One of the important aspects of the judicial consideration of criminal proceedings related to war crimes is the documentation of these crimes. This is a guarantee of further effective investigation, bringing the perpetrators to criminal responsibility, and compensation for damage. However, in the conditions of hostilities, documentation and collection of evidence have their own specifics and objective limitations.

Usually in cases related to the armed aggression of the Russian Federation, the pre-trial investigation is conducted by the SBI (the State Bureau of Investigation), the SSU (the Security Service of Ukraine), and the National Police of Ukraine. Such war crimes as bombing a train station or hitting shells in civilian territory under the control of Ukraine are a common work for pre-trial investigation bodies, during which there arise no additional challenges, except for the tragedy and scale of the problem. 

However, a huge number of war crimes are committed on the front line, in the course of hostilities. Despite the status of servicemen, the SSU, the SBI, and the National Police of Ukraine can be described as “civilian” pre-trial investigation bodies that have extremely limited physical ability to reach the demarcation line to document crimes. Typically, crimes of this nature are investigated after Ukraine regains control over the temporarily occupied territories. 

The time period through which investigations can begin varies from one day to a much longer period of time. As a result, evidence, materials, traces of a crime, etc. may disappear or be destroyed, which complicates the situation. This creates significant difficulties in the context of documenting the damage caused.

Another problem is that often, there is no one whom you can report a crime to. Who will then legally record the fact that, for example, a missile or bomb attack was carried out on a certain object, or civilians were executed or killed?  In the context of hostilities, it seems logical that the very structure that learns about these facts should be the first to document them. 

No less important is the recording of personal data and testimony of witnesses, in particular servicemen, victims, and eyewitnesses of the crime. The difficulty lies in the fact that if this is not done immediately, witnesses may subsequently die, move to another region of Ukraine or beyond its borders.

It should be recognized that for both servicemen of the Defense Forces of Ukraine and civilians, documenting crimes in full compliance with the requirements of the Criminal Procedure Code is not a priority. In this context, it is worth referring to the Guidelines on investigating violations of international humanitarian law prepared by the International Committee of the Red Cross (hereinafter the ICRC). They set out recommendations that can contribute to the collection of evidence of war crimes committed and damage caused. In the event of war in Ukraine, such recommendations are very relevant, but they are not fully used and implemented at the moment. 

These Guidelines of the ICRC and other humanitarian organizations, in particular, the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), the Istanbul Protocol on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992), and documents prepared by the Ministry of Foreign Affairs of the United Kingdom, provide for the specifics of the investigation of certain cruel crimes during hostilities. At the same time, it is the ICRC recommendations that are the most relevant instructions on what to do in such cases. 

In particular, the ICRC recognizes the importance of the role of military personnel in recording the facts of a crime committed during hostilities and emphasizes that “the commander present at the scene of an incident should take all feasible steps to ensure the securing and preservation of relevant information and evidence” (Guideline 2). To ensure this, the Committee points out the importance of special training of military personnel, as well as the fact that the statutes of the armed forces should determine the persons who are entrusted with the documentation, the relevant deadlines and procedures, and the documentation itself should be adapted to the capabilities of those who will carry it out, and the conditions in which they will have to work. 

Servicemen can, for example, perform a crime scene inspection, photo fixation, video fixation, draw up an inspection protocol, etc. They can also, while evacuating people, record the names of witnesses, where they plan to go, take their contact and passport data, so that in the future, when the pre-trial investigation is conducted by civilian authorities, it will be possible to properly identify witnesses. In the case of more serious incidents, it is envisaged to involve professional investigative groups, that is, cooperation with pre-trial investigation bodies is allowed. 

If we talk about the approach of the European Court of Human Rights, then its requirements for carrying out an investigation during the conduct of hostilities are much softer. This is confirmed, in particular, by the judgment of the Court in the case of Al-Skeini and Others v. the United Kingdom and the judgment of the Grand Chamber in the case of Hanan v. Germany, which can be considered invaluable in this context. In them, the ECHR analyzed how the investigation was conducted in the context of hostilities.

In the case of Hanan v. Germany, it was about conducting a bomb attack in the midst of hostilities in Afghanistan. During the operation of the UN peacekeeping forces and the allied forces in Afghanistan to suppress the Taliban forces, the German military decided to launch a missile and bomb attack on the fuel tankers captured by the Taliban, which killed more than 100 people and there were very serious reasons to believe that most of the dead were civilians. 

In the future, an investigation into the circumstances was conducted and it faced the above difficulties, in particular, the fact that the police did not have access to the scene and, as a result, the priority actions were carried out by the servicemen themselves. That led to a situation where the military investigated, recorded, and documented crimes that could have been committed by themselves or their colleagues. Nevertheless, the ECHR, having analyzed the circumstances of the case, recognized that the delays in the investigation, recording, and inspection of the scene were caused by objective circumstances, since everything happened in the combat zone and that practice was permissible.

The Ukrainian legislation currently does not allow servicemen to perform duties of this nature, and they are not prepared to carry out such actions. Obviously, in the early stages of the war, when the situation was on the verge of uncontrolled, the training of the military in that direction was not a priority. However, now, in the conditions of relative stabilization of the operational situation, it does make sense to direct forces to such training. It is not a question of all military, perhaps it is necessary to identify individuals in the composition of units of a certain level (a brigade, battalion, or a company) or to give these powers to the formations’ commanders.

Therefore, it seems appropriate to implement the ICRC recommendations on the possibility of documenting the facts of war crimes and damage caused by servicemen into the national criminal procedure legislation. This issue deserves discussion, and it will have a positive impact on the investigation of war crimes and war damage reparations both in the case of armed aggression against Ukraine and in general. 

Obviously, this does not exclude doubts about the quality of the evidence collected in this way. Also, such recommendations of the Red Cross won’t be similarly effective in all situations related to war crimes. However, whatever the prospects for using the recommended methods, it is advisable to conduct discussions on the education and training of the military in the collection of evidence and recording of war crimes, as well as on making appropriate changes to national legislation.