Investigation Of War Crimes Research Articles

THE ROLE OF DIGITAL TECHNOLOGIES IN THE INVESTIGATION OF WAR CRIMES IN UKRAINE: CRIMINALISTIC PROBLEMS

The article is devoted to the study of current problems of the use of digital technologies in the investigation of war crimes in Ukraine. The emergence and formation of new areas of criminalistics due to scientific and technical progress, the introduction of the latest digital technologies and tools of digital criminalistics are substantiated. It is noted that it is important to take into account the modern trends in the development of forensics related to the formation of its separate branches (directions): medical, genotoscopic, aerospace, nuclear, digital and military criminalistics. In the conditions of the war in Ukraine, the problems of researching digital technologies in the investigation of war crimes and improving criminalistic methods and means of combating crime in Ukraine in modern conditions are gaining special relevance. It is substantiated that the process of digitization of criminalistics is a natural stage of development and formation of modern criminalistic knowledge, which involves the introduction of digital technologies in various fields of criminalistic science, forensic expertise and legal practice. At the same time, special attention should be paid to increasing the role of criminalistic didactics, in particular, forensic training of investigators, prosecutors, courts, detectives, criminalistic investigators, criminalistic experts in the field of digital technologies. The most urgent and promising problems of the study of the problems of digital technologies in the investigation of war crimes are highlighted.

Technical and forensic support for the investigation of war crimes: Concept, purpose, individual areas of development

The relevance of this study is conditioned upon the need to investigate the technical and forensic support for the investigation of war crimes that are massively committed in the context of a full-scale military invasion of russia on the territory of Ukraine. The purpose of this study was to define the term “technical and forensic support for the investigation of war crimes”, its purpose and components; to consider the technical equipment used to search for people who disappeared during the war, to identify hidden corpses of people who died during the war, to establish their identity. The study employed a set of scientific methods: terminological, system-structural, formal logical, comparative legal. The terms “technical and forensic support” and “technical and forensic means” were analysed, and the definition of technical and forensic support for war crimes was proposed. The following components of technical and forensic support were investigated: scientific, legal, organizational, educational and methodological, scientific and technical, material and technical support. Attention was drawn to the specific features of technical and forensic support for the investigation of war crimes: constant readiness of authorized entities to use technical means and methods; integrated use of technological systems; involvement of numerous information resources; coordination of work on technical equipment of law enforcement agencies with the provision of other departments, including the Armed Forces of Ukraine. The study focuses on the possibility of using technical and forensic support for the investigation of war crimes by security investigators together with National Police investigators. It was concluded that the technical and forensic support for the investigation of crimes includes a system of legal, scientific, organizational measures aimed at the effective use of technical means and their corresponding methods for investigating criminal offences. Promising areas of development of technical and forensic support for the investigation of war crimes are as follows: the use of drone-made evidence (aerial photography); the use of ground-based 3D scanning; the introduction of systems for detecting and visualizing biological traces of participants in war crimes and their victims; the development of identification and search engines for identifying people involved in the commission of war crimes on the territory of Ukraine

AUTHORIZED SUBJECTS OF WAR CRIMES INVESTIGATIONS IN UKRAINE: CRIMINAL PROCEDURAL ASPECT RELATED TO THE ISSUES OF PROVING GUILT IN CRIMINAL CASES

