Prosecutor Yurii Bielousov: "We will now structure crimes related to our POWs, including facts of their execution, as potential crime of genocide"
Why do Russians often execute our military who surrender? How are such crimes investigated? Will we be able to return civilians who cannot be included in exchanges? What should the military expect after the amendments to the criminal law and the introduction of command responsibility?
Yurii Bielousov, Head of the Department for Combating Crimes Committed in the Context of Armed Conflict of the Prosecutor General's Office, answered these and other questions in an interview with our publication.
"THE NUMBER OF EXECUTIONS OF OUR MILITARY IS INCREASING EXPONENTIALLY"
- The Office of the Prosecutor General stated that criminal proceedings had been initiated into the shooting of nine Ukrainian prisoners of war in the Kursk region. How are such crimes investigated if investigators and prosecutors are unable to travel to the site? Is it possible to collect evidence and identify those involved in such crimes?
- This is a separate area of work for our department. And so far, we already know about 109 Ukrainian soldiers who were executed by the Russians.
In general, the topic of crimes committed against Ukrainian servicemen who were captured is broader for us and concerns not only the investigation of such facts, but also inadequate conditions of detention, torture, and deaths in places of detention. The most resonant example is Olenivka.
Previously, the facts of torture prevailed, and there were fewer killings of military personnel. But at the end of last year, the situation changed. And the number of executions of our military is increasing exponentially.
These are extremely complex cases, because in the vast majority of such cases we do not have access to the crime scene, to the bodies, and cannot conduct full-fledged initial investigative actions. And it is not always possible to conduct examinations.
Therefore, the main method of collecting information is from open sources. In general, we try to collect all possible information from various sources - data from our military, intelligence data, interrogations of Russian POWs, etc.
There are already verdicts in three cases of executions that took place in the first days of the full-scale invasion in Chernihiv and Kharkiv regions. They are still in absentia. However, there is already a case when a representative of the Russian Armed Forces, who, according to our information, was directly involved in the execution of Ukrainian soldiers, was taken prisoner. At the same time, we understand that people like him are executors, so to speak, pawns. And it is necessary to bring to justice not only them, but also all those involved in the organisation of such crimes vertically. Someone gave them orders, someone did not respond to such crimes, someone incited them. For example, the report of the Office of the United Nations High Commissioner for Human Rights mentioned Dmitry Medvedev, who in July this year directly called for the execution of our POWs on his Telegram channel. And he is not some blogger, but the Deputy Chairman of the Security Council of the Russian Federation.
We will now structure the crimes related to our POWs, including the facts of their execution, as a potential crime of genocide. Because it is becoming clearer and clearer. Here is the general hypothesis that we laid down - the Russians want to destroy the most proactive part of our population, which resists the attempt to absorb our nation in various ways.
Genocide is manifested in specific actions - killing, causing serious physical and mental harm, creating conditions for the physical destruction of people, deporting children, preventing childbearing.
And our military fits this hypothesis - they are the most active part of our society, they joined the army to defend us, and therefore, according to the Russians, they must be destroyed by all possible means.
If our soldiers die on the battlefield, with weapons in their hands, then we account for such losses as the consequences of the crime of aggression for the future Special Tribunal for Aggression. However, if they are taken prisoner, they must be treated properly, taking into account the requirements of the Geneva Convention on the Treatment of Prisoners of War.
However, since the end of last year, and especially in recent months, we have seen that our military personnel who have been captured are being physically destroyed. Obviously, there has been an indication of this.
And they are destroyed by direct execution, torture, and the creation of horrific conditions of detention. All of this falls under the elements of genocide described above. When they are not fed or provided with medical care, they are actually creating conditions for physical destruction. Torture and sexual violence, which is used on a massive scale, also fall under the element of genocide - the infliction of serious physical and mental harm.
Moreover, there are examples of the use of stun guns to the genitals and comments that this is done to prevent our military from having children. Preventing childbearing is another element of genocide.
In fact, four of the five elements of genocide, in my opinion, relate to POWs.
