JIT Investigations
The work of joint investigation teams is one of the forms of cooperation between states in criminal proceedings[485]. The legal basis for such collaboration is set out in the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters[486]. According to its provisions, a joint investigation team may be set up, in particular, in situations where: a State Party’s investigations into criminal offences require difficult and demanding investigations having links with other Parties; a number of State Parties are conducting investigations into criminal offences in which the circumstances of the case demand coordinated, concerted action in the State Parties involved. At the same time, it is necessary to have a clear understanding of the objectives and purpose of the investigation, as well as the process and location of the prosecution based on its outcomes.
Following 24 February 2022, Ukraine allegedly decided to use the successful experience of the JIT in the case of the МН17 crash[487], but in relation to the international crimes committed as a result of the full-scale invasion. On 26 March 2022, the Prosecutors General of Ukraine, Poland, and Lithuania signed an agreement to establish a joint investigation team into alleged war crimes and crimes against humanity on the territory of Ukraine. According to the Office of the Prosecutor General, the JIT will focus on the collection, secure storage and rapid exchange of information and evidence of war crimes collected during investigations in the territory of the participating countries, as well as criminal intelligence[488]. Eurojust has supported the agreement and emphasised that joining was open to all EU member states[489]. At the time, the then Prosecutor General, Iryna Venediktova, called on other countries that had also opened investigations into the situation in Ukraine to join the JIT. On 25 April 2022, the Office of the ICC Prosecutor joined the JIT as an observer[490]. In addition, Estonia, Latvia, and Slovakia also became members of the JIT on 31 May 2022[491]. Romania also joined the JIT on 13 October 2022[492] and Europol in 2023[493]. States which have the most substantive and consistent experience in investigating and prosecuting grave crimes under the principle of universal jurisdiction, such as Germany, the Netherlands, France, Switzerland did not join the JIT.
On the part of Ukraine, structural investigation, which includes all the recorded incidents of the full-scale invasion of Ukraine by the Russian Federation, is investigated in the framework of the JIT. As reported by the Office of the Prosecutor General at the time of the establishment of the JIT, cooperation between the countries should include interviewing individuals who left the territory of Ukraine as a result of the armed conflict and seizing property of those involved in war crimes committed on the territory of Ukraine[494]. The investigations by other countries also pertain to the allegations of international crimes committed as a result of the armed conflict in Ukraine without focusing on individual cases.
The JIT has indeed become a rather large entity whose work requires clear guidelines at the level of a joint agreement. As an example, the JIT that investigated the МН17 case, was set up to investigate a concrete incident and it set the following as the objectives of its work: to identify those responsible for the downing of the flight and to gather evidence for the prosecution of those responsible. The countries agreed that Dutch standards would be applied to the investigation, and that cooperation between the countries allowed the Dutch and Australian investigators to conduct investigative actions in Ukraine's territory together with Ukrainian authorities[495]. No such agreement in the case of the current JIT is publicly available.
The efficiency and effectiveness of the JIT ultimately depends on a clear vision of its end goal and a strategy that can ensure concrete results. Presently there does not appear to be an end goal clearly defined nor is there a strategy. The aim has been defined as “to facilitate investigations and prosecutions in the States concerned, as well as those that may be taken forward to the ICC”[496]. To this end JIT member States document the information from Ukrainian refugees and OSINT. Although the ICC is mentioned as a mechanism which could use the information, it is clear that the ICC will only be able to use limited information collected by the JIT states only pertinent to their investigations. In addition, there is no clarity as to the procedural standards which are used by different states to collect the information. Although the European Network for Investigation and Prosecution of Genocide, crimes against humanity and war crimes (‘Genocide Network’) is playing the role of the coordinator, members of the JIT use their own legislation as a legal basis for documentation which means that investigative standards used by different states within the JIT also differ. This may affect the quality of the information collected and its status as potential evidence, depending on where the documented crimes will ultimately be prosecuted. In order to clearly identify the ultimate role of JIT and its added value in the myriad of various accountability initiatives there needs to be an overall strategy and vision of the justice and accountability architecture for the situation in Ukraine.
The establishment of the JIT in such a format with the Prosecutor of the ICC and Europol as participants has been unprecedented in many respects. Ukraine has been put in a rather challenging situation as a result of non-ratification and non-implementation of the Rome Statute, which means that its procedural standards remain unaligned with the rest of the JIT members. Furthermore, Ukraine is not a member of Eurojust or Europol. Consequently, there are questions as to its access to information that has been collected and documented by other JIT’s member states, but also the use of its information in the domestic proceedings, bearing in mind that Ukrainian legislation does not allow the use of information collected and/or stored by third parties, such as Core International Crimes Evidence Database (CICED)[497].
