Prosecutor General of Ukraine Speaks to West Point Cadets

Editor’s note: On September 20, 2023, the Prosecutor General of Ukraine, Andriy Kostin, visited the Lieber Institute for Law and Warfare at the United States Military Academy West Point to meet with cadets and faculty. He made the following official remarks.

Thank you so much for inviting me here today. It’s both an honor and a challenge to speak to a group of West Point cadets. An honor because of the deep relationship between the armed forces of Ukraine and their American counterparts, and a challenge because I hope I can shake up some of your thinking in what we discuss today.

Why am I here, and not some Ukrainian colonel or general? Well, I hope you get plenty of those here too, though as you can imagine, they are quite busy these days. But the team I lead, as the prosecutor general, is an integral piece of the war effort. Unfortunately, a very critical piece, because the war Russia is fighting is against the Ukrainian people.

The war against Ukraine is a total war, and in some way or another, almost every Ukrainian is fighting it. If you have not read it, you can find Putin’s 10,000-word essay on why Ukraine doesn’t really exist as a nation, a culture, a people, or a history to understand that we are fighting for survival. You’ve probably studied some aspects of the war against Ukraine. But the kind of total war we face as Ukrainians: your American military could fight it, yes, I have no doubt. But would the rest of your society be ready? Ready to fight, ready to mobilize, ready to innovate? Ready to turn everything from industry to art into weapons that can help win a war? Ready to find the unity to face such a corrosive aggressor?

Every nation hopes they know what the answers to these questions will be when the war comes, but you can’t really know until those first hours and days pass. No nation can answer them for another.

You are here because you already made the decision that it may someday be necessary to fight for your country, for its survival and its freedom, for its land and its history, for its interests and its values. You will be officers in the greatest military in human history. From the first day of your training, you begin to understand the responsibility that comes with this might. All your partners and allies are grateful that this is the fighting force of a free nation, and also that it is a fighting force for the free world.

The Armed Forces of Ukraine have learned a lot from their counterparts in the U.S. military since the Revolution of Dignity and the Russian invasion in 2014, and since the full-scale invasion began in February 2022. Our army was built amid this near-decade of war, and then doubled, and it is still expanding. Everyday, Ukrainian forces must innovate to survive and advance, school is mostly the battlefield, and what they learn about the enemy matters. And so you are learning a lot from us, too.

Part of what we are all learning is that fighting just wars still matters. And that we must have the will and ability to win such wars. Ukraine must be where Russia is defeated. February 2022 was no anomaly, but the endpoint of 30 years of Western engagement with Moscow that enabled bad behavior, ignored the invasion of two neighbors and the annexation of territory, ignored the de facto annexation of Syria, ignored countless violations for which Russia has not yet faced any real accountability.

The world the Kremlin envisions is one where the willingness to use force to achieve political and strategic objectives is worth the risk for unfree nations because they believe free nations can not, or will not, absorb similar risk. There are other nations, too many other nations, who look at Russia’s defiance of rules of war and rules of peace as a model to emulate. If we do not defeat this mindset, it will be a century of danger for American soldiers no matter which theater you are in.

Each generation of Americans eventually has to decide how it will defend the American idea, and the power of the American idea in the world. I know that these days—maybe since the 1990s, maybe since the Iraq war, maybe since Afghanistan—this has become a topic no one wants to discuss, and it isn’t always easy to explain why we need to be out in the world defending what is important, and what this even looks like now. But, in trying to understand law and war, I will reference this passage, from an essay on freedom by Sebastian Junger:

It was not until the sweeping human rights laws of the twentieth century that freedom stopped being a question of fighting off one’s enemies . . . . Enshrining human rights as the apex of international law is one of the greatest achievements of Western society—perhaps greater than landing on the moon or decoding the human genome—but depends entirely on maintaining a delicate balance between national sovereignty and collective action. All it takes to destroy that balance is for one powerful nation—Hitler’s Germany for example—to decide they’re better off doing what they want and suffering the consequences than abiding by the treaties. In the case of Germany, it almost worked.

The world America fought world wars for is the one where freedom means more than simply fighting off enemies, means more than simply surviving. Every so often, a bad actor tests this premise. Russia does it now, and other potential aggressors watch what the reaction will be.

