Deputy Prosecutor General Andrii Leshchenko: "Since killings of civilians began almost simultaneously across entire Kyiv region, where various units of Russian armed forces were deployed, this provides grounds to believe they received corresponding order"
Terror against the civilian population, detention of unarmed people in the streets, torture in places of captivity, mass killings in the occupied territories – all this has become one of the elements of the Russian-Ukrainian war. That is why we spoke with Deputy Prosecutor General Andrii Leshchenko about when and why Russian servicemen might have received such orders, and what investigators and prosecutors have been able to establish by analyzing the testimonies of prisoners of war and captured documents.
But we did not talk about that alone; we also discussed the investigation of high-profile crimes. And even nearly three hours of conversation were not enough to ask all the questions of interest.
In the first part of the interview, read about how the Special Tribunal is being formed, which high-ranking Russian officials will remain protected by immunity once it becomes operational, which members of the armed forces can be held criminally liable as mercenaries, and which civilians may end up in a Russian prison as combatants
"THE ‘QUICK WAR’ FELL THROUGH: HOW CIVILIAN RESISTANCE BROKE RUSSIA’S PLAN TO SEIZE KYIV IN THREE DAYS"
– A political decision to establish a Special Tribunal for the crime of aggression by Russia has already been made. Could you explain how this process should proceed next? Who will form this tribunal?
— It will be formed by the countries of the European Union. It is being created within the EU framework. For its part, Ukraine can play solely the role of the state interested in this. We can encourage our partners to ensure that this tribunal is established as quickly as possible and prepare the relevant materials.
At this stage, we have a legal framework. And we hope that as early as next year, a commission will be created, whose task will be to select, on a competitive basis, judges and prosecutors to serve on the tribunal.
Before the Special Tribunal was set up, an open question remained as to whether the crime of aggression itself would be punished. After all, war crimes—torture in places of deprivation of liberty, killings along the line of contact, crimes involving sexual violence in occupied territories, fall within the jurisdiction of the International Criminal Court. But Russia is not a State Party to the Rome Statute, and accordingly, the Court’s jurisdiction cannot extend to crimes committed on the territory of Russia. Likewise, the ICC’s jurisdiction did not extend to the crime of aggression itself, even though that crime is provided for in Article 8 bis of the Rome Statute.
That is why the need arose to establish a new legal mechanism so that, at the international level, there would be an opportunity to hold perpetrators accountable for the crime of aggression.
At the same time, the crime of aggression, even with the Special Tribunal in place, will not be disregarded by the ICC. In each case, during the investigation of war crimes, the collection of evidence, and the identification of those who committed them, the Court must also establish the so-called contextual element. In other words, the direct link between the possibility of committing the crime and the existence of an armed conflict. If a crime is committed independently and has no connection with an armed conflict, it is no longer a war crime but a common criminal offense. However, if ICC investigators, prosecutors, and judges conclude that a specific war crime could only have been committed due to the existence of an international armed conflict, then it falls within the Court’s jurisdiction, and it can investigate it.
Thus, in some cases, the interests of these two judicial bodies will intersect, but they will not compete with each other. The ICC establishes the contextual element, which is only one component of the crime, while the Special Tribunal will assess the role of the individual in committing the crime of aggression and the presence of other elements, in particular the leadership element. In other words, whether this person could influence the course of events, or had the legal authority to manage certain processes within the state. Based on this, the appropriate decision will be made.
We count on the Tribunal beginning to operate as soon as possible.
– Do we propose our own vision regarding procedures and deadlines?
– The process of establishing the tribunal lasted for more than a year. It was handled by the so-called core group, which included representatives of the foreign ministries of over 40 states. Ukraine was also part of it as the country that suffered the most from the crime of aggression and was the initiator of creating such a tribunal.