There are clear intentions, clear calls, clear forms of committing this crime. And this approach to interpreting genocide is not typical of international practice. No one has ever used it before. But we will try to prove that this is the crime of genocide.
-How difficult will it be to prove this and bring those involved to justice?
- It is very complicated. And we understand that any court will rely on existing case law. The practice of genocide is small. It relies solely on physical destruction, and it must be significant. We always think of Rwanda, where 800,000 people were killed. Or Srebrenica, where 8,000 people were killed out of a population of 40,000. That is, a fifth of the population was destroyed. Therefore, when it comes to the crime of genocide, it is counted how many people were killed and how much of the total population it is. And in the opinion of our international partners, this should be a very serious number. Unfortunately, this approach has developed. Although the approach should be quantitative and qualitative. That is, when it takes into account not only how many people were killed, but also who, and the impact of these people on the existence of society. It is quite obvious to all of us that if the Russians destroy this barrier of our military, they will take over the whole of Ukraine and destroy us as a nation.
We will prove that they want to destroy Ukrainians not as an ethnic group, but as a separate nation. Because they deny its existence. They are hampered by the military, volunteers, journalists, writers and other proactive citizens. These are the people who, in their opinion, prevent the rest of the population from "reuniting with the brotherly people". That is why they are the target of the Russians' intentions to kill, torture, deport - everything that implies genocide. And here it is cynical to operate only with numbers.
The double cynicism of the situation is that the word "genocide" was invented on the territory of Ukraine by Rafal Lemkin. And his first essay was "Soviet Genocide in Ukraine", which was published in 1953.
He said that destruction may not necessarily be physical. It can be the destruction of certain attributes of a nation. This is what the Russians are doing to make Ukraine cease to exist - that is, there will be people, but they will be part of another nation.
But this term in international law has been so diluted and the convention so narrowed that most of the concepts he laid down have been removed. And the concept of genocide was reduced to physical destruction only.
-Why did this happen?
- The so-called post-colonial countries have tried everything on for themselves and realised that it could hit them, because they remember what they did in their colonies in the past. Although they have moved far away from this, they have narrowed the term "genocide" for fear of persecution for those past deeds.
We are talking about analysing continuity. That this battle with Russia has been going on for centuries in various forms. What is happening now is a continuation of what the Russians have been trying to do for centuries. But foreigners do not understand this context and are frightened by this word. Nevertheless, we will try to prove our position in international courts.
Returning to the topic of POWs. We have not presented it in this context before. But now we see this tendency towards destruction.
-When investigating executions of servicemen, is it investigated under what circumstances they were captured and whether the actions of their commanders could have contributed to this?
- The Criminal Code has a separate section on war crimes. This is the competence of the Specialised Defence Prosecutor's Office. They establish whether there were violations of the order of service, what were the actions of the military authorities, etc. In particular, by studying the materials of the internal investigation, which is mandatory in such situations.
We also conduct so-called statutory examinations. Because often our military operate in a very complex context that needs to be analysed to understand, among other things, how a commander should have acted in a particular situation to avoid such grave consequences.
This is all done within the framework of separate investigations, we are not involved in this.
- The International Criminal Court has a mandate to investigate the cases of alleged executions of POWs taking place in Ukraine. This was stated by ICC Chief Prosecutor Kareem Khan at a meeting with Ukrainian journalists in The Hague. Do you submit materials on such crimes to the ICC?
- Firstly, we understand that the number of ICC employees working in Ukraine cannot be compared to the number of employees of our department. There are significantly fewer of them. Secondly, their task is not to replace the national system. They can investigate what is not being investigated by the country in whose territory international crimes are committed. Or, for some reason, it cannot do so because there are some restrictions: organisational, financial, etc. Or they don't want to do it.
Ukraine can and wants to investigate. And we are working very fruitfully with the ICC. I think this is the first time in their history that the ICC has worked in such a partnership with a national system.
