė-Valužė. She stressed the importance of the success of peace and justice in the face of the need for historical truth: Russia has lied always and everywhere – from the podiums of the United Nations institutions, in the hearings of the International Court of Justice, to its citizens, it has redrawn maps, changed curricula, silenced its opponents, and seeks to change the order of the world and to pervert international law. Ms Isokaitė-Valužė reviewed the milestones of the most important gains and losses in the two-year war, who became symbols and heroes of Ukraine’s struggle for freedom, underlining the cost of human life and the critical need for full support for Ukraine and its soldiers. From terrorism, self-defense, and state responsibility to the need to reform the United Nations, the war has seen many firsts in the development of international law. “Everyone probably has their own relationship to war, some still think it’s not about them. It is important that as many people and states as possible realize that solidarity and joint efforts can make the difference that is critical to the real implementation of responsibility in international law”, she said.
Russia’s hostilities in Ukraine are often labeled as genocide, but proving this is a very difficult process. Dr. Vitaliy Gutnyk, professor at Ivan Franko National University in Lviv, said that to prove genocide, it is not enough to find a single victim, but rather to identify the whole chain of command, and to verify all the elements of the crime.
Dr. Gabija Grigaitė-Daugirdė, Deputy Minister of Justice of the Republic of Lithuania and lecturer at the Faculty of Law of the VU presented Lithuania’s contribution to Ukraine’s pursuit of justice and said that Russia tends to hide the chain of command of its military to make it more difficult for other countries to prosecute its citizens for war crimes.
Legal prosecution of war crimes, in theory, seems easier than other international crimes, as the evidence is usually very clear. For example, Vladimir Putin is often very clear about exactly what he is doing in Ukraine and what he plans to do. However, it is still up to the prosecutor to decide what will be considered useful evidence and what will not.
In the discussion, Dr. Grigaitė-Daugirdė stated that many countries, including Lithuania, support the idea of prosecuting Russia in an international tribunal.
Later, Dr. Kateryna Latysh, a postdoctoral fellow from Ukraine, and Dr. Yvonne McDermott Rees, a professor at Swansea University in the UK, talked about the importance of digital citizen-generated evidence of war crimes: 3D models and maps of the destroyed towns, created with the help of drones and other similar technology.
According to Professor McDermott Rees, even though the justice system is usually seen as rather conservative and reluctant to adapt to technological change, there have already been cases where citizen-generated evidence (e.g. YouTube videos and photos) has been used in legal proceedings. However, sometimes such evidence can be controversial or unreliable because it may lack context of further interactions, which is always important to obtain and confirm.
Dr. Gabrielė Juodkaitė-Granskienė, Professor at the Faculty of Law of Vilnius University and Chairperson of the Criminal Division of the Supreme Court of Lithuania, confirmed that in the eyes of the judge, there is sufficient evidence of international crimes in Ukraine, but there are both opportunities, such as universal jurisdiction, and challenges, such as the need for the participation of the accused in the process, etc.
Valery Shepitko, Professor of Criminalistics at the Yaroslav Mudryi National Law University (Ukraine), discussed evidence gathering from a theoretical perspective. He presented his testimony about the destruction of the city of Kharkiv by the Russian army and stressed the importance of collecting good and valuable evidence during such attacks, because although war crimes seem obvious to most, the legal processes involved in investigating them are extremely complex.
Dr. Kateryna Busol (Ukraine), Associate Professor at Kyiv-Mohyla Academy, National University, highlighted the difficulties of investigating crimes of sexual violence in Ukraine since 2014 and stressed the importance of accountability, while Dr. Elena Katselli (UK), Associate Professor at the University of Newcastle, addressed the specificities, challenges and prospects of Ukraine’s case against Russia under the Genocide Convention, stressing that despite the limitations of jurisdiction, the state remains responsible under international law.