Ukraine Series: Interview with Wayne Jordash

By Harriet Salem
21 November 2022

This week, MBTJ spoke to Wayne Jordash KC, Managing Partner of Global Rights Compliance (GRC) about supporting Ukrainian prosecutors and investigators working on war crimes cases. GRC advises governments, civil society and corporations on international human rights and humanitarian law worldwide. Jordash has worked in all the significant international criminal courts over the last two decades, representing governments, military and political leaders and victims

Global Rights Compliance (GRC), worked in Ukraine prior to the Russian invasion which started on 24 February 2022. Can you explain a bit about your work prior to the current escalation?

Global Rights Compliance began working in Ukraine in 2015. Our first project, which was funded by the UK, was essentially an assessment of where Ukraine was in terms of international justice, where it was in terms of compliance with IHL [international humanitarian law] and where it was in terms of prosecuting conflict-related crime in the Donbas and Crimea. Subsequently, we built on that analysis by establishing various projects with, for example, the office of the prosecutor and civil society groups, to build capacity to investigate and prosecute international crimes and to coordinate sending of information to the International Criminal Court (ICC). These are amongst the core services GRC provides.

As I understand, you’ve been based in Ukraine for some time. Do you consider Ukraine home and, if so, how has that impacted on your work here?

That’s correct. The first year I worked here, I moved back and forth between Ukraine and Paris. I moved here fulltime in July 2016, and I have been here ever since. This is now my home. My wife is from here. We married in 2018. For me, working on Ukraine, especially following Russia’s invasion in February, is not about the money. Ukraine is my adopted home. My wife’s family is from here. My friends are here. It’s personal, I feel duty bound to help in whatever way I can, and I see no better way to use my skills than to help Ukraine in this terrible moment that it’s going through. Before the 24 February, I worked on multiple projects, including Ukraine, but also on, for example, a trial at the ICTY [International Criminal Tribunal for the former Yugoslavia] and on GRC’s project on global starvation issues. Now, 95 percent of my work is only Ukraine. Like I said, because I feel compelled to do what I can to help here.

As someone who has worked in Ukraine for some time, in your opinion, how has Ukraine’s capacity to investigate and prosecute violations of international criminal and humanitarian law changed since the conflict started in 2014?

I think that, prior to the start of the conflict in 2014, there weren’t really many prosecutors that had experience with this type of crime. And that was also true of civil society organisations. There’s been a lot of capacity building since then. I think now there is a substantial body of prosecutors and investigators that have worked on these topics for quite some time and have real expertise. That includes, for example, the Crimean prosecutor who is now very experienced in these types of crimes. And of course, since 2019, there’s been a specialised War Crimes Unit comprised of people that are now very skilled. That said, since the events of 24 February 2022, you’re talking about a need for thousands of experts to be working on these issues. Currently there are, I think 6,000 police officers, and maybe 600 prosecutors working on war crimes and conflict-related crimes. So, while there’s a real body of civil society organisations, prosecutors and investigators who now have real experience, I would say they’re still in the minority. And that’s because of the sheer number of cases that need to be investigated and the number of personnel required to do that.

Ukraine has been criticised both for its delay in ratifying the Rome Statute and enacting Bill 2689, which would bring its Ukraine’s Criminal Code into line with the Rome Statute. Are these criticisms justified?

Well, my organisation was one of the key drafters of Bill 2689. Now, there’s a strong push from civil society for it to be signed. In an ideal world it would be signed. It meets international standards, and it would massively simplify things. The Ukrainian Criminal Code has some serious problems, especially in regards to its modes of liability, that make it much more difficult, if not impractical, to prosecute Russian commanders. I think, right now, the focus must be the structural and substantive problems faced by Ukraine in investigating and prosecuting war crimes. Namely, these problems are that Ukraine needs to build capacity and it needs technical skills to ensure proper coordination between civil society, prosecutors and investigators. Right now, I’m focused on those. Bill 2689 would solve some of the critical problems. On the other hand, although I think it’s important to ratify the Rome Statute, it’s not critical to the Prosecutors’ everyday work. To me, ratifying the Rome Statute is important, but it’s not a game-changer. The most critical issue is assisting the prosecutor in working with Article 438 [the provision in Ukraine’s Criminal Code on war crimes]. Article 438 is broad. It covers most of the conceivable war crimes that can be committed today. The problem is getting prosecutors to use it and understand how to define these crimes within the broad, generic article and how to build cases around those definitions. My focus right now is on how to make what we currently have work.

