It is a colossal effort, focused on the gravest horrors that have unfolded in Ukraine over the past few months: the country’s investigation of more than 16,000 reports of alleged war crimes by Russian troops. From Bucha, the Ukrainian city devastated during a monthlong occupation, to Chernihiv, Borodyanka, Kharkiv and other areas the Russians have targeted, Ukrainian officials say Moscow’s forces have engaged in a campaign of terror against civilians.
The allegations involve the actions of individual soldiers and large-scale atrocities, and range from summary executions to rape. Proving the charges, Ukrainian officials concede, will be no easy task: Their investigations must be conducted in the midst of a live conflict, and the majority of their suspects are behind enemy lines. Some are high-ranking officials in Moscow.
The Ukrainians have already found a measure of justice, albeit in smaller-scale cases. On May 23, Sgt. Vadim Shishimarin, a Russian squad commander, became the first soldier to be convicted of a war crime in Ukraine. Shishimarin was captured by Ukrainian forces and confessed in a Kyiv courtroom to shooting a 62-year-old civilian during the first week of the war. He testified that he had done so on the orders of a lieutenant who feared the man would report on their unit. Shishimarin was sentenced to life in prison. A few days later, two Russian soldiers were found guilty of indiscriminate shelling against civilian targets in Kharkiv. They too confessed to their crimes. Both were sentenced to 11-and-a-half years in prison.
The Ukrainian prosecutor general’s office said more than 80 such cases have been opened, but these may represent relatively easy prosecutions, as they involve Russians who have been captured on the battlefield.
Meanwhile, the path to larger-scale war crimes prosecutions is complicated by the fact that neither Ukraine nor Russia are members of the International Criminal Court (ICC), where international war crimes cases are heard. That, according to Andrey Smirnov, the official charged by Ukrainian President Volodymyr Zelenskyy to spearhead the effort, is why Ukraine is pressing for a special international tribunal to study the charges against Moscow. “The main goal of our government is to achieve justice,” Smirnov, who is the deputy head of Zelenskyy’s office, told Grid.
A lawyer by training, Smirnov also noted that the ICC has a specific remit that might limit the scope of its investigations. The ICC’s mandate, he said, means “they cannot hold Russia accountable for the crime of aggression against Ukraine,” he told Grid. “That is something that can be done with a special tribunal.”
Smirnov spoke to Grid from his office in Kyiv.
This interview has been edited for length and clarity.
Grid: Ukraine’s top prosecutor has said that authorities in your country are investigating more than 16,000 potential war crimes cases against Russia. Could you tell us about the status of these investigations and the push to prosecute Russian soldiers and officials? Where does the process stand?
Andrey Smirnov: It is a big number, 16,000 — but the focus is really not on the number of investigations. It is on trying to get verdicts. That is what we care about and what we are focused on. The investigations of course involve the prosecutor’s office, the police and other parts of the security services, and that is being done.
But when we talk about status, we are also focused on making sure that we can get verdicts. The main goal of our government is to achieve justice. We want and need quick results. So we need to approach this in a way that we can hold the highest military officials and the highest political officials in Russia to account. That is what we want.
Now, when it comes to the ICC in the Hague, the first thing is that Ukraine and Russia are not members. We can’t change that today, so we have been asking for the establishment of a special international tribunal, one that will be focused on the Russian invasion of Ukraine. It would help us make the case against Russia. And our international partners have been supportive of the idea — they understand, I think.
It would also help us hold Russia to account not just for specific crimes but its general aggression against Ukraine, which is perhaps the easiest thing to prove in legal terms. The ICC — they act under a certain mandate, investigating crimes against humanity, genocide and war crimes, but they cannot hold Russia accountable for the crime of aggression against Ukraine. That is something that can be done with a special tribunal.
We’ve been thinking about all aspects of this tribunal, working with our partners internationally. We even had an idea for a location for the tribunal — a new courtroom, overlooking the former Russian Embassy in Kyiv. But of course that would open the tribunal to charges of bias. So now we are looking at other locations.
The point is that for us this is an urgent matter. Russia has caused terrible destruction and left all of us with a terrible emotional burden after the atrocities it committed in places like Bucha, Borodyanka and Chernihiv.
G: We’ve seen some discussion recently about the use of the term “genocide” to describe Russia’s actions in Ukraine. What is your view here? Is that something you’re going to try to prove at an international court?
AS: Genocide is the crime of all crimes, in my view, but it is also hard to prove. The key issue is to prove intent. We have no doubt in our mind, and I am optimistic that, ultimately, the legal case will be made against Russia. It is, however, something that will happen at the ICC, as the mandate they have covers allegations of genocide.
Our experts, our partners, are all assisting them in their investigation into these allegations of genocide, and we are, as I say, positive about that process. Again, I repeat, we are confident that a case can be made against Russia. But as I said before, we are also looking beyond what can be covered by the ICC mandate. That is important, but there is more that needs to be done in terms of securing justice.
G: In terms of whom you wish to hold accountable — who, exactly, are you building cases against? Soldiers, officers, the Russian leadership in Moscow? We’ve seen calls to try and hold Russian President Vladimir Putin accountable for the crime of aggression against Ukraine — are you also pursuing that?
AS: It is part of the push for the special tribunal. We can’t hold him to account at the ICC, but we can do that at a special tribunal that is looking specifically at the invasion of Ukraine. He is of course at the top of the list of people we would like to see prosecuted, along with members of his military leadership. We do not want to make this about the soldiers on the ground alone. We want to bring the Russian leadership to justice.
G: But given how hard it can be to bring such cases to trial, let alone secure verdicts — how much of what you are doing is also about pressuring Russia, against the backdrop of a continuing conflict?
AS: Putting pressure on Russia to end the war and holding its leadership to account for their crimes are two separate things. We — Ukraine and the world — can’t close our eyes to the atrocities that have happened here over the past few months. You cannot look away from that. You cannot have one country completely ignore the sovereignty of another country, you cannot have them do what they have done in Ukraine, and then ignore those facts.
This is about accountability. It has nothing to do with any other process. All war criminals must be held to account. They must face justice. That is why we are doing this.
G: Will you also be seeking financial damages?
AS: No amount of money can erase or make better what has happened in Ukraine. But we will try and secure whatever we can, including financial damages, yes, to rebuild our country. The process is complicated, but we are discussing with our international partners how to, for example, access Russian assets abroad to help rebuild Ukraine.
There are two parts to this. One is trying to securing assets that are connected to the Russian state and the leadership. But there are also many individuals who have been sanctioned already by many countries for their support of Russia and for their connections to the Russian leadership. We are also going to pursue their assets. It is part of a larger process to do what we can make sure there is justice. We cannot reverse the death and destruction. But we can try and hold Russia accountable, and we can do that in every way that is possible, including by seeking access to assets connected to the Kremlin.
G: There’s often a trade-off in war, between peace and accountability. Your government has said that eventually this conflict will have to end in negotiations with Russia. Will these ongoing trials make that more difficult?
AS: No, I don’t believe so, nor does our government, nor do our international partners.
Russia has developed this tradition recently of absolutely disregarding international agreements and international law. That is why they have done what they did in places like Bucha. We must hold them accountable for that.
Yes, we must work to end this conflict and end the Russian invasion of Ukraine. That is something that we are engaging with in the peace talks. But we cannot ignore the atrocities. The peace negotiations cannot be linked to these investigations and to our desire for justice.
Thanks to Lillian Barkley for copy editing this article.