In addition, in 2023, on the initiative of the Office of the Prosecutor General, a Center for the Prosecution of the Crime of Aggression was established within Eurojust. This is an association of investigators and prosecutors from different countries. Its members include representatives from Latvia, Lithuania, Estonia, Romania, Ukraine, and Poland. The main task is to collect evidence of the crime of aggression. All evidence with respect to the designated circle of subjects who may bear responsibility for committing the crime is collected in accordance with national criminal legislation. However, all of it is accumulated in a repository administered by Eurojust. This is done not only to gather evidence but also to analyze it, to compile a corresponding report, which, as we believe, will contain evidentiary information on the involvement of specific individuals in committing the crime of aggression by the Russian Federation. And once the relevant legal mechanism in the form of the Special Tribunal begins to function, this evidence and analytical information may already be handed over to the designated prosecutor. On their basis, the prosecutor will be able to decide on opening proceedings against a given individual.
The Statute of the Special Tribunal provides that Ukraine may initiate the transfer of relevant documents, materials, and evidence to the Office of the Prosecutor of this body, on the basis of which decisions on launching investigations will be made.
The collection of evidence of the crime of aggression has been ongoing. The analysis of this evidence is also taking place. Investigators of the Security Service of Ukraine and prosecutors of the Office of the Prosecutor General are involved in this process. On a permanent basis, coordination of efforts and activities takes place with representatives of investigative and prosecutorial authorities of other countries I have mentioned. A certain strategy and tactics for investigating this crime are being developed.
– Who can end up in the dock once the tribunal begins its work?
– The top political leadership and the military-political leadership of the aggressor state.
– Is Putin effectively protected by political immunity as long as he remains president, making it impossible to hold him accountable?
– Yes, as long as Putin remains in office, he cannot be brought to justice. However, this does not deprive the state of Ukraine of the right to collect and transmit to the Office of the Prosecutor of the International Criminal Court evidence of this individual’s involvement in planning, preparing, initiating, and waging a war of aggression. Evidence is being collected, and there are no obstacles in this regard.
– Who else is protected by immunity besides Putin?
– The Prime Minister and the Minister of Foreign Affairs of the Russian Federation. But a large number of military officials who directly oversee general processes and the conduct of the war may be held accountable, as well as other political leaders who were directly involved in preparation, planning, and assistance in waging the war.
In other words, the scope of individuals is not limited to this trio. It is much broader.
– If there is an agreement to stop the war, would Ukraine and other European states have to abandon the Special Tribunal?
– My personal view is that no agreements affect the existence or non-existence of a crime. The crime of aggression, as it was, so it remains.
Secondly, even the Criminal Code of Ukraine provides for liability for the crime of aggression.
Given that we have signed and ratified the Rome Statute, the stage of its implementation must take place. We must adopt the relevant laws and align the definition of the crime of aggression with the definition contained in the Rome Statute. At the same time, this implementation will not remove the crime of aggression from the Criminal Code of Ukraine. It is possible that appropriate amendments will be introduced concerning the leadership element of the person committing this crime, and its criteria may be somewhat expanded. However, this will not deprive us of the possibility, at the national level, to bring such individuals to criminal liability for the crime of aggression.
As to whether the formation of the Special Tribunal will be halted. I believe this will not happen, since the President’s Peace Formula itself provides for fair punishment of war criminals and those who unleashed the war.
– In speaking with investigators who are investigating war crimes, I noticed they worry that people will reproach them for the fact that war criminals are not in prison. Because even though they identify them, courts issue verdicts, all of this takes place in absentia. In your view, how many years must pass before war criminals actually end up behind bars?
– I think the question is not how many years must pass, but whether there are real opportunities to bring these individuals to justice. Such opportunities could arise even tomorrow. If we are talking about war crimes committed by privates, officers, or sergeants of the Russian army, there are cases when such individuals are captured, and judicial proceedings concerning them take place in full procedure. That is, with their presence in court, with the possibility to state their position, to defend themselves, both personally and with the assistance of defense attorneys.
If we are talking about victims of this category of crimes, I personally know of many cases when it is important for a person to be heard, to have the opportunity to testify in court so that this is formally recorded. After all, it is a matter of the right to justice. Therefore, for the victim it is important to obtain a court ruling confirming that a particular crime was committed against them.