The conflict in Ukraine isn’t new. It started in 2014. The ICC’s preliminary examination (concluded in 2020) determined there were reasonable grounds to believe that war crimes were being committed in Ukraine. Yet, it wasn’t until after Russia’s wholescale invasion, in 2022, that an investigation was opened by the Office of the Prosecutor. Why do you think so little was done between 2020 and 2022?

I think that, in the past, Ukraine like several other similar situations, such as Georgia, suffered because the ICC’s Office of the Prosecutor, just didn’t have the resources that they need to give it proper attention. However, that’s still not a full explanation, because the better approach would have been to go forward with the preliminary examination and recognise that there was need to open a full investigation, which has been clear to me since 2016 when I first started working in Ukraine. That point should have been reached and then the ICC Prosecutor should have turned it over to the Assembly of State Parties for them to deal with the situation, which was that their lack of funding was preventing them from moving to a full investigation. To be honest, I don’t understand why the ICC Prosecutor let it drift to such an extent. Being on the ground, in Ukraine, I saw how hopes turned into frustration and then almost to despair.

On 2 March 2022, following referrals from (an unprecedented) 39 State Parties to the Rome Statute, the ICC Prosecutor announced an investigation into the Situation in Ukraine had been opened. Has this revived hope about the role of the ICC in Ukraine? And, if so, do you think that the ICC will live up to these expectations?

Indeed, since 2 March, there’s a really fevered expectation around the ICC as well as the Joint Investigation Team (JIT) (set up by Eurojust) and the investigations opened by other countries, like Lithuania, Poland and so on. But I think it’s important to keep it in perspective. There’s been a lot of noise but not much has yet happened. There’s not a huge office here for the ICC yet. There are not scores of investigators for either the JIT or the ICC running around. The reality is that 95 percent of what has happened in Ukraine will, largely, need to be investigated by Ukraine’s OPG and civil society and prosecuted by Ukraine. I don’t think there’s going to be a problem of coordination or duplication of efforts between the ICC and Ukraine’s prosecutors. The big problem is actual resources and Ukraine having enough resources, enough technical expertise – from forensic expertise to open-source intelligence expertise. I fear that again there are high expectations of the ICC that will be disappointed at best.

The ICC has a reputation for moving slowly – it often takes years before a trial even starts. How quickly do you think we can expect to see cases being brought in the Ukraine Situation?

Well, I think it depends. Ukraine is a high-profile Situation for the ICC. I think there’s a very good chance that the Prosecutor, who is new in his position, will try to do something more quickly in Ukraine to address the big complaint that ICC prosecutions move incredibly slowly. But in terms of, what I imagine is the Prosecutor’s target, Putin, and the people around him, that’s going to be incredibly slow. That’s not the Prosecutor’s fault, that’s just the nature and complexity of the task. And, also, the ICC Prosecutor just doesn’t have the resources. While there’s been an uplift in resources the ICC has received [from State Parties] due to the high-profile nature of the Ukraine Situation there is a need for a huge commitment of resources to Ukraine. To investigate these crimes, given the scale of them, Ukraine needs hundreds, even thousands of people with specialist skills to be working on these cases. Ukraine doesn’t have that and, to be frank, the ICC Prosecutor doesn’t have them either in those numbers. In practice, the crimes that end up being prosecuted at ICC will barely make a dent in the huge number of crimes that have been committed. The reality is that most of these will need to be investigated by Ukrainian investigators and tried in Ukrainian courts. So, in this regard, I think we’ve got to be cautious in terms of what we expect from the ICC. 

Another major issue is the availability of the accused. Look at Syria where, currently, many more people have died, and many more crimes have been committed. At best we’ve probably had 60 or 70 trials, mostly in Germany [under universal jurisdiction]. So, you’re talking about a handful compared to the totality of criminal behaviour. The same is going to be true for Ukraine. Getting hold of suspects is going to be almost impossible in the short-term. The other issue is that you can do huge investigations into crime based on what happens on the ground – who are the victims, which crimes were committed and so on – but it’s very difficult to bring trials without linkage evidence. That mostly comes from individuals who were inside the military, or political decision-making circles. Until there’s a regime change in Russia, or people in those positions decide to collaborate with the Prosecutor General, that crucial type of evidence is going to be in extremely short supply.

In your opinion, what type of cases should the ICC be focusing on in Ukraine?

