Peace Consulting

European Union: EUROJUST to Collect and Preserve Evidence of War Crimes in Ukraine

By <b><br>Dr Marta Katz-Turi</b>

Dr Marta Katz-Turi

The European Commission has proposed today to amend the EUROJUST Regulation to give the EUROJUST the legal possibility to collect, preserve and share evidence on war crimes. EUROJUST, is an Agency of the European Union for Criminal Justice Cooperation, and is based in The Hague. Its role is to help make Europe a safer place by coordinating the work of national authorities in investigating transnational crime.

Since March, EUROJUST has been supporting an EU joint investigation team looking into the possible war crimes committed in Ukraine. Due to the ongoing conflict in Ukraine, it is difficult to store and preserve evidence securely in Ukraine at the moment. To ensure accountability for the crimes committed in Ukraine, it is crucial to ensure safe storage of evidence outside Ukraine as well as to support the investigations and prosecutions by various European and international judicial authorities. The existing EUROJUST Regulation does not include this prerogative of the Agency, therefore an update is necessary.

Commissioner for Justice, Didier Reynders, said: “Since the start of the Russian invasion, the world has been witnessing the atrocities committed in Bucha, Kramatorsk and other Ukrainian cities. Those responsible for the war crimes in Ukraine must be held accountable. To this end, we must ensure that evidence is safely preserved, analysed and exchanged with national and international authorities, including the International Criminal Court. Today we propose to empower EUROJUST to perform these tasks. Impunity will not be tolerated”.


What does the reinforced mandate of EUROJUST mean?

National authorities are already collecting evidence of possible crimes being committed in Ukraine. Due to the ongoing hostilities, evidence cannot be preserved securely in Ukraine. Thus, it is necessary to set up a central back-up storage, where evidence collected by the agencies of the European Union and bodies as well as national and international authorities or third parties, such as civil society organisations, could be preserved. While the EUROJUST Regulation provides that EUROJUST supports Member States’ action in investigating and prosecuting serious crime, including core international crimes, it does not provide for EUROJUST to preserve such evidence on a more permanent basis, or to analyse and exchange it when necessary, nor to directly cooperate with international judicial authorities, such as the International Criminal Court (ICC).

To allow EUROJUST to properly perform its tasks in relation to such crimes, the European Commission is proposing to amend the EUROJUST Regulation. Once adopted by the co-legislators, the proposal will allow EUROJUST to: (1) collect, analyse and preserve evidence in relation to core international crimes; (2) process data, such as videos, audio recordings and satellite images, and share such evidence with the relevant national and international authorities, including the International Criminal Court. Sharing of such evidence would only take place when appropriate and in full respect of EU data protection rules. EUROJUST will also coordinate and cooperate with Europol in accordance with their respective mandates.


How is the amended EUROJUST Regulation going to be adopted?

The proposal will be negotiated and adopted by the European Parliament and the Council.


ICC participates in joint investigation team supported by EUROJUST on alleged core international crimes in Ukraine

The Office of the Prosecutor of the International Criminal Court (ICC) in The Hague will become a participant in the joint investigation team (JIT) on alleged core international crimes committed in Ukraine. The JIT, which was set up with EUROJUST support on 25 March 2022 by Lithuania, Poland and Ukraine, aims to facilitate investigations and prosecutions in the concerned states as well as those that could be taken forward before the ICC.

ICC Prosecutor Mr Karim A.A. Khan QC and the Prosecutors General of the three countries involved signed an agreement on the first-ever participation of the Office of the Prosecutor in a JIT. With this agreement, the JIT parties and the Office of the Prosecutor of the ICC are sending a clear message that all efforts will be undertaken to effectively gather evidence on core international crimes committed in Ukraine and bring those responsible to justice.

The main purpose of the JIT is to facilitate investigations and international judicial cooperation. The agreement with the Office of the Prosecutor of the ICC will enable rapid and real-time coordination and cooperation with the JIT partner countries, in connection with investigations conducted by the OTP and competent national authorities.

The OTP is an independent prosecutorial and investigative office established by the Rome Statute of the ICC. On 2 March 2022, following the referral of the situation in Ukraine to the Prosecutor of the ICC by an unprecedented 39 States Parties, Prosecutor Khan announced the opening of an active investigation concerning the situation in Ukraine.

The need for closer cooperation on investigations into alleged core international crimes committed in Ukraine was underlined last week during a coordination meeting at EUROJUST between the JIT partners, the ICC, National Members of EU countries at the Agency and third states with Liaison Prosecutors at the Agency. Since 2018, Ukraine has been one of the 10 non-EU Member States that has a Liaison Prosecutor at EUROJUST.

The Agency will support the JIT partners in the entire process with operational, analytical, legal and financial assistance. EUROJUST also accommodates the coordination and cooperation between all national investigating and prosecuting authorities that have initiated investigations into core international crimes.


What is the background of the EUROJUST actions?

Following the atrocities in Bucha, in Ukraine, President von der Leyen spoke with Ukrainian President Volodymyr Zelenskyy, agreeing to ensure a close cooperation. President von der Leyen tasked Commissioner for Justice, Didier Reynders, to follow-up and support the coordination of the EU efforts to investigate war crimes and crimes against humanity committed in Ukraine.

The Ukrainian General Prosecution Office, 11 EU Member States and the Office of the Prosecutor of the International Criminal Court (ICC) have opened investigations for war crimes and crimes against humanity committed in Ukraine. The Ukrainian prosecution office has established a dedicated homage, requesting citizens to register and document such crimes. The current number of registered incidents of war crimes and crimes against humanity in Ukraine is more than 6000, with a high number of suspects identified (politicians, members of the military, etc.). An EU Joint Investigation Team (JIT) was recently set up with Ukraine, supported by EUROJUST. There are ongoing talks between EUROJUST and the International Criminal Court to agree modalities of cooperation with the ICC. Other Member States have announced that they are considering joining the JIT. The Genocide Network, hosted at EUROJUST, has started training sessions for judicial authorities in the Member States and in Ukraine to enhance case building for core international crimes.

EUROJUST, together with the Genocide Network, has the necessary expertise in preserving and handling evidence related to war crimes and other core international crimes. They have successful operational experience in prosecuting war crimes and crimes against humanity by supporting recent JITs established between several Member States that led to convictions in the context of international crimes committed in Syria and Iraq. However, EUROJUST’s legal framework does not currently provide for the possibility of EUROJUST collecting, preserving, analysing and sharing evidence relating to core international crimes nor to directly cooperate in this regard with the International Criminal Court. In this context, EUROJUST will also cooperate with Europol in accordance with their respective mandates.


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