The ICC is an independent institution, they take our evidence in any case they are interested in. If we send them 140,000 registered proceedings, I think we will simply paralyse the work of the ICC. And there is no point in that. We know what their priorities are, we know their direction of movement. The ICC is an independent institution, but they share with us the main directions. For example, one of the things that has already become public is the deportation of children.
They are also working on facts related to the destruction of the energy structure. We have our own "main" criminal proceedings, in which the first suspicions have already been filed.
And when the ICC becomes interested in a topic, it means that we have to stop the investigation. We have to avoid double prosecution in two jurisdictions for the same crime.
They send us requests within the framework of international legal aid, and we pass on materials to them.
Now they have also announced that they are focusing on places of detention, torture, and sexual violence. And these places of detention are for both civilians and POWs.
There are situations when civil society organisations insist that proceedings should be brought to the ICC on a particular case. However, the ICC usually does not focus on individual cases - they are interested in large-scale crimes that are part of state policy and involve the highest officials.
We harmonise with them, based on their priorities, and help them to take as many subjects as possible to prosecute.
- You have said that if the ICC becomes interested in a case, you have to stop the investigation. Can you explain in more detail why?
- For example, we will serve a notice of suspicion and then send the proceedings to court. The verdict will be passed by a national court. And then the question arises whether the ICC will take over the case. Because the person has already been punished for the crime. And then the ICC can be accused of re-prosecuting a person for the same thing for which he or she has already been prosecuted.
-What is your attitude to the trials that are taking place in Russia against our military and civilians on a massive scale? Do you follow these trials?
- We deal with these processes in the context of such a crime as violation of the right to a fair trial. What is happening is the fabrication of criminal cases and the prosecution of people on far-fetched grounds. This is a war crime.
The first such case was in the so-called "DPR", when a sentence was passed on foreign combatants who were legally in Ukraine as part of the Armed Forces. And they cannot be held accountable for this.
Now we have already served the first suspicion on a representative of the Investigative Committee of the Russian Federation for fabricating the case. We were able to prove that the person could not have been where they say it was a falsification by the investigator.
We continue to work in this area. There's a whole bunch of people involved: investigators from the Investigative Committee of the Russian Federation, the prosecutor's office and the courts. We can say that this is a criminal organisation that fabricates cases against our military and civilians.
- Won't it turn out that those whom they manage to convict will remain in Russian colonies even after the war is over? After all, formally, the trials have taken place and there are sentences.
- They will definitely not be ignored. The Coordination Headquarters for the Exchange of Prisoners of War of the Defence Intelligence of Ukraine and the Centre for the Exchange of Prisoners of the Security Service of Ukraine are doing a great job.
Our task is to record where these people are now and what is happening to them. So that when we have the opportunity to take them away from there, no one will be lost from sight.
"FOR RUSSIANS, JOURNALISTS, LIKE THE MILITARY, ARE ALSO THE NUMBER ONE ENEMY"
- Recently it became known that journalist Viktoria Roshchyna died in captivity. There are also many more of our journalists in Russian colonies. Are there any investigations into these facts in Ukraine?
- Absolutely. For us, journalists are representatives of the group I have already mentioned. This is the group of people with the most proactive stance that is targeted by the Russians. For the Russians, journalists, like the military, are also the number one enemy. Because these people influence the opinions of other people.
-Do they hold them and try them as civilians or as POWs? Because Russians sometimes like to substitute concepts.
- A civilian cannot be in captivity. Because captivity itself is a rule of war. That is, when military personnel are taken prisoner, it is in line with the rules of international humanitarian law. It's just that the party that took them prisoner has to comply with its obligations. But the Russians are not doing this. And when POWs are executed, this is the most brutal violation of international obligations.
POWs must be kept in appropriate conditions, provided with adequate food and medical care, and allowed to visit the Red Cross. These are all things that Russia violates on a massive scale. And then we conduct an investigation. The mere fact that a soldier is in captivity is not a crime. Sometimes we are approached and told: "a person is in captivity, launch an investigation". We explain that such information should be provided not to us, but to the Information Bureau and the Red Cross, so that the military can be released from captivity.