I think the ICC prosecutors should concentrate on Putin and the people around him. The main reason for this is they can apply for arrest warrants, which would make it difficult for those people to travel because then if they did travel to a Rome Statute country, they’d be obliged to arrest them. If Ukraine issues arrest warrants domestically, obviously they don’t have the same reach. Regarding Putin, there’s also the additional problem of the immunity of heads of state. He wouldn’t be able to rely on that in an international court, whereas he would in Ukraine. Putting these immunity issues aside, Ukraine maintains the primary jurisdiction to investigate and prosecute. That is where these crimes occurred. Ukraine has a functioning prosecution service. They want to do it, they’re willing to do it and I think, in large part, they’re able to do it.

Building on your last point. Some commentators have questioned whether Ukraine can hold fair trials during an ongoing conflict. What’s your response to that?

Well, I think that unless you’re on the ground, it’s very difficult to get a sense of what’s happening with trials. I think that much critique of the [Vadim] Shishimarin case was not based on a correct understanding of what the case was in fact about. So, for example, one of the major criticisms was the court didn’t properly consider whether Shishimarin had received an order, which he perceived to be lawful. But in fact, when you look at the case file, and I did, it wasn’t about whether he’d received an order from a superior. It was about whether he’d been encouraged by the colleagues that were in the car with him, who were not superiors, to kill a civilian. Secondly, even if he had received an order, the facts of the case also showed he knew from the outset that the person he was shooting was a civilian. He admitted that in his interviews with prosecutors. So, he couldn’t rely on that defence because he knew what he was doing and he intended to kill a civilian.

My overall point is that I think there’s a tendency for international lawyers to criticise national efforts more harshly than they would international efforts. From what I’ve seen of the prosecution here, they are very careful to try and ensure a fair trial and there’s not a culture of vengeance. I see a determination to hold people to account in a way that is credible. Ukraine’s prosecutors are seeking international legal advice to ensure what they’re doing is fair. Indeed, that’s where GRC has been involved in reviewing some of those cases to make sure that they meet international standards. Of course, mistakes will be made along the way. There’s no doubt about it. I mean Shishimarin’s life sentence was a mistake. But the appeals process worked and he ended up with a 15-year sentence. I don’t think anyone can complain about that. It meets national standards and it meets international standards.

So, I think we should continue to be vigilant, but not rush to judgment as to whether just because you’re a country at war that you’re not capable of holding fair trials. I mean, it’s a Catch-22. You can’t have it both ways. You can’t say it’s an international obligation to hold these trials and those trials must be expeditious and then criticise Ukraine for doing exactly that.

Part of GRC’s work in Ukraine has been setting up mobile justice units. What do these consist of?

In essence, the idea is to have a team with all the core competences to support the prosecution. Right now, the project is just beginning. As of now, we’ve got one mobile justice team up and running. It consists of a lead investigator, a lead prosecutor, an international criminal lawyer, me, and an international human rights lawyer as well as six Ukrainian international criminal lawyers. We also have access to a range of other expertise, such as open-source information experts. The idea is not that we will do our own independent investigations, but that we’ll support the prosecutor’s investigations at all stages. That involves reviewing their cases before they go to court, going to crime sites, working with the prosecution and investigators to design action plans and so on. Mobile justice teams are intended to be in-country assistance. A one-stop-shop designed to move wherever is necessary and needed.

There have been a huge number of conflict-related crimes committed in Ukraine and Ukrainian prosecutors have limited resources. In your opinion, which category of crime or perpetrator should be given priority?

The issue here is: what is the prosecution trying to achieve? In my opinion, we should be mapping what has happened in terms of crimes and who might be responsible with the idea that this will be a permanent record, which can be drawn upon in subsequent years and, with luck, used when the current Kremlin regime collapses and there’s a possibility of getting hold of some of the higher political and military leadership. How to prioritise with this broader goal in mind? I think that means in the first instance, don’t try to do everything. There’s no point trying to record every piece of destruction. Firstly, of course, you need concentrate on what is likely to be a war crime. After that you need to focus on what out of the likely war crimes are likely to get into a courtroom and be solid cases.

Now that’s the simple version because, of course, there are other factors to consider. You also must take into consideration public interest and cases that the public would, quite rightly, expect you to focus on. You can’t, for example, disregard Russians bombing a kindergarten and killing children in Mariupol just because you can’t get hold of the suspect. It’s also about what impact the crime has, it’s notoriety. In the end the prosecutor must balance these different issues in deciding what cases are prioritised and deprioritised. But if you try and do everything, you’ll end up doing nothing well.