Photos and reporting emerging following the withdrawal of Russian forces from towns near Kyiv have triggered global revulsion, notably at the apparent summary execution of civilians. This initial evidence strongly suggests that Russian behavior in towns like Bucha and Irpin amounts to the widespread, systematic violence against civilians typical of atrocity crimes. World leaders have condemned the violence as war crimes, urging investigations and accountability. Ensuring eventual accountability for perpetrators and justice for victims means governments and others must quickly support the essential first step: the broadest possible collection of evidence.
While the volume of video footage, photos, satellite imagery and witness testimony seems to overwhelmingly incriminate Russian forces, achieving accountability will require painstaking work to gather and process the evidence. To collect evidence amid armed conflict, investigators must reach crime scenes, victims and witnesses who remain under threat. Especially amid the confusion of war, people may disrupt crime scenes and inadvertently destroy evidence as they clear debris for safety or health reasons — or simply by burying the bodies of their loved ones. Victims and witnesses may flee to safety, making them hard to find during an investigation. Investigators must evaluate documentary evidence — including photos and video or audio recordings — to ensure that it has not been manipulated and is not misinformation. They must analyze the evidence to ensure that the legally defined elements of each crime are met and that liability has been sufficiently established. This is particularly true with allegations of genocide, which requires establishing the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
To Promote Justice, Use Every Channel
No single court or judicial system can prosecute the myriad types of war-related crimes now emerging in Ukraine. The surest path to enforcing accountability is to simultaneously use international and national-level judicial systems in a web of “mutually reinforcing approaches,” Georgetown University law professor Jane Stromseth urged in a recent USIP forum. This strategy, endorsed by many other experts, must begin with a similarly multi-channel approach to gathering evidence. So for governments, organizations and citizens seeking to advance accountability, it’s worth pausing to note four distinct types of investigative efforts underway, and the particular contributions that each can make.
U.N.-Led Factfinding: A Broad Inquiry. The U.N. Human Rights Council established an Independent International Commission of Inquiry on Ukraine to “establish the facts, circumstances and root causes” of violations of human rights and international humanitarian law related to Russia’s invasion. Such U.N.-backed commissions of inquiry typically gather evidence through open-source materials, submissions from interested parties and investigative missions. While the commission will have the power to identify perpetrators and recommend accountability measures, its most significant impact will likely be in establishing a U.N.-recognized historical record that can broadly strengthen the credibility of all accountability efforts and support restitution and reparations for victims.
Criminal Investigations: National and International. Criminal investigations center largely around the work of Ukraine’s Prosecutor General’s Office. These efforts are led by trained criminal investigators, who operate under investigative rules of procedure and of evidence. To date, the Ukrainian Prosecutor General’s Office has documented more than 4,000 alleged war crimes, many based on citizen reports via a public website. Ukraine’s efforts are complemented by a separate joint investigative team supported by the European Union Agency for Criminal Justice Cooperation. This team includes investigators from Lithuania and Poland, both of which have opened their own criminal investigations into Russia’s conduct in Ukraine. The team also will facilitate cooperation between its members and the International Criminal Court (ICC). The ICC, a permanent criminal court established through a treaty among 123 member states to prosecute atrocity crimes, operates the third investigative team on Ukrainian territory. While the ICC conducts its own investigations, it relies heavily on evidence shared by states, civil society and individual people. In addition, many states that have established universal jurisdiction over atrocity crimes — including Germany, Spain and Sweden — have opened investigations. While these states have not sent teams to Ukraine, they will likely rely on the work of the European Union team and of human rights organizations. Achieving the fullest accountability for crimes will require these disparate investigations to efficiently share information and to collaborate on prosecution strategies for offenders within different venues.
Human Rights Documentation Efforts. Investigations by civil society organizations add data and analysis to support criminal investigations and the U.N. fact-finding effort — and also civil and non-judicial processes of accountability. Alongside the international human rights monitors, such as Human Rights Watch and Amnesty International, many Ukrainian-led documentation efforts formed following Russia’s 2014 aggression in the Donbas region. Civil society and citizen-led efforts are playing an increasingly important role, and new efforts are likely to have begun documenting crimes throughout Ukraine since the February invasion. These efforts typically capture victim and witness testimonies and may include efforts to corroborate those accounts. Such grassroots efforts may serve as an important source of information for criminal investigations, but further investigation is typically required to use the evidence they collect in criminal proceedings. Citizens’ efforts are central to civil and non-judicial efforts to provide victims with justice and recognition of their losses, including restitution and reparations.
Digital Open-Source Investigations. Digital investigators have become critical partners in collecting open-source evidence and providing technical skills and additional capabilities to monitor reports of crimes and to determine the authenticity of digital evidence. Several non-government groups — led by the British-based Center for Information Resilience — maintain a crowd-sourced Russia-Ukraine Monitor Map and archive of military events, including civilian casualties and attacks on civilian infrastructure. Netherlands-based Bellingcat tracks Russian misinformation and the use of cluster munitions against civilians using satellite and drone imagery, and the group authenticates evidence submitted by civilians. Amnesty International’s Crisis Evidence Lab provides similar support for Amnesty International investigations of military attacks on civilians. This authentication process can add sources of reliable evidence to the other types of investigations.
Supporting the Collection of Evidence
Given the need for multiple channels of evidence collection, governments and others interested in accountability should support a range of efforts. This may include:
- Remaining firm in supporting United Nations and International Criminal Court inquiries through financial contributions, the sharing of intelligence and other evidence, and public statements affirming support for accountability processes.
- Bolstering the capacity of Ukraine’s Prosecutor General’s Office to conduct investigations, develop an investigation strategy and coordinate with other states.
- For European states, supporting the efforts of the European Union’s joint investigation team through funding or participation. Membership in the team is open to all European Union member states.
- Providing technical and financial support for Ukrainian human rights documentation efforts. This can strengthen their ability to document and store evidence, and to safeguard the security of victims, witnesses and investigators.
- Providing technical and financial support to investigating organizations to help them protect the evidence they have gathered against Russian cyberattacks. Russia has shown the capacity and will to conduct attacks that could aim to destroy evidence and undermine investigations.
The disparate investigations and their supporters should work to coordinate their collection of evidence to minimize the hazard of re-traumatizing and exhausting victims and witnesses. To the extent possible, supporters of accountability should help provide victims and witnesses with psychosocial support to facilitate their vital participation in accountability processes and to help them recover from trauma.
Effective accountability for war-related crimes is based on effective investigations. As atrocities unfold in Ukraine, it is incumbent on the international community to establish an investigation infrastructure capable of collecting and evaluating evidence of these crimes and, ultimately, of holding perpetrators accountable.