But when a civilian is detained, it is a crime. And this is actually a very important point. Because when we say civilians are in captivity, we are understating the severity of the crime committed by the Russians. In the case of civilians, there is no question of captivity - it is illegal detention, illegal deprivation of liberty. And it is necessary not only to take the civilians out of there, but also to investigate each such fact.
When the Russians were preparing for war, they liberated the colonies to keep our people there. Sometimes they kept the military separately, sometimes together with civilians. For example, in Olenivka, they held both military and civilians. This once again confirms that they do not distinguish between these categories.
Although no international conventions even stipulate conditions for the detention of civilians, because they cannot be held in places of detention without any reason at all. But does Russia take this into account?
- Journalists are almost never returned. No one to replace them?
- I wouldn't talk about an exchange here.
-What should we talk about to get our journalists back?
- Here I see the need for the international community to continue to put pressure on Russia. We are facing evil. It's like talking to a zombie - they don't understand human language, only force. And if they understand the power of the international community's pressure, then we must definitely promote it.
What is the danger of the word "exchange"? If we say that the exchange of civilians is possible, then we are not on an equal footing with the Russians. There are several million Ukrainians in the temporarily occupied territories, and we don't have that many Russian civilians here. Our law enforcement officers detain our citizens who work for the enemy - for espionage, collaboration. But not to replenish the fund, but because they commit crimes.
And if we offer a civilian-for-civilian exchange, the Russians will start detaining people en masse in the occupied territories. At the same time, we will be forced to give them those who commit crimes here (sabotage, espionage, etc.), and they will give us people who were caught in the street.
- This all sounds logical. But how can those they keep there survive, with little chance of returning? Victoria has already died. Do we know anything about the cause of her death?
- It is not yet known.
-Should the Russians inform the Ukrainian side about those who died in their detention centres or colonies?
- Let's distinguish between civilians and military. They should constantly inform the Red Cross about POWs, allow representatives of this organisation to visit them, send letters, and allow them to control their conditions of detention. This is not being done.
Civilians are even more difficult. It's like when a maniac holds someone hostage. You have to negotiate with him to get the person out of there, not tell him: "Look, you have to respect international conventions and human rights."
- Are there any criminal proceedings against Russian propagandists who play a significant role in the war?
- A number of large-scale investigations have been launched into the fact that representatives of the Russian media, religious organisations and others assisted in the preparation and conduct of the aggressive war and the annexation of Ukraine's territory. Indictments against five people have already been sent to court. Among them are Kremlin propagandist Simonyan, head of the so-called "DPR" media holding Besedin, assistant to the President of the Russian Federation Medinsky, former head of the board of directors of "Channel One", diplomat and rector of the Moscow State Institute of International Relations Tarkunov, and actress Chicherina.
In addition, 14 people were served with suspicion notices, including propagandists Skabeyeva, Kiselev, Solovyov and others. Currently, work is ongoing in relation to 280 propagandists, state media holdings and corporations in Russia.
- In Moldova, one of the Kremlin's war ideologues, Dmitry Chistilin, was detained - the developer of the "Information Warfare Strategy" that justified Russia's full-scale invasion. There was information that he was suspected. What's happening to him now?
- Ukraine tries to take them back if there are grounds for extradition. Ukraine has several places for holding such persons. They are in a safer part of our country. There are appropriate security measures, including bomb shelters. And when communicating with international partners, our colleagues tell them about this. They try to convince them to hand over such people. After all, when Finland refused to hand over the former leader of the neo-Nazi sabotage and assault reconnaissance group "Rusich", Jan Petrovsky, who was detained there, it was a signal to many other countries. But now, thank God, the situation with the Finns is different. They have ongoing trials there, and we, for our part, have provided them with what we could. We hope that in the near future there will be a decision from their local court.
Therefore, the topic of deportation is painful and, perhaps, more political. But I repeat myself: Ukraine has created all the conditions for such people to be transferred here. The citizen you are asking about is also currently being negotiated.
