Discussions centred on the following:
- The Office of the Prosecutor General of Ukraine (OPG) had already recorded over 170,000 incidents of potential war crimes, with 679 indictments and conducted a number of successful trials with 188 war crimes convictions (at the time of the conference). But the scale of the challenge was immense. Ukraine was creating special units within regional offices on specific issues, such as the deportation of children, war crimes against cultural heritage and civilian infrastructure. The establishment of the Victim and Witness Coordination Centres had also proved helpful.
- However, ongoing work was urgently needed on prioritisation of cases, setting clear criteria and close engagement with the ICC; as well as the need for flexibility for prosecutorial discretion in criminal procedure codes; and training on data entry into databases to digitalise manually-collected data.
- Coordination remained a challenge with the number of actors in the accountability space; greater coordination was needed to reduce duplication and ensure the best collective support for Ukrainian efforts, in the context of an increasingly competitive resource environment.
- Other challenges included: access to witnesses and sites in the occupied territories; limited trauma-informed support services; prosecutors working in active war zones; the vilification of (particularly Ukrainian) defence lawyers “even though without them there can be no fair trial”; a lack of specialised kit such as sufficient bullet-proof vests, evidence-gathering equipment and software for systematising evidence collection for investigators.
- Recognition of the remarkable work of Ukrainian lawyers, prosecutors and judges but acknowledgement that “burnout is a threat to the integrity of the Ukrainian justice system.” There was an urgent need to address wellbeing concerns and systemic stress among legal professionals, particularly the immense toll on female judges often with family responsibilities and living under daily threat. Whilst training and mentoring had a role, peer-to-peer support on the ground was thought to deliver the most sustained impact.
- Recognition of the work of OPG’s Conflict Related Sexual Violence (CRSV) Division, including the production of Standard Operating Procedures, as a model of best practice which might be replicated in other workstreams.
- Generative AI had the potential to play a transformative role with the large scale and complexity of criminal cases, but had not been adequately tested in terms of reliability, data protection, transparency of public decision making, the potential unintended consequences for vulnerable and underrepresented groups; and the significant costs of “vendor lock-in”.
- The Register of Damage – more work was needed on operationalising this as well as raising awareness among victims of the benefits of registering claims despite the absence of clarity on reparations.
- The need for Transitional Justice work to commence – however imperfect – amidst the current conflict (noting also the work following the 2014 invasion).
Recommendations
- The OPG should consider developing a case priority strategy on which trials to pursue, including which in absentia trials are of most importance
- Changes to the Ukrainian criminal procedure codes should be prioritised, guidance developed on how to build a case strategy; and coordination improved between agencies on data sharing
- There should be support to embed a culture of wellbeing and care within the legal community. In particular, peer-to-peer support on the ground should be prioritised to support Ukrainian judges, prosecutors and lawyers
- The Atrocity Crimes Advisory Group should be supported to continue its coordination and good work, but also encouraged to find new ways to channel and facilitate pro bono and wider international support to Ukraine
- A protocol should be developed, involving both legal and technology experts on how AI can be used sustainably and ethically in criminal justice cases. There may be multilateral organisations (such as Council of Europe) that are well placed to do this
- Support should be given to the OPG to roll out the SMEREKA e-case management system next year.