I understand the investigators, because prosecutors who communicate with victims and witnesses of these crimes experience the same feelings. But we are not postponing anything in time: we collect evidence, submit it to the court so it can examine it, provide an assessment, and qualify a given event as a war crime or establish that no war crime occurred.
– People say that when the Russians entered Kyiv region, they did not immediately begin killing the local population. It seemed as if they expected to be welcomed. There were also accounts of notebooks being found with instructions on how to interact with civilians,something like guidelines. What happened later, we all know. Analyzing the evidence collected from this period of Russia’s presence in Ukraine, has it been possible to establish what orders they actually received regarding the treatment of civilians? When were they told that people had to be killed on a mass scale?
– Testimonies have already been collected from thousands of Russian prisoners of war, as well as from civilian victims and witnesses who lived under occupation and directly saw how everything unfolded. We also have a body of captured documentation. These are staff papers from the military command bodies of the Armed Forces of the Russian Federation and other military formations involved in the invasion of Ukraine.
Analyzing all this together, we can see that the Russians were counting on a "quick" war. For example, prisoners of war recount that on the eve of the invasion, they were told they were to cross into Ukrainian territory, "go green," drive to Kyiv, stay there until the government changed, and then return.
Information from the captured documents reflects a similar scenario that the Russian Federation had planned for itself.
Thus, if we take February 24, 2022, as the starting point, then by the third day, according to the Russian Federation’s plans, Kyiv was supposed to be seized.
The Russians’ huge miscalculation at the start of the invasion was that they did not anticipate resistance.
The supplies provided to the first units that entered our territory, food stocks, ammunition, were calculated for only a short period of time. And if we look across the whole country at how the enemy advanced, how it pushed deeper into Ukraine, we see that it moved in columns. Certain settlements were not even captured. They bypassed them and kept moving toward Kyiv. For example, Chernihiv was encircled, and then the troops moved further toward the capital. The same situation occurred in Sumy region, where columns of equipment advanced toward Kyiv.
By putting together the captured documents and the testimonies of prisoners of war, we were able to reconstruct what we call the story of the first days of Russia’s invasion of Ukraine, to understand their plan. The Russians’ initial plan was for a quick victory, a change of government, and a parade on Khreshchatyk.
– And then they realized it would not be easy and began killing? Did they receive orders?
– As far as we can see, including from the testimonies of prisoners of war obtained during the pre-trial investigation, the Russians, confronted with resistance, including from the civilian population, understood that things would not go according to plan. For example, one prisoner recounted: "We stop civilians at checkpoints, take away their mobile phones, and in almost half of them we find information showing that the citizen is in one way or another helping the Defense Forces, transmitting coordinates, reporting on the movement of equipment through settlements, on its numbers, on the personnel, and so on."
Credit must be given to law enforcement agencies and the Defense Forces, which, from the very first days, were organized and established channels for receiving this information. When the Defense Forces have data on the size and composition of the enemy, it is easier for them to plan fire strikes, identify command posts and communication hubs. And that is why the first weeks of the invasion were so painful for the Russians, as they suffered heavy losses in manpower and equipment. There were large numbers of wounded and killed. They lacked provisions, weapons, and so forth.
The combat journals of some Russian army units, found among the captured documents, show that in the first three days of the invasion, certain units lost 20–30% of their personnel.
We believe this played a role in why the killings of civilians began. They came to be regarded by the enemy as a threat.
Since the killings of civilians began almost simultaneously across the entire Kyiv region, where different units of the Armed Forces of the Russian Federation were deployed, this provides grounds to believe that they received a corresponding order. An army, including the Russian army, is built on the principle of unity of command. An order that is issued must be executed. If the same order is being carried out by different brigades, by different servicemen, then it means that order was issued at a high level. And we are now working precisely on building major criminal proceedings on the basis of command responsibility. Command responsibility is an interesting construct, which stipulates that a military commander, knowing that his subordinates are planning to commit a crime, must prevent it. If he fails to do so, he is a participant.