The article deals with the issue of significance of applying legal categories and concepts in strict accordance with their actual legal content, without adding emotional layers and expanding their importance due to the extraordinary military conditions. In particular, it should be noted that such trend is considered extremely detrimental to the process of pre-trial investigation in criminal proceedings regarding war crimes. Namely, it is stated as a fact that the general public in Ukraine is involved in activities connected with identifying, recording and collecting evidence of war crimes. In this way, a false public opinion is formed that every citizen, in an individual way, as well as through a network of organizations created on a state or public basis, is considered a subject of collecting evidence of war crimes in Ukraine related to the armed aggression of the Russian Federation. Instead, it is emphasized that in the area of criminal procedure, the «subjects of investigation» in such criminal proceedings, as in any other proceedings, are only specially authorized subjects that are persons who have the status of a subject responsible for collecting evidence taking into consideration their professional knowledge, official duties and authorities. It is stressed that this issue is of exceptional importance due to the requirements of the procedural format regarding the adequacy of evidence, since the identified, recorded and collected information about war crimes in Ukraine by a private citizen, transferred to volunteer NGOs is not considered evidence, since it is assumed that the evidence is also an appropriate status of data or information that testifies to the quality, reliability and procedural character of the activities performed to obtain them. On the basis of this, attention should be drawn to the fundamental issue of the interdependence of the authorized subjects who collect evidence of war crimes in Ukraine and the adequacy of evidence that impacts the efficiency of pre-trial investigation, the quality of court decisions and the indicator of justice and legality of justice in the country. At the same time, it should be specified that the call for strict compliance with the requirements of the procedural form regarding the subject composition of the process of war crimes evidence collection in Ukraine does not mean diminishing the activities of the private and public community, but it should be noted that this activity has different historical value, significance and purpose not related to criminal proceedings regarding war crimes. It should be summarized that the arbitrary use of legal categories and concepts, unjustified expansion of their content, do not provide for ensuring the quality of pre-trial investigation of war crimes and create a false idea in society about the criminal procedural activities of state bodies, which adversely affects the process of raising the level of legal culture of the citizens of Ukraine. Key words: war crimes, subjects of investigation, subjects of gathering and fixing evidence, parties to criminal proceedings, admissibility of evidence.

MILITARY JUSTICE OF UKRAINE: PROBLEMS OF DETERMINING THE BODIES THAT GOVERN THE CONSTRUCTION OF ITS SYSTEM

The article focuses on the current issue of creating a military justice system for modern law enforcement practice. Based on the idea of military justice as a system of bodies, its composition, in the authors' opinion, should include: (1) the body that carries out the pre-trial investigation and/or supports law and order; (2) the body which oversees legality; (3) military courts. In the article, the authors consider the genesis of the functioning of each of the bodies mentioned above, which, in their opinion, should be part of the military justice system, and emphasize that the idea of creating a system of military justice in this completed form was constantly discussed among scientists and practitioners. However, after Russia's armed aggression against Ukraine began, it ceased to be an idea and should be implemented soon. Considering proposals for the creation of a pre-trial investigation body, which should investigate criminal offences committed by military personnel or other persons belonging to the armed formations as the first stage in the system of criminal justice bodies, the authors give a list of existing risks, which, in particular, include their subordination, which should not affect the independence and impartiality of the investigation. Despite some turbulence in the legislative regulation of the work of the military prosecutor's office in Ukraine, this body, with different names, structural construction, subordination and staffing for a long time, in accordance with the system of the law, carried out the pre-trial investigation of war crimes, supervision over the legality of pre-trial investigation bodies and procedural management of the investigation. Particular attention in the article is paid to arguments supporting the opinion on creating a system of military courts. The reasoning is strengthened by the appeal to the Memorandum of the Council of Europe on military courts and the experience of the functioning of military justice in Switzerland, Poland and Spain.

The limits of discretion in the investigation and prosecution of war crimes at the international level: The Mavi Marmara saga

The article deals with the basic criteria involved in the selection of situations to be investigated and cases to be prosecuted before the International Criminal Court. These are examined in light of the goals of international criminal justice and the structural and evidentiary difficulties encountered by judicial mechanisms of international mission and composition. The analysis focuses on the limits of prosecutorial discretion at the level of international criminal justice. The Mavi Marmaraship incident is used hereto as a key point of reference.

Проблеми використання спеціальних знань у кримінальному провадженні в умовах воєнного стану в Україні

The army of the Russian Federation brought to Ukraine the massacres of civilians, the destruction of infrastructureand dwellings of citizens, the rape of women and children, and looting. The guilt of the representatives of the Russian authorities and the military army of the Russian Federation must be proved by investigating a large number of war crimes,and the collection of procedural evidence involves a huge number of forensic examinations.Based on the analysis of the tasks of various types of forensic examinations, the article establishes that forensicexaminations play an important role in the investigation of war crimes. Based on the results of a critical analysis of thenorms of the current legislation of Ukraine, which regulate the processes of collecting evidence and attracting an expert,it has been proved that in the conditions of martial law in Ukraine, it is extremely difficult to obtain an expert opinion.The publication analyzes the procedure for attracting an expert in the member countries of the Council of Europeand proposes to reform the system of expert provision of justice by abolishing the monopoly of state expert institutions onconducting a significant number of forensic examinations in Ukraine and introducing the responsibility of an expert fora biased opinion (similar to the member countries of the Council of Europe). This will reduce the time of examinationsand increase their reliability.It is proposed to reform the system of expert justice support in Ukraine under martial law in the following areas:1) abolition of the monopoly of state expert institutions on all types of forensic examinations, except for the study of objectswhose free circulation is prohibited or restricted; 2) granting the right to the parties to criminal proceedings, the victimand the court to choose the most qualified (state or private) expert, regardless of whether he is listed in the Register ofcertified forensic experts;3) imposing sanctions against a forensic expert in case of violation of his professional duties(confiscation of payment for the examination, disqualification as an expert, administrative fine or arrest, criminalprosecution, disciplinary consequences or claims for damages), etc.

ДЕРЖАВНЕ БЮРО РОЗСЛІДУВАНЬ ТА МАЙБУТНЯ ВІЙСЬКОВА ПОЛІЦІЯ ЯК СУБ’ЄКТИ РОЗСЛІДУВАННЯ ВІЙСЬКОВИХ КРИМІНАЛЬНИХ ПРАВОПОРУШЕНЬ

At all stages of Ukraine’s development, the system of investigation of criminal offenses was one of the attributes of ensuring the rule of law in the state. Among this, the system of investigations of military criminal offenses in the Armed Forces of Ukraine (hereinafter – the AF of Ukraine) is not an exception. In the context of the Russian Federation’s military aggression against Ukraine and its integration into NATO, this issue is becoming more significant. It should be noted that there is an urgent need to reform such a major military law enforcement agency as the Military Law Enforcement Service of the Armed Forces of Ukraine, which does not meet modern NATO standards, the member of which Ukraine plans to become in the nearest future, into a new Military Police that will investigate military criminal offenses together with the State Bureau of Investigations. Based on the above, we will review the activities of the State Bureau of Investigations and the Military Police, which will be established in the nearest future on the basis of the existing Military Law Enforcement Service of the Armed Forces of Ukraine as the main subjects of investigation of military criminal offenses. To this date, in connection with the possibility of creating a Military Police in Ukraine we should: adopt amendments to the Criminal Code of Ukraine, which provide for the classification of certain crimes under Articles 402, 403, 405, 406, 407, 408, 409, etc., to criminal offenses; to determine the powers of the Military Police to conduct a pre-trial investigation in the form of investigation of criminal offenses committed by servicemen, civil servants of military formations, and to leave the powers to investigate war crimes and crimes in the military sphere (the latter include various encroachments on the military-industrial complex) for the State Bureau of Investigations; to refer to the jurisdiction of the Military Police certain components of criminal offenses, in addition to Article 422 of the Criminal Code of Ukraine, committed by servicemen, sergeants and junior officers, and civil servants of military formations, whose positions belong to “B” category [6]. At the same time, it is necessary for the investigators of the State Bureau of Investigations to provide the pre-trial investigation of war crimes and crimes in the military sphere committed by the commanders of military units, heads of enterprises, institutions and organizations under the Ministry of Defense of Ukraine, the Armed Forces of Ukraine and other military formations created according to the laws of Ukraine, by servicemen of field and high-ranking military officers, civil servants of the Armed Forces of Ukraine and other military formations, whose positions are classified as “A” and “B” ones, as well as committed by servicemen of military law enforcement agencies.

