Ukraine, ICC and Eurojust: how will that work

On April 25, the International Criminal Court (ICC) Prosecutor announced that his office has joined a Joint Investigation Team on alleged international crimes in Ukraine, under the auspices of Eurojust, the European Union Agency for Criminal Justice Cooperation. It is a first for the ICC. Actors all insist on the need to coordinate Ukraine investigations, but there are potential dilemmas.

Meeting at the Eurojust offices in The Hague (round table)Working meeting at Eurojust headquarters in The Hague, Netherlands. At the end of March, the European agency set up a "Ukraine Joint Investigation Team". This includes Lithuania, Poland, Ukraine and a newcomer to this inter-state coordination body: the office of the prosecutor of the International Criminal Court (ICC). © Jakov Minic
5 min 35Approximate reading time

“In the past, it was sometimes very difficult to find a State that was ready to find the financial and human resources to start war crimes investigations. Today, with Ukraine, we have a very different situation. We may actually have more actors involved than we can manage,” Eurojust President Ladislav Hamran said in a March 30 online briefing.

Eurojust had announced the creation of a Joint Investigation Team (JIT) on Ukraine on March 28. It was requested by Lithuania, which is the lead country, and included Ukraine and Poland. Since April 25 it has a newcomer and an unusual one: the Office of the International Criminal Court Prosecutor.

In his briefing, Hamran pointed to the fact that various international bodies and agencies including the ICC and about a dozen national prosecutors are now investigating possible war crimes in Ukraine, as documented in this map by Justice Info. Ukraine’s Prosecutor has already registered thousands of cases, “with a high number of suspects identified”, according to the European Commission. More than 5 million people have fled to other countries and may be witnesses to such crimes. And that is where Eurojust can help, Hamran argued, helping to provide a framework for international cooperation along with support and expertise.

What is Eurojust?

Eurojust, based in The Hague, Netherlands, was set up by the European Union in 2002 to promote cross-border cooperation on tracking serious international crime. As well as the EU member states, it also has 10 third-country (i.e. non-EU) associate members, including the US, UK, Norway, Switzerland and Ukraine, which all have so-called “liaison prosecutors” mandated to Eurojust.

Eurojust has in the past focused particularly on crimes like international terrorism, drug smuggling and money laundering. But in recent years, war crimes investigations have also become more of a focus.

According to Eurojust spokesman Ton Van Lierop, it is a “small organisation” with currently some 200 of its own employees, and does not have its own investigators. It provides logistical support, translation services and legal expertise to Joint Investigation Teams set up under its auspices. In addition, it houses and provides financial support for the Secretariat of the Genocide Network, a European network of jurists specializing in international crimes (genocide, crimes against humanity and war crimes).

The European Commission on April 25 proposed to amend Eurojust’s Regulation giving it the legal possibility to “collect, preserve and share evidence on war crimes”. “Due to the ongoing conflict, it is difficult to store and preserve evidence securely in Ukraine,” says the Commission. “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.”

This proposal now has to go to the European Parliament and Council for approval, but is being fast-tracked, according to Van Lierop.

“The daily stock market of judicial affairs”

Van Lierop says Eurojust will “try to coordinate as much as possible” all the various actors gathering evidence. This is important, he says, because victims and potential witnesses including the refugees that have fled Ukraine should not be re-traumatized several times over by having to testify more than once – a serious issue already, considering the number of NGOs and journalists covering war crimes allegations in Ukraine. Harmonizing methodology in evidence gathering is also important, Van Lierop told Justice Info. By hosting regular meetings between delegates from member and associate member states, Eurojust is the “link bringing them together” in the field of criminal justice, he says. Stefan Blättler, the new Attorney General of Switzerland, told Justice Info he sees Eurojust coordination meetings like “the daily stock market of judicial affairs”.

Eric Emeraux, former head of the French Central Office for the Fight against Crimes against Humanity, knows Eurojust well. He says that for him, coordination took place on two levels. “The first is the Genocide Network, which is the network in which you will find all the war crimes units of Member States as well as third countries like Switzerland, Canada, the US and others that may be invited.”

This network meets twice a year in The Hague, usually for 3-4 days, he says. The meetings are organized in two parts with the first one being “quite open” also to NGOs and others involved in the fight against impunity. “The second part of the meeting is closed,” he continues, “and here there is an exchange between the war crimes magistrates and police on our own cases.”

Another instrument of cooperation which he says is even more useful is “Joint Investigation Teams” (JIT), which Eurojust facilitates. Emeraux was part of one of the first JITs, between France and Germany on Syria. This resulted in the first trial of an agent of the Bashar al-Assad regime and his sentencing to life in jail for crimes against humanity by a German court earlier this year. Emeraux says the cooperation was vital, because while the suspect was in Germany, France holds the so-called Caesar files, which provided key evidence. Van Lierop also says this was a flagship case for Eurojust.

What is a Joint Investigation Team?

“A Joint Investigation Team is one of the most advanced tools used in international cooperation in criminal matters, comprising a legal agreement between competent authorities of two or more States for the purpose of carrying out criminal investigations,” says the Eurojust website. “In complex and time-sensitive cross-border investigations, speed and efficiency are of the essence,” it explains. “However, in many cases the operational needs of the authorities involved are not fully met by the traditional channels of mutual legal assistance.” And that’s where JITs can help, setting up direct cooperation and communication between the authorities involved in a case. Providing operational, legal and financial support to JITs is a key part of Eurojust’s work, the agency writes.

Emeraux certainly thinks they are useful. “I think it is really a very interesting tool because it facilitates exchanges between countries and especially exchange of judicial information in real time,” he told Justice Info. “It’s a contract that is signed at Eurojust, in the framework of Eurojust, because it is in fact the Liaison Prosecutors who determine the legal contours of the contract.” Then Eurojust can provide judicial expertise and logistical support, including translating masses of evidence, which States don’t necessarily want to finance.

ICC participation: a one-way or a two-way street?

“The Ukraine situation, in particular, demands collective action so as to secure relevant evidence and ultimately ensure its effective use in criminal proceedings,” said ICC Prosecutor Karim Khan as he announced the participation of his office in the JIT for Ukraine. “In recognition of this, my Office takes a landmark step today in joining a JIT under the auspices of Eurojust for the first time.”

Khan also said that “the participation of my Office in this JIT will not be a one-way street. We do not wish to only be the recipients of information and evidence. We also want to serve as an effective partner with respect to the conduct of domestic proceedings in relation to core international crimes, in line with the principle of complementarity. In that spirit, my Office will be seeking to identify all opportunities through which it can provide information and evidence to the concerned national authorities in support of their investigations and prosecutions.”

In practice, if the working relationship between national investigations and the ICC were to be a “two-way street”, it would be a significant change in the attitude and positioning of the international court. Complementarity has largely been a one-way street so far, the ICC often using “the independent nature of [its] mandate” as a reason to be a receiver rather than a giver.

Ukraine's participation and impartiality of investigations

The Ukraine JIT now has three States, including Ukraine itself, and the ICC Prosecutor’s office. It could be sensitive if, for example, the ICC were to find evidence of Ukrainian war crimes. Asked about this, Van Lierop said that “the JIT countries and the ICC will exchange evidence necessary for the investigations and work in close cooperation. The ICC will share evidence on a discretionary basis, but is not obliged to share all evidence”.

Emeraux says that four members could be complicated to manage. What has worked best in his experience, he says, is a bilateral JIT of two members, as with Syria. But he agrees that efficient cooperation on Ukraine is key: “For Ukraine, the issue is so vast that there is a big need for coordination.”