Likewise, if a commander learns after the fact that his subordinates have committed a crime and takes no measures to hold them accountable, he also bears responsibility for the crimes committed by his subordinates.
We see that crimes were committed right up until the retreat of the Russian army from the territory of Kyiv region. Accordingly, the commission of such crimes had a massive and systemic character. This gives us grounds to state that there are signs of command responsibility at the highest military command level, which was at least responsible for commanding the grouping of forces operating in Kyiv region. In this case, it was the commander of the Eastern Military District, General Chaiko.
But the investigation is still ongoing, we are still collecting evidence and will continue to analyze it.
We involve specialists with military service experience in analyzing this evidence. An interdepartmental working group has been created at the Office of the Prosecutor General. It includes active and former servicemen of the Armed Forces of Ukraine, who help us analyze captured documents, determine decision-making algorithms, and the chain of command for issuing orders. They help us understand how the Russian military machine operates and how it could potentially act in the future. The information they provide is used in criminal proceedings during the investigation. We can then order the appropriate forensic examinations to determine whether the conclusions provided by the specialists are correct. Only in conjunction with other evidence is the relevant decision made.
Incidentally, we have an interesting experience in holding one serviceman of the command staff accountable for command responsibility in the territory of Bucha. When we analyzed the crimes committed there over a certain period of time and mapped them, we saw several clusters where crimes were concentrated. We then began to investigate what exactly was in that area and why so many civilians were killed there. Again, by analyzing witness testimony, information received from the Defense Forces, and intelligence data, we established that these crimes were committed around a checkpoint that had been established in the city of Bucha. With the help of eyewitnesses and information from open sources, we were able to identify the person responsible for the service of the troops manning that checkpoint.
We did not have direct evidence that this serviceman himself committed crimes, but under the principle of command responsibility, after investigating dozens of war crimes committed in that area, we were able to prove that he was aware of the crimes committed by his subordinates. Under the principle of command responsibility, he was served with a notice of suspicion.
This approach will be scaled up. But it is a lengthy process, because there are an enormous number of such crimes. All of them must be analyzed carefully so as not to make mistakes. We do not want to hold someone formally liable for actions they did not commit. We want to establish the truth in the investigation. And only then bring the person actually guilty of committing the crime to justice.
"AS PART OF THE EXCHANGE OF BODIES WITH THE MARKING ‘TAGANROG PRE-TRIAL DETENTION CENTER NO. 2,’ THREE BODIES WERE RETURNED"
– Recently, a suspicion was served to the head of Taganrog Pre-Trial Detention Center No. 2, where journalist Viktoriia Roshchyna, who was killed in captivity, had been held. Former detainees returned in exchanges describe to journalists systematic torture in this facility. They say it is one of the most dreadful places of detention. Have other victims from those held in Taganrog Detention Center been identified?
– We have questioned, as victims, 707 servicemen who were in captivity of the aggressor state and held in Taganrog Detention Center No. 2. Of these, 410 were kept in this facility for 14 days or longer.
Out of the 707 questioned, 617 victims stated that physical violence had been used against them while held in this detention center.
And as part of the exchange of bodies with the marking "Taganrog Detention Center No. 2," three bodies were returned.
– Why do you think the Russians keep so many Ukrainian civilians in places of detention? They are constantly detaining and torturing people. We are talking about thousands…
– To have leverage in the exchange process.
– But they almost never return civilians.
– That is an interesting question. One can look at the grounds on which these people are detained. Many detainees are, for some reason, regarded by Russia as combatants. For example, former participants of the Anti-Terrorist Operation who were not engaged in hostilities during the full-scale invasion, but were simply captured after the occupation of territories by Russian troops. Russia considers them combatants and holds them as prisoners of war.
Some civilians are held under the charge of "Countering the Special Military Operation," thereby violating every norm of international humanitarian law. Most likely, Russia fears conscious Ukrainians on its territory.
