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From war crime to conviction — what it will take to bring the Bucha killers to justice

For Bucha, there will be retribution — that’s the vow from the Ukrainians after the discovery of mass graves and bound corpses in the wake of retreating Russian troops from the northern suburb of Kyiv.

“We will identify them all. We have a very clear task,” said top presidential adviser Oleksiy Arestovych.

Arestovych even went so far as to compare the impending hunt for the culprits from Bucha to Mossad’s hits against the Black September terrorists who murdered Israeli athletes at the 1972 Munich Olympics. “There will be precise retribution. Nobody will escape,” he said.

In reality, however, the path to bring President Vladimir Putin or other top Russian officials to justice is likely to be very different — part of a slow, difficult forensic process under full international legal scrutiny, with little prospect of immediate convictions.

In the court of public opinion, Putin has already been convicted. Judges from U.S. President Joe Biden on down are pronouncing him guilty of war crimes, swayed by first-hand accounts and smartphone videos detailing Russian atrocities. Already, private satellite images have been used to debunk Moscow’s claims that Ukrainians planted the dead bodies in Bucha after the Russians left.

Legal experts say that Ukraine, where some 70 percent of the population had access to the internet before the invasion, will be a “test case” for user-generated evidence. International Criminal Court prosecutors have been on the ground in Ukraine for more than a month now to investigate possible war crimes dating back to November 2013, as well as those playing out in real time and documented by victims’ smartphones.

Yet social media posts are still far from being substitutes for the forensics, intelligence and documentation needed to prove battlefield crimes. Even if the metadata checks out and investigators can demonstrate the videos show what they say they do — that a clip of, say, a soldier shooting a civilian in a bare room is from Kharkiv in March 2022 and not Palmyra in March 2016 — actually using them in court is another matter.

And when it comes to prosecuting the higher-ups, images rarely offer clarity on who’s actually calling the shots.

The process of linking foot soldiers to leaders “could go all the way up the chain of command to kind of a ministerial level, top generals, and even President Putin,” said Clint Williamson, a seasoned American war crimes prosecutor now leading the joint EU-U.S. investigation in Ukraine. But while the Russian military’s direct command-and-control structure could make that link fairly straightforward, Williamson said, “the whole process of filing documents and bringing people to trial can be very, very lengthy.”

CSI: Warzone

For weeks, activists knew something bad was happening in Bucha.

A Human Rights Watch report published Sunday documented at least one summary killing of a Ukrainian civilian there on March 4, based on an eyewitness account.

But it wasn’t until last week, when the Russian soldiers rolled out of Bucha, that outside observers could enter the city and start the “gruesome work” of documenting the damage, said Andrew Stroehlein, Human Rights Watch’s European media director.

For something like the apparent mass grave found in Bucha, he said, the key is to secure the site and bring in forensic experts “to look at these remains one by one.” They need to determine how people died; whether the causes and times of death are the same or different. Investigators need to overcome the chaos of war — and pressure from families who want to grieve and bury their dead — to build their case.

“For us, it’s slow and steady wins the race,” said Stroehlein. “That means collecting evidence that’s going to stand scrutiny in national courts and elsewhere.”

There’s a long history of victims of war crimes documenting their own suffering, with whatever technology was available. Videos smuggled out of Kosovo into Albania were “very helpful” in the late 1990s, recalled Williamson, who helped handle the case against former Serbian President Slobodan Milošević at the International Criminal Tribunal for the former Yugoslavia.

“These were people that had those clunky like VHS cameras,” Williamson said. “Now everybody has a smartphone and can do the same kind of thing.”

Yet investigators are still learning how to tap the full potential of user-generated evidence.  

Syria, “one of the first digitally captured conflicts,” shows the promise and pitfalls of documenting war crimes with social media, said Wendy Betts, director of eyeWitness, an International Bar Association project that collects verified images of potential war crimes through an app.

Social media helped “close the investigation gap that’s always existed between when the events took place … and the ability for professional investigators to get to the scene,” Betts said. In some cases, they highlight atrocities that would have slipped into history unreported.

At the same time, these images could also be easily manipulated, she said, making them difficult to use in court. Figures from the Syrian Archive of videos from social media show how laborious the verification process can be: Out of 3.6 million videos, only 650,000 have been analyzed — and just 8,249 of those have been deemed authentic.

Ukrainians are also producing a “huge body of footage, which is great,” Betts said. “But as we know, all of that’s going to have to be verified for it to play a role in these proceedings.”

Nonetheless, the role of social media at trial is growing.

“Whereas even like five, six years previously, they’d said the stuff is just way too untrustworthy to depend upon, all of a sudden you have these major warrants of arrest coming forward on the basis of this kind of content,” said Alexa Koenig, head of the Human Rights Center at the University of California, Berkeley.

Most notable among them: The International Criminal Court indicted a Libyan militia commander, Mahmoud Al