- You mentioned the tragedy in Olenivka. Has the investigation into this case been completed?
- So far, no. During the investigation, we refuted their version that it was the Ukrainians who struck the colony. But several other versions are still being worked out by the investigation, because we do not have access to the colony.
- Ukraine has recently ratified the Rome Statute. A bill amending the Criminal Code was also passed. How will this affect the investigation of war crimes?
- This is a critically important step for Ukraine. Firstly, ratification is a recognition of the authority of the International Criminal Court. Ukraine had already recognised it earlier, but through a different procedure. And now no one has any questions that the ICC has full jurisdiction. The only exception is a seven-year limit on the prosecution of Ukrainian citizens. Ukraine has made this reservation and it is provided for in the Rome Statute.
Ratification also implies that Ukraine will implement the Rome Statute in its legislation. Different countries have done this in different ways. Some expanded the interpretation, others narrowed it. This is an exclusively national matter.
The Prosecutor General's Office has developed a number of proposals to the draft law initiated by the President. We proceeded from our experience of the investigation. These proposals were taken into account.
What does the law that has already been adopted give us? Firstly, the Criminal Code now includes crimes against humanity. This gives us the opportunity to show in court the scale and systematic nature of the crimes committed by Russians on our land.
-What else does this law introduce that is important?
- Universal jurisdiction is being introduced. That is, if a person has committed an international crime in another country and then comes to us, and for some reason Ukraine cannot extradite him or her to that country, we are obliged to bring him or her to justice.
-We are not talking about citizens of our state, am I right?
- Yes. This law also recognised calls for genocide as a serious crime and changed the penalty accordingly.
In addition, the title of the article under which we investigate crimes committed during the war has been changed - now it is "war crimes", not "violation of the rules and customs of warfare". And part 2 of this article has been slightly amended, because previously it provided for increased liability for premeditated murder. And we have many cases where people are killed in our country, and there is no way to prove that it was a premeditated murder. Therefore, now there is a clarification of the grave consequences that led to the death of a person.
Another innovation is team responsibility. By the way, those who frightened our military with responsibility forgot to say that command responsibility was envisaged a long time ago. In the Criminal Code, in the section on war crimes, there is an article that deals with the inaction of the military authorities. It clearly spells out the command responsibility of our military commanders in an armed conflict. As for the Russians, there was a question. Because there was no direct rule on the command responsibility of the Russian military. Although there were different approaches. There was the approach that Ukraine could prosecute under command responsibility in the absence of a provision in the Criminal Code with a direct reference to the Geneva Convention and Additional Protocols. And we were working on this mechanism.
And now that the Criminal Code has a separate provision on command responsibility, it will make it much easier for us to bring Russian leaders of various levels to justice when there is no evidence that this particular person gave a direct order.
Now, if he or she was responsible for a certain territory, and dozens, hundreds or thousands of war crimes were committed on that territory in a certain period, that person will already be held accountable.
-Are there cases when criminal proceedings are opened against the Ukrainian military for war crimes?
- Yes. And such proceedings are being investigated. Because if this is not done, Ukraine will have questions and international institutions will deal with such facts. This is what we have been talking about. If Ukraine does not want to or cannot investigate any international crimes, the ICC can take over.
Our task is to show that Ukraine is objective and that such investigations are underway.
We are also trying to convey to our military and their commanders the idea that even the fact that Ukraine has been attacked does not relieve us of our obligation to comply with the Geneva Convention. This is a very important point. We once talked to a colleague from Croatia and he told us that the Croats once believed that they were defending themselves and were not subject to the rules, so they allowed themselves certain violations of international humanitarian law. And when Croatia wanted to become a member of the European Union, they were asked what happened to the investigation into the war crimes where Croats were accused. And since they answered that nothing had been done, they were blocked from joining on this basis. Because we are talking about the rule of law. And they were forced to start an investigation into their military commanders 10 years after the end of the war. This, of course, caused a great deal of public outcry. That is why we, the command of the Armed Forces and the leadership of the Ministry of Defence are trying to prevent violations of international humanitarian law. For example, the Ministry of Defence has set up a relevant unit on international humanitarian law, whose specialists conduct quite a few classes and briefings to prevent the commission of possible war crimes.