This is confirmed by recent decrees and regulatory decisions adopted by the leadership of the Russian Federation stating that non-citizens of Russia must leave the territory occupied by Russia. Because for them, such people are a reminder that this is Ukrainian territory, that conscious Ukrainians live there who can resist the occupiers. Russia fears manifestations of national consciousness that do not fit into the narrative of propaganda broadcast by Russian television, that people in Ukraine were waiting for them.
– Are journalists held as civilians or as combatants?
– As far as we know from the case materials, journalists are being held as civilians.
– Do you keep separate statistics on crimes committed against journalists during the full-scale war?
– Since February 24, 2022, investigations have established the deaths of 65 journalists, including 8 foreign journalists. Another 46 sustained injuries, including 25 foreign journalists. In addition, 16 journalists have been unlawfully detained or deprived of liberty, 2 remain in captivity, and 1 is missing.
Looking at Russia’s patterns of behavior in the occupied territories since 2014, we see that those targeted by their law enforcement and security services are precisely the people who report information, including from occupation, that contradicts the official position of the Russian Federation.
There were cases when, for example, in 2015, a person who entered a store, simply photographed food prices, and posted them on social media, was detained on the grounds of allegedly discrediting the "values and traditions" Russia was promoting on television. When someone’s stance contradicts Russia’s official position, that person falls under the repressive machine.
– Are criminal cases opened against journalists the same way as against military personnel?
– Criminal proceedings are indeed opened against journalists. If we speak about the period before the full-scale invasion, the grounds were such fabricated charges as treason under the so-called "DPR" and "LPR" statutes, transmission of information, or espionage allegedly in favor of Ukrainian intelligence services.
– And how does it happen during a full-scale war? Are journalists formally charged with anything, or are they simply held for years without even fabricated cases?
– In most cases, we do not know whether they are formally charged or not. We can only establish this from the testimonies of people who were held with them in places of detention and later returned in exchanges. If someone tells us, for example, that their acquaintance, who is a journalist, was taken to court hearings, interrogated, and said that proceedings had been opened against him, of course, we record this. We investigate such facts, including violations of the right to a fair trial. And this does not apply only to journalists.
There have even been absurd situations where our servicemen, detained by Russia in the Kursk region, were accused of terrorist activity. Yet they are combatants carrying out missions assigned by the state. This is 100% a violation of the right to a fair trial. And such facts do not go unnoticed.
"MERCENARIES MUST RECEIVE HIGHER REMUNERATION THAN SERVICEMEN OF THE REGULAR ARMY OF A PARTY TO THE CONFLICT"
– Concerning the military, they open a large number of criminal cases, issue verdicts, and do so on the basis of fabricated charges and falsified evidence. Why don’t we open criminal proceedings against Russian servicemen? They came to our land with weapons, violating our sovereignty. Perhaps we would have stronger positions in exchange negotiations if there were more verdicts.
– There must be standards that we adhere to, including international humanitarian law. We cannot become a mirror image of the enemy, stooping to their level.
– I am not suggesting stooping to their level, where the cases are falsified. But surely our criminal law provides grounds to bring them to justice? It was not us who started all this, not us who are occupying territories and terrorizing civilians.
– This question was answered after the Second World War, when the immunity of combatants was enshrined in international treaties. A soldier who carries out an order cannot be held responsible merely for invading another country with a weapon in hand. Except in cases where he commits war crimes. If a person commits war crimes, there is no forgiveness. Everything else is covered by combatant immunity, which is why we cannot hold servicemen of the Armed Forces of the Russian Federation criminally liable simply for violating our territorial integrity and sovereignty, since this is provided for in the relevant legal instruments.
– Alongside Russians, foreigners are fighting. For example, military personnel from North Korea. The Criminal Code contains an article on "Mercenarism." Why are criminal proceedings not opened in such cases, and why do we simply hand over such individuals during exchanges?
