War crimes investigator says atrocities in Ukraine are 'on another level'

Warning: This story contains distressing details.

The mass graves uncovered in liberated Ukrainian cities are unlike anything war crimes investigator Nigel Povoas has seen.

Povoas arrived in the liberated territories in Kharkiv region shortly before the discovery of a mass grave in a forest outside the eastern city of Izium, which was recently recaptured from Russian forces. Ukrainian officials said they found 436 bodies — most of them civilians — so far.

It's one of several mass graves that Ukrainian officials have uncovered in formerly Russian-occupied parts of the country. And they're just one element in a "vast array of potential war crimes" Russians have committed since it invaded the country in February, Povoas said.

Russia has denied responsibility for the mass graves, and for war crimes more broadly. 

Povoas, a U.K.-based lawyer, is heading up the International Mobile Justice Team, a multi-national group of prosecutors investigating potential war crimes in Ukraine, backed by the U.S., the U.K. and the EU. 

Here is part of his conversation with As It Happens host Nil Köksal. 

Nigel, I understand you arrived in Izium after its liberation, but before the mass grave was discovered. I'm wondering what it was like for you to know that the city you'd been in was the site of all of those murders?

I was fortunate — or unfortunate enough, maybe — to be in Izium only a day or two after it had been liberated. So there was an extremely heavy military presence there. They were still securing the city. And, obviously, the de-mining process was underway.

But it was a pretty tortuous journey down there from Kharkiv through the liberated territories. There were bridges that were bombed. The roads were shelled. Craters were littered along the way. And we passed through civilian villages, which have been utterly decimated.

But there were still civilians outside actually looking happy and waving as our cars went past. But it was an incredible sight, actually. Lots of Russian tanks turned over, burnt out, and military equipment everywhere.

Can you tell me about the rest of the investigations you're conducting, in addition to looking at these mass graves?

There's so much. I mean, as you've been no doubt reading, there's been a vast array of potential war crimes, or actual crimes, being committed since the invasion in February.

So what I can say is that I've visited all the major sites, both those that have been occupied like in the Kiev region in March, like Bucha and Borodyanka and Irpin and other villages around there, where the crimes were mainly crimes of sexual violence, torture, unlawful detention, executions and all sorts of atrocities, but also the major missile attacks on civilian centres.

You may remember Kremenchuk, where there was a shopping centre which was completely burnt out. And then in Vinnytsia, just a normal city in the centre of Ukraine — very comfortable, quiet city — which was hit right in its centre, causing massive deaths. And also down in the south in Odesa and Serhiivka, where civilian buildings and highrise buildings were completely destroyed and many were killed there in a holiday camp, in fact. 

So what I'm trying to say is that there's a vast array of crimes. And with the recently liberated territories, we're starting now to see a pattern of crimes. Not just those awful incidents in the occupied or previously occupied territories, but obviously a pattern of missile strikes, which appear to be, at best, disproportionate and indiscriminate, or at worst, intentional strikes on civilians.

You do very difficult work, not just in Ukraine, and you've certainly seen a lot in your career. How does what you've learned about the mass graves compare to what you've seen in the past?

This is on another level to … what any experienced investigator or prosecutor would have seen, whether in their own countries or even internationally.

Obviously Syria may have compared with that, but it was difficult to get into Syria on the ground as those attacks happened. The difference with Ukraine is that there's some unprecedented access for international investigators and prosecutors.

There are several different groups conducting these kinds of investigations. How does all of that work? 

The Ukrainian authorities have primary jurisdiction, obviously, to investigate the crimes taking place inside their own country. However, on top of that, there may be jurisdiction for the International Criminal Court to investigate and take on some of the bigger cases — those that the Ukrainians feel they're unwilling or unable to investigate because of the sheer quantity and gravity of what they're faced [with].

On top of that, you've probably read about the United Nations sending investigators in. Their remit is a little bit more limited. It's not to investigate criminally — to bring criminal charges and prosecutions. It's to document human rights violations for the record, which is an important job…. However, some of the evidence they uncover may be used, potentially, in a future criminal prosecution.

And I guess on top of that, just to complicate it even more, there are a number of  ... non-governmental organizations who are going out into the field and uncovering and speaking to witnesses on some of the human rights violations that they've discovered.

Given that Russia is not a member of the [International Criminal] Court [and] has veto power at the UN Security Council, how optimistic are you that people who are responsible for the atrocities that you've seen, the mass graves in Ukraine, are actually going to be held accountable?

There's jurisdiction, obviously, with Ukraine and the International Criminal Court to pursue individuals from Russian forces, both military and political. The ICC does have jurisdiction over crimes on Ukrainian territory, even if it's committed by Russian nationals.

However, you mentioned the Security Council and the veto. What that will mean is that there is no hope of any separate international court backed by the Security Council. It is potentially possible to create an international court outside of the Security Council, so that could still happen. And you've probably read or heard about proposals to set up an international court for the crime of aggression, to prosecute the Russian forces for invading, unlawfully, Ukraine.

And the separate question, overarching all of what I've just said, is how optimistic am I about whether they will be held accountable? Well, that's the question of whether these people can be arrested, those who are responsible. That's tricky.

We are optimistic that some of the leaders may eventually be arrested if they're alive. But obviously, the higher you go to the top, to the Kremlin, the more difficult that will be. 

We will build cases, come what may, never mind whether anyone will be arrested. 

What would you say to Ukrainians and others around the world who are hungry for justice, and know how long and difficult this process can be to get to that point?

What I've seen on the ground is that there's a real determination amongst the Ukrainian investigators and prosecutors to bring people to justice. I can speak for myself and the team that I lead that there is a huge determination to use all of our experience and skills to help the Ukrainians, or even help the International Criminal Court, build major cases against the leadership. And I've got no doubt that those in the International Criminal Court will retain the same sort of persistent determination, which is needed.

As to the length of time, we'll have to see. But, again, certainly amongst the team that I lead, there's a real determination to ensure that justice is as swift as it possibly can be — and certainly swifter than it has been in the past in other international courts