Ця стаття також доступна українською мовою тут.
I was among the residents of Kyiv awakened in the pre-dawn hours of Feb. 24, jolted from slumber by the sound of Russian missiles and jet fighters beginning their full-scale assault on the sovereign nation of Ukraine. Human rights groups in the country began mobilizing almost immediately to undertake the arduous and emotionally wrenching task of collecting and documenting evidence of war crimes. Some of the groups had extensive experience with the international justice system. Others were new to the terrain, volunteering to do what they could in their nation’s hour of need. Just as civilians rushed to help Ukraine’s military fight, so too were human rights defenders self-organizing to help build cases against the Russian aggressor. They soon had a name: Ukraine 5 AM Coalition, reflecting the hour these hostilities began.
The members of the coalition have been working overtime ever since. The world has just begun to reckon with the horrific sight of civilians slaughtered in Bucha, Irpin, and hundreds of other towns the Russian army had sought to “liberate” before withdrawing in the face of a robust Ukrainian military defense to concentrate their assault on eastern Ukraine. Their withdrawal has allowed researchers to begin to collect and document atrocities in the places they previously occupied. And the world has not yet seen all that has transpired in places like Mariupol, where a small force of Ukrainians was surrounded by the aggressors at the time of this writing and where estimates of civilians killed range in the thousands.
Of course, the important work of documenting Russian atrocities in Ukraine did not begin on Feb. 24 of this year. It began some eight years ago, with the 2014 Russian invasion and annexation of the Crimean Peninsula and the start of the war in Donbas in eastern Ukraine. Organizations such as the Center for Civil Liberties have been working since 2014, activating a vast volunteer base to gather evidence of war crimes and advocating for efforts to harmonize Ukraine’s criminal law with the international justice system. Other civil society groups, including members of the Ukraine 5 AM Coalition such as the Ukrainian Helsinki Human Rights Union, the Regional Center for Human Rights, and the Ukrainian Legal Advisory Group, as well as groups such as the Kharkiv Human Rights Group, have been working with international peers to share information about crimes committed in Crimea and occupied parts of the Donbas with the International Criminal Court (ICC).
The images emerging now from Bucha represent a new frontier in the development of evidence of war crimes. Rarely before have we seen so many atrocities recorded — on video, on social media, in still photos and across the internet. Never have we seen so many examples of intelligence intercepts, revealing details of enemy movements and attacks as they unfold in real time. Historically, war crimes investigators have had to rely on building evidence through eyewitness testimony, and it can take a long time to locate people in a conflict zone and record their recollection of events. The proliferation of so much “open-source” material has the potential to make a dramatic impact on the course of war crimes jurisprudence.
This is all the more important given that Russia has systematically denied any culpability for the crimes against humanity we are witnessing, refusing to acknowledge their existence, attempting to blame Ukrainians for the crimes, and continuing to spread dehumanizing propaganda that encourages further offenses. President Vladimir Putin’s government refuses to cooperate with the instruments of international justice, and exercises its veto power as a member of the United Nations Security Council, gutting accountability mechanisms for a nation whose leader has declared that Ukraine as a nation does not exist. We see news reports suggesting that their soldiers are digging up bodies, even burning them, in an effort to conceal evidence. Video images that can help identify the assailants, with time codes that help establish the sequence of events, are crucial advantages in refuting the aggressors’ denials.
Yet significant challenges remain, even with this abundance of crowd-sourced material. Investigators must track down and verify the sources of such information, not an easy task when drawing from the Internet, where the habit of posting under a pseudonym and the proliferation of “deep fakes” can complicate the authentication of data. Villagers coming to retrieve, honor, and bury their dead, and the journalists rushing to capture and report the ravages of Russian aggression, are engaged in understandable, important, and humane endeavors. But their early presence at a crime scene can compromise the ability to establish identifying information about the attackers that is critical in building cases. And all this technological progress can be hindered by the slow pace of traditional judicial procedures.
Those of us working to document and collect evidence also confront issues of capacity and collaboration. The sheer volume of evidence is massive, and spread out over much of Ukraine’s land mass. Building our databanks involves close coordination between investigators, police, prosecutors, and civil society groups, both within Ukraine and internationally — a tall order when so much of our government and the relevant agencies are under severe stress.
Then there are issues of the legislative landscape in Ukraine. Our system of justice does not recognize crimes against humanity as a category of prosecutable offense. It places unrealistic restrictions on the length of time for investigations of atrocities. We urgently need parliament, which has been functioning amid this crisis but not playing a central role in decision-making, to pass legislation to bring Ukraine in line with international law.
All of these matters pertain to the slaughter of civilians. We also confront a whole different category of offense: the forced relocation of thousands of Ukrainian citizens, including children, to Russia. Their location is unknown, communication is impossible, and investigators have no access to Russian terrain. Proving the crime of kidnapping will be hard. And establishing factual links between so many individual atrocities and the criminal intent of Russia’s political and military leadership will be harder still.
Despite the challenges, there are hopeful signs. Other nations in the region, already offering so much necessary assistance with food, shelter, and arms, are also supporting the work of documenting war crimes in Ukraine. It is heartening to see a joint investigative team — Ukraine, Lithuania, and Poland — beginning work under the auspices of Eurojust, the European Union Agency for Criminal Justice Cooperation, sharing evidence, comparing findings, avoiding duplication of efforts. France has sent police equipped with a DNA lab to Bucha and Irpin to do forensic examinations. These sorts of specialists are enormously helpful — and can, in time, help with tasks such as identifying the location of weapons, even identifying the serial numbers on rifles used in specific attacks.
More help is needed, not only from other European countries, but from regional institutions like the European Union and the Council of Europe. Too often these institutions are making ad hoc, reactive decisions when stronger frameworks for justice and accountability centering on the victims of aggression are needed. Ever since World War II, Europe has been proud of its efforts to promote the rule of law and protect human rights. That legacy is at stake today in Ukraine.
When Russia invaded Crimea, the international community largely looked the other way. Today, we are seeing the consequences of Putin’s ability to act with impunity. The world must rally to help bring this murderous regime to justice. The investigations we are conducting today are of paramount importance — not only for Ukraine, but for all of humanity.