– Mercenarism is a rather complex crime to prove. First, a mercenary cannot be a citizen of a party to the conflict. Therefore, all individuals who are citizens of the Russian Federation are not mercenaries. Second, a mercenary cannot be a member of the regular army of a party to the conflict. Accordingly, if a foreign national is serving under contract in the Armed Forces of the Russian Federation, he is not considered a mercenary. In Ukraine as well, foreigners fight. But as servicemen of the Armed Forces of Ukraine, defending our country against Russian aggression.
And perhaps the most difficult element to prove is the fact that mercenaries must receive higher remuneration than servicemen of the regular army of a party to the conflict. Accordingly, we would need to prove that a citizen of another country, not Russia, who is not a serviceman of the Russian Armed Forces, went to fight for the aggressor state and is receiving higher remuneration than a Russian serviceman holding the same position.
– Are North Korean soldiers officially considered servicemen of the Russian Federation?
– No, they are not listed as part of Russia’s armed forces, but they were sent by their own state to take part in the armed conflict. In such a case, they do not have the status of mercenaries.
This issue is more relevant in the context of the crime of aggression, since responsibility for such a crime may rest not only with representatives of the Russian authorities, but also with representatives of the North Korean authorities, if their armed forces are taking part in aggression against Ukraine.
– Are there, in general, criminal proceedings that concern mercenaries fighting on Russia’s side?
– Such proceedings exist; they are being investigated on factual grounds. But the subject of inquiry in them, as I have already said, includes all these circumstances that must be established.
There are proceedings of another category. As in some countries, participation of their citizens in an armed conflict on the territory of another state is prohibited. For example, Kazakhstan. There, if I am not mistaken, around 50 convictions were handed down against their citizens for fighting on the side of the Russian Federation in Ukraine. But that was before the full-scale invasion.
In addition, the National Police and the Office of the Prosecutor General, together with the Moldovan police, carried out Operation Avengers. Citizens of Moldova who fought on Russia’s side within the Wagner Group or as part of the regular Russian Armed Forces were identified. Some of these individuals have already been charged in Moldova for participation in an armed conflict on the territory of another state.
Everything depends on the national legislation of the country of which a person is a citizen.
– This spring, the Helsinki District Court sentenced 38-year-old commander of the Rusich group, Voislav Torden (Yan Petrovsky), to life imprisonment for war crimes committed in Ukraine in 2014. In such cases, is Ukraine’s position requested, and do law enforcement agencies of other states cooperate with the Office of the Prosecutor General?
– In the context of cooperation with our partners and colleagues from other countries, the experience of working with law enforcement agencies of European states and the United States has been particularly interesting and useful.
In Petrovsky’s case, we became convinced, first of all, that we are capable of collecting evidence at a proper level that can be used in the jurisdictions of other countries. And our partners became convinced that our law enforcement agencies can be trusted, that we do our work no worse than they do. And in some cases even more promptly.
As for Petrovsky, he had long been known to us. Back in 2015, he was served with a notice of suspicion and put on the wanted list. However, since Finland had concerns regarding the conditions of his detention and the serving of punishment in Ukraine, his extradition was denied. As a result, Finland was obliged to initiate its own investigation. Within this investigation, Finnish prosecutors and investigators came to Ukraine, and in cooperation with our investigators and prosecutors a series of investigative actions were carried out.
The crime took place almost nine years ago, yet it was possible to find witnesses and victims, question them, and conduct additional forensic medical examinations. The results of the investigation conducted by Ukrainian law enforcement were transmitted to Finland, and subsequently the testimony of witnesses and victims was ensured in court. This coordination delivered results.
Such cases are not isolated, we cooperate with law enforcement agencies of various countries.
Tetiana Bodnia, Censor.NET
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In the second part of the interview, read about the investigation of high-profile war crimes—the terrorist attack in Olenivka and the destruction of the Kakhovka Hydroelectric Power Plant, the killing of Oleksandr Matsievskyi and the executions of other Ukrainian servicemen, as well as how the Russians "profit" from Ukrainian coal by committing war crimes and destroying the environment.