You will all become essential defenders of the world defined by alliances instead of enemies. Ukraine is already showing you that it can be a vital outpost to support you. You have all seen the numbers. In the first ten months of this renewed Russian invasion of Ukraine, for some five per cent of the U.S. defense budget and contributions from other partners, Ukraine destroyed about half of the military capability of the second largest military in the world. This is an excellent investment of American funds against an enemy force by any balance sheet. Our drones now haunt Russian skies and seas. And we can and must take risks that you would not. Do not just stand with us until the end, but until the defeat of this common enemy, until the victory of the free world over those who hope that freedom is the anomaly.

If we believe in freedom, we need to fight for democracy everyday, to fight ascendant authoritarianism every day. Right now that battlefield is in Ukraine. I say again, the place to defeat Russia is in Ukraine. The best investment of American resources for this purpose is in Ukraine.

There are wars to be won on the battlefield, wars to be won in the narrative domain, and wars to be won in memory, and in truth. My team’s effort to document and prosecute Russia’s war crimes against Ukraine is primarily, though not solely, a component of this third category. As you likely know, Russia is quite adept in this second category—long term narrative wars—and they excel at blurring their invasions of neighbors into “provoked interventions,” bringing a lot of gray to what should be black and white. This muddling of truth has allowed Russia to evade accountability for its actions, and the failure of accountability paved the way for the February 2022 full scale invasion of Ukraine. Russian accountability—ensuring the truth of their actions is preserved in memory—is thus an essential component of establishing effective deterrence against Moscow and preventing a next Ukraine.

There is the battle of armies, the battle of narratives, the battle of truth. And part of how we win narrative and truth is through accountability, in ensuring that Russia is prosecuted for the crime of aggression against Ukraine, for the crime of genocide against Ukraine, and for all its other war crimes against Ukraine. That is the task that I lead, tracking, documenting, and building cases to bring real accountability to Moscow, even while the war is ongoing.

This task is immense. There are events like Bucha and Izium where mass killings of civilians must be documented. There are the nearly daily strikes targeting civilian homes and infrastructure that must be documented. There is the treatment and torture of Ukrainian prisoners of war that must be documented. There are the 19,000 Ukrainian children who have been illegally deported to Russia and forcibly adopted into Russian families who must be traced, returned, and reintegrated. There are the thousands of civilians who have been unlawfully detained, tortured, and in some cases killed, as well as those sent to Russia.

Across the territories illegally occupied by Russia—no matter how briefly—the occupation authorities are efficient in their application of terror, and all of it must be investigated and documented, cases assembled nationally and internationally to show the world that Moscow’s unlawful behavior can’t be blurred away.

If you try to visualize this as layers of data, the scale of it can quickly become overwhelming without absolute clarity of purpose. Russia’s war on Ukraine, as you have likely seen on social media, is probably one of the most documented wars in history (estimated at more than 500 terabytes of data). Just as open source intelligence lets us follow the battle maps like never before, it also allows us to track Russian war crimes like never before. Ukrainian efforts to bring Russia to justice for its crimes will likely be some of the most evidence-intensive in history.

Open-source intelligence may add mountains to the evidence, but simply capturing these war crimes isn’t enough. And this is something you, as students of the law of armed conflict, should keep in mind. It is the country that you fight for that will determine accountability by doing the work to prosecute these crimes. A nation’s reputation and truth is impacted by how people are held to account. And like any law, if you cannot enforce it, it does not work. If the rules of war that you are learning here are no longer respected, it will be a danger to all American forces globally.

So in Ukraine, with hundreds of investigators and prosecutors, we document these war crimes and we prepare cases to prosecute them, even as everyday, there are more crimes and there is more to document. We will hold Russia to account for all its crimes. Even where cases may not be fully prosecutable, they will be declarations of the intent of the Ukrainian government, recorded in history to show Russia and the next “bad actor” that the world is watching, and that there is a price.

These efforts are as essential as defeating Russia on the battlefield. There can be no face-saving way out for a regime that declared its intention to erase a nation, a people, a culture, a history. We must challenge our assumptions to rebuild real deterrence. Assumptions of how we fight, and how we win. Not to defend, but to expand the free world: through political will that mirrors military strategy, through a revitalized ability to wage and win narrative wars, and through ensuring those who again believe this century can be defined by enemies coming over the wall feel a bite of accountability. We will each of us, as individuals and nations, have different pieces in this fight. But it is the task for us all.

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Andriy Kostin is the Prosecutor General of Ukraine as of 28 July 2022.

Photo credit: USMA Department of Law