Features of detection and obtaining evidence of war crimes committed in the context of international armed conflict

The scientific article is devoted to a comprehensive understanding of international legal, procedural, and organizational problems of investigation of war crimes committed during the military conflict in the south and east of Ukraine. It develops the author's concept of investigation of war crimes committed during the armed conflict, scientifically substantiated theoretical provisions and specific patterns that are manifested in the field of legal support, organization of investigation, collection of evidence, methods of investigation of crimes of this type. It is concluded that there is a need to specify the components of war crimes in national legislation. Recommendations for further improvement of criminal and criminal procedure legislation of Ukraine in order to fulfill the state's international obligations in the field of international humanitarian law are given.

Weapons of War, Tools of Justice

Abstract Just as the internal combustion engine revolutionized warfare in the early twentieth century, artificial intelligence is shaping warfare in the Digital Age. Fuelled by data rather than gasoline, artificial intelligence (AI) derivative technologies are driven by innovation in both the military and civilian sectors. Today’s defence scientists and engineers, like their predecessors, develop physical equipment and weapons, but instead of simply making them more powerful and lethal, they are also making them more intelligent and connected. As AI is increasingly integrated into military tools, the digital footprints of modern battlefields will grow exponentially, generating new sources and types of data that will fundamentally alter war crimes investigations. This article examines emerging military applications of AI in order to identify what opportunities and challenges these tools might offer international criminal investigators. Will more sensors and smart devices on the battlefield benefit or burden the investigation of war crimes? Moreover, will intelligent machines add to the fog of war or help us see through it?

Prosecutorial oversight of the rule of law during the investigation of war crimes

The article is devoted to the activities of the prosecutor's office in the military sphere. The historical aspects of the formation of the prosecutor's office were noted in the work. The issue of reorganization of the prosecutor's office in relation to its activities in the military sphere, which is reflected in the liquidation of military prosecutor's offices, was also studied and covered. The Prosecutor's Office of Ukraine is the only centralized system entrusted with the performance of functions aimed at ensuring legality. The procedure for performing these functions must clearly comply with the law and the basic principles of the prosecutor's office. The role of the prosecutor's office is extremely important, because it is an effective tool for strengthening the rule of law, which determined the development of the rule of law. The activities of the prosecutor's office in the military sphere are extremely important, especially given the difficult political situation in Ukraine. In the context of armed conflict, the number of war crimes, which have always been investigated by military prosecutors, is growing significantly. All security and defense reforms must take into account the situation in Ukraine, in particular, taking into account the existing military threats from Russia. Occupation of Luhansk and Donetsk regions, annexation of Crimea, armed aggression of the Russian Federation, sabotage and reconnaissance activities, accumulation of military formations near the border of Ukraine - all these are urgent threats to the defense and national security of Ukraine. A number of arguments were presented that prove the inexpediency of such a reorganization. The international experience on the example of the leading countries of the world, such as the USA, Israel, Great Britain is researched and analyzed. Based on this analysis, the importance of the existence of a specialized body responsible for overseeing the rule of law in military formations and the investigation of crimes in the military sphere was proved. It has been proven that war crimes should be investigated by specialized bodies with experienced and qualified personnel, as the offenses committed by servicemen are specific and require a specific approach to their investigation.

The Messy Little Thing Called Peace: Postwar Memories and Durable Disorder in El Salvador

We argue that present-day El Salvador is still enmeshed in a memory struggle over the meanings of the civil war (1980–92). With the United Nations (UN) Truth Commission having failed to address the roots of the civil war and initial postwar amnesty avoiding prosecution and investigation of war crimes, a consensus about the past is yet to be created. Instead, maintaining prewar power constellations and the increased importance of the military make us think of El Salvador as a durable disorder and a low-intensity democracy at best.

War crimes trials and investigations: a multi-disciplinary introduction

War crimes trials and investigations: a multi-disciplinary introduction

Book Review: Historical Origins of International Criminal Law: Volumes 115

This book review examines a five-volume set published by the Torkel Opsahl Academic EPublisher and edited by Morten Bergsmo, Cheah Wui Ling, Yi Ping, Song Tianying, and Klaus Rackwitz. The first three volumes retell the genesis story of international criminal law from stereoscopic perspectives. In addition to new research on Nuremberg and Tokyo, Volume 1 includes some of the less celebratory accounts from the post-WWII period and provides visibility into the hundreds of less salient trials that took place in the European and Pacific theaters before domestic authorities, military tribunals, and people’s courts. Volume 2 of the series presents rich accounts of national efforts at enforcing international criminal law around the world, including trials in China and the then-Soviet Union, where a prolific history of postwar prosecutions belies contemporary reticence about the project of international criminal justice. Contributions by national criminal law experts in Volume 3 reinforce the centrality of complementarity in the ICC system. Volume 4 takes up intersecting questions of criminal procedure and investigative methodologies, such as the use of demographic analysis to prove international crimes and the contributions of fact-finding commissions to accountability exercises. Volume 5 is devoted to the capstone event in the modern history of international criminal law: the establishment of the ICC. This volume contains copies of, or adaptations from, a series of memoranda solicited by the series main editor from a range of experts as the ICC was being created. These contributions track the myriad logistical, strategic, and legal decisions — from the sublime to the mundane — that must be resolved to build and operate an entirely new judicial system virtually from scratch. This final volume also features more praxis-oriented chapters, touching upon best-practice methodologies for war crimes investigations, including evidentiary analysis and forensics, by some of the world’s great international criminal law practitioners. The series will be an essential resource for both academics and practitioners interested in the history of international criminal law as a distinct field and also of the early days of the ICC, the world’s first permanent international criminal court.

International Criminal Court Prosecutor Recommends Investigation of Potential War Crimes in Afghanistan, Including Actions by U.S. Military and Central Intelligence Agency

On November 14, 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) released its annual Report on Preliminary Examination Activities (the Report). The Report contained the OTP's updates on preliminary examinations of several situations, including in Afghanistan. Of particular note, the OTP announced that it had identified a reasonable basis to seek Pre-Trial Chamber authorization for an investigation into allegations of war crimes committed by the United States—primarily from 2003 to 2004, but in some cases as recently as December 2014.

Culture and understanding in the Singapore war crimes trials (1946–1948): interpreting arguments of the defence

Abstract After the Second World War, the British military organised 131 war crimes trials in Singapore, which served as the base for British war crimes investigations in Asia. These trials brought together diverse participants-judges and counsel from the UK, India, and other Allied countries; accused persons from Japan, Korea, and Taiwan; defence counsel from Japan; and witnesses from all over Asia. The majority of defendants in these trials did not deny their involvement in the war crimes concerned; instead, these defendants argued that their conduct was consistent with Japanese norms, beliefs and practices. This article explores trial participants' varied and contested interpretations of the culturally influenced arguments put forward by the defence.

John W. Thompson: Psychiatrist in the Shadow of the Holocaustby WeindlingPaul J.Rochester, N.Y., University of Rochester Press, 2010, 456 pp., $99.00.

John W. Thompson: Psychiatrist in the Shadow of the Holocaustby WeindlingPaul J.Rochester, N.Y., University of Rochester Press, 2010, 456 pp., $99.00.

Nature, Severity and Persistence of Geomorphological Damage Caused by Armed Conflict

AbstractProxy conflicts involving local revolutionaries and external forces during the Cold War years caused major damage to the physical landscapes and soils of South East Asia. Using a series of small case studies, this paper assesses some of these impacts of war on the geodiversity of the Lao PDR, and upon some other environmental values and ecosystem services that are dependent upon physical landforms that host or facilitate them. Satellite imagery and ground‐based surveys indicate that even after nearly four decades, bomb craters remain discernible at densities that commonly exceed 200/km2 and in some cases exceed 800/km2. This landform damage also implies major loss of soil capital, full recovery from which is likely to take millennia. Very significant damage was also caused by military engineering projects. The results of this study confirm the severe, widespread and long‐term nature of the environmental damage that can be inflicted by war. They also demonstrate the potential utility of forensic geomorphology as a tool in the investigation of potential environmental war crimes. Copyright © 2013 John Wiley & Sons, Ltd.