- Law enforcement agencies of other countries also have the opportunity to prosecute our military, regardless of whether they have ratified the Rome Statute or not. Because the applicant in such cases can be any person who left Ukraine during the war and decides to accuse someone from the Ukrainian military of committing a war crime. Are there any such cases?
- There were such requests to us. But when we said that Ukraine would conduct the investigation itself, the investigations were suspended in the countries that had requested it.
I understand the indignation of the military, who say that Ukraine is bringing its own people to justice by investigating such proceedings. We don't have to do this if we want our international partners to do so. But the best safeguard is not to commit war crimes.
"RUSSIANS ARE MASSIVELY USING CHEMICAL WEAPONS AGAINST OUR MILITARY"
- Putin was not arrested in Mongolia under an International Criminal Court warrant. And although the ICC has already publicly reacted to this, Putin remains at large. Why is the Rome Statute ineffective in such situations and can't the country be forced to comply with it?
- This issue goes beyond the war between Russia and Ukraine. Unfortunately, there is much more politics than law here. And this applies to many things. Starting with the creation of the Special Tribunal, which Ukraine is promoting. For lawyers, this is a matter of one day. Politicians take into account many other factors. I mean our partners.
The same is true for compliance with the Rome Statute. There must be an effective tool to punish non-compliance with the Rome Statute.
-Does it not exist?
- Let's just say that there is room for improvement in this area. This is primarily a question for the International Criminal Court. They must take effective measures. Because what is happening is destroying the international justice system.
- Quite often, in interviews, the military talk about the use of poison gas, phosphorus bombs and other prohibited weapons against them. Are such facts documented?
- Absolutely. We are working in this direction together with the Security Service of Ukraine and the relevant international organisations responsible for the prohibition of chemical weapons. We are currently expecting a number of visits by international experts, during which they can verify that such facts are taking place.
Russians are massively using chemical weapons against our military. In particular, chloropicrin gas, which is used on the battlefield. This is a violation of international humanitarian law.
Ukraine, for its part, is trying to document this qualitatively. Of course, there are certain difficulties with documenting such crimes on the battlefield, but we are doing it anyway. We also cooperate with international partners, develop algorithms of actions, our specialists are trained, etc.
- Trying to destroy us as a nation, the Russians do not spare cultural heritage sites. Is there any data on the number of destroyed or damaged monuments and stolen collections?
- At the beginning of this year, a separate department was set up in our department to focus specifically on cultural heritage sites. Before that, there was another area - theft and smuggling of cultural heritage - and our colleagues from another unit were investigating such crimes. Now we are bringing it all together. We are also working very closely with the UNESCO office in Ukraine, and they keep a separate register.
It was the Prosecutor General's Office that began to raise the issue of the need for a register of cultural heritage in Ukraine, which should be maintained by the Ministry of Culture. For various reasons, the Ministry did not do this for a long time, but now the situation has begun to change for the better, and registers have begun to be formed.
Ukraine also has a fairly powerful pool of non-governmental organisations that deal with cultural heritage. We are lawyers, and they are specialists in cultural heritage. We have a group of various NGOs, representatives of UNESCO, and our prosecutors.
This year, we initiated two conferences on cultural heritage in order to draw maximum attention to this issue. And besides the fact that the destruction of cultural heritage is a crime in itself, we also potentially consider it in the general framework of genocide.
Why are they attacking it like this? Because they are attacking our past, our future and our present. Our future is the children they take away and brainwash. And our past is our cultural heritage.
They do it deliberately. Even when they steal icons, paintings, and various artefacts in Ukraine, they hang them in their museums under a different name. They have no deep roots, they are barbarians.
Tetiana Bodnia, "Censor.NET"
