Last month, Vadim Shishimarin, a 21-year-old Russian soldier, was jailed for life. His sentence marked the first successful war-crimes prosecution since the conflict in Ukraine began.
On the fourth day of the invasion, after coming under fire, Shishimarin and four other soldiers hijacked a car and drove around looking for other units to join. They stopped in the north-eastern village of Chupakhivka where they came across 62-year-old Oleksandr Shelipov. Fearing he might share their location, Shishimarin shot him.
Captured by Ukrainian troops, Shishimarin pleaded guilty in court, but said he was acting on orders. Shelipov’s widow was in court and addressed the killer directly: ‘Tell me please, why did you [Russians] come here? To protect us? Did you protect me from my husband, whom you killed?’
The trial was the start of an historic exercise: the prosecution of war crimes while the war is going on, with a timetable faster than most countries manage during peace. The aim is not just to bring war criminals to justice. It’s also to put the fear of conviction into the minds of Russians occupying the east of Ukraine – to emphasise that in the smartphone age atrocities are easily recorded and crimes can be made public. Even wrongdoers who escape back to Russia will know that their names and the evidence against them will be published digitally.
Iryna Venediktova, Ukraine’s prosecutor–general, is leading the investigations. She’s using Ukrainian courts (the International Criminal Court takes longer and isn’t recognised by Russia or the US) and has to demonstrate to the wider world that the prosecutions aren’t stunts or show trials. To do this, she is receiving help from the UK, which is dispatching war-crime experts, and may also send police detectives to gather evidence to an international standard. There is also an attempt to co-ordinate British, US and EU help through the new Atrocity Crimes Advisory Group, which has pledged to offer operational support in collecting and securing evidence, providing legal expertise and investigating sexual violence.
I meet with Venediktova during her trip to London to see Suella Braverman, the attorney–general for England and Wales. When an alarm goes off during the interview, Venediktova remarks that it makes her feel more at home: ‘When we hear this, we should go to bomb shelter! We should run.’
She tells me Ukraine’s war-crime investigators were getting ready months before the invasion: ‘When the war started, I was shocked – but as a prosecutor-general, I was prepared.’ She points to how the trial of Shishimarin received global coverage. ‘We had70 cameras [in the courtroom] and all types of media,’ she says. ‘When Russian soldiers understand that we can show these crimes to the whole planet then maybe they will think twice about killing, raping or torturing civilians. They will be scared to do it.’
After Russian troops withdrew from the Kyiv region in April the scale of crimes committed became apparent. There was evidence of mass civilian executions and accounts of sexual violence. Forty-one cases of alleged rape are being examined, 25 of which took place in one building. ‘What we saw were such cruel atrocities because [the soldiers] decided that they would be unpunished, that they would have immunity,’ Venediktova tells me. ‘I hope that we can save the lives of civilians in our occupied territories. But nobody knows what other atrocities we will find when they have been de-occupied.
‘We have tried to be unemotional, absolutely objective,’ she says. ‘It is very important to have my international colleagues with me on the ground. I remember that our international investigators, experts, prosecutors will see everything we are doing. That’s why I want to be fair. I want to be professional. I want to do everything under the standards of our legislation and of international humanitarian law.’
While the Geneva Conventions don’t really define war crimes, the UN says intention must be clear (collateral damage does not count). Current trials in the Ukrainian courts range from soldiers accused of shooting local civilians to those accused of shelling civilian structures in the region around Kharkiv – Venediktova’s hometown. Not all evidence will be usable. ‘Videos, photos, descriptions from people: our prosecutors sort all this information because for us it is important to have acceptable evidence and we see what we can use,’ she says. Much of the evidence is submitted on the internet, through a government online forum called Common Help, and investigators also use material evidence in cases such as those of torture and rape.
The bulk of Russian soldiers won’t be tried in person, since few of the suspects are in detention. ‘We have two suspects accused of raping three women. When we are ready to start the court proceedings we will do it in absentia,’ she says. CCTV means that even after soldiers have left the country, it is possible to identify them. ‘If we speak about the wars in Yugoslavia and elsewhere, we didn’t have such technical possibilities but now we do,’ she explains.
How much blame should be laid at the doors of one soldier? In the case of Vadim Shishimarin, it could be argued that he was a young man following orders. Venediktova gives this argument short shrift. ‘He killed with a very cold heart. Under our criminal code this is a crime. So could we prove it or not? We could prove it. A person committed the crime, he is responsible, he is sentenced. I think it is an absolutely fair position.’ While she is pleased about Shishimarin’s sentence, ‘it is only the beginning for 10,000 cases’.
Yet she accepts that the ultimate goal is to prosecute those really calling the shots. ‘We mentioned ordinary soldiers who killed civilians, but we also have the people who gave orders to start this round of aggression: to come to your neighbour, to destroy the state, to kill Ukrainians because you want this territory. Of course, that is a huge crime, and those behind it should be held responsible.’
In Britain and America, politicians are careful not to refer to Putin as a ‘war criminal’ so as to leave open the prospect that he could end the war and then be able to live in peace, rather than being arrested if he ever steps outside Russia. Venediktova, who keeps a Russian cluster-bomb casing found in Kherson on her desk, is less squeamish. She calls Putin ‘the main war criminal of the 21st century’ and talks wistfully about his day in court. ‘While he is president, we cannot prosecute him. He has functional immunity. But we can collect evidence against him. That’s why we do our job now and maybe he will not be president for ever. But how they can arrest him and take to the Hague – nobody knows.’
Do these trials risk retaliatory action? In the days after we met, two British fighters captured by Russian forces in Ukraine were sentenced to death after a trial in the separatist Donetsk People’s Republic. UK politicians have called it a show trial, while Ukraine’s Defence Ministry and its Main Directorate of Intelligence (which deal with the exchange of prisoners) say they are taking all ‘necessary measures’ to ensure the Britons’ safety. Russian investigators claim they have opened more than 1,100 cases into ‘crimes against peace’ – which could see a mass trial of hundreds of captured Ukrainian soldiers. Prisoner swaps are likely to follow. Oleksandr Shelipov’s widow has even said she wouldn’t object if Shishimarin was released as part of a swap to get ‘our boys’ to safety.
Venediktova appears uncomfortable when asked what would happen if the Russians tried to negotiate immunity as part of a ceasefire deal. ‘It is very difficult to answer political questions,’ she says. She then cites a particularly harrowing case she has witnessed in her work: a grave that held the burned remains of a mother and two children who still haven’t been identified. ‘When we have nearly 5,000 murdered civilians, more than 200 murdered children, how we can close the cases? It’s impossible.
‘Again, I am a prosecutor and, in the war, we have the exhumation of the mass graves,’ she explains. ‘When you see all these bodies inside – and it’s not only one time, it is day after day; when you exhume a grave of a mother burned completely with a 14-year-old kid and an eight-year-old kid, it’s impossible to forget, it’s impossible to forgive. We have only their bones and that’s why I will do my job as a prosecutor. I want to identify them and I want to find the people who burned them.’
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