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948

Abstract More than 2,000 international criminal trials were conducted at the end of World War II in addition to those held by the International Military Tribunals (IMTs) at Nuremburg and Tokyo. Fifteen national tribunals conducted these trials in conjunction with an international war crimes commission established by these same states in October 1943 under the name, The United Nations Commission for the Investigation of War Crimes, that soon became the United Nations War Crimes Commission (UNWCC). The extensive work of the UNWCC and these tribunals serves as a source of customary international criminal law that relates directly to the current work of the International Criminal Court and the ad hoc tribunals in operation since the 1990s.

Sources and Documents

Sources and Documents Obrad Kesić Introduction Since the early days of the Dayton Peace Agreement, central issues of dispute have been the authority and powers granted to the two entities (the Republika Srpska and the Bosniak-Croat Federation). Bosniak and Croat politicians and many international politicians and diplomats hold a view that the Dayton Constitution gave the entities too many powers and that this has led to political paralysis, and an inefficient state structure. As a result, the High Representative through the "Bonn Powers" has sought for many years to "correct" this perceived Dayton flaw that has led to the forced or coerced transfer of approximately 68 powers from the entities to the joint state institutions. The government and citizens of the Republika Srpska have seen this as an illegal usurpation of powers and have come to fear that the underlying motive for this has in fact been a desire to create a centralized Bosnia state which would be dominated by state institutions controlled by Bosniaks in Sarajevo. This issue came to a head in 2009-10, when the Republika Srpska Government, with the assistance of American international lawyers, directly challenged the High Representative's use of the Bonn powers, refused to implement his decisions, and moved to re-examine many of the previous decisions made by previous High Representatives. The confrontation has significant implications for future constitutional negotiations within Bosnia and for the international protectorate which has administered the state since 1996. The Republika Srpska government has moved to organize a referendum which would directly involve its citizens in the struggle with the High Representative. The following documents show the basic positions of the two sides of this confrontation and vividly show the significance of the gap that leaves little room for a compromise. [End Page 275] Statement of the Office of the High Representative RS Referendum on Dayton Risks Going Beyond Rule of Law The planned referendum proposed by the SNSD-led RS Government to question elements of the General Framework Agreement for Peace (GFAP, also known as the Dayton Peace Agreement) falls outside the scope of the entity's constitutional competencies, is contrary to its obligations under the constitution of Bosnia and Herzegovina, and, as the High Representative has already made clear, is a violation of the GFAP. The SNSD-led Republika Srpska Government is obliged to respect the Dayton Peace Agreement in its entirety and not challenge actions undertaken on the basis of Dayton and UN Security Council Resolutions adopted under Chapter VII of the United Nations Charter. The SNSD-led government should therefore cease from endangering BiH's international obligations and commitments. By organizing a referendum on these issues, the SNSD is manipulating RS voters to divert attention from the real economic problems facing citizens. Such actions are in defiance of the rule of law and endanger the reputation of the Republika Srpska. During his last visit to Banja Luka the High Representative was clear that "[r]ejection of the most basic principles of the Dayton Peace Agreement as well as standards of international law, means the SNSD is setting the RS on the dangerous path of legal uncertainty." Conclusions and public statements that negate the constitutional order of the country and the legal framework regulating BiH judicial institutions, question cooperation with the ICTY, and deny facts about war crimes proven beyond a reasonable doubt in a court of law, all fly in the face of the rule of law. By resolution of the UN Security Council, all countries are obliged to cooperate with the ICTY, especially Dayton signatories. Article IX on the very first page of the Dayton Agreement obliges the Parties to Dayton to "cooperate fully with all entities involved in implementation of this peace settlement, as described in the Annexes to this Agreement, or which are otherwise authorized by the United Nations Security Council, pursuant to the obligation [End Page 276] of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law." The Steering Board of the Peace Implementation Council has repeatedly underlined that the International Community retains the necessary instruments to counter destructive tendencies and that it will not allow attempts to...

2 SAS Regiment, War Crimes Investigations, and British Intelligence: Intelligence Officials and the Natzweiler Trial

2 SAS Regiment, War Crimes Investigations, and British Intelligence: Intelligence Officials and the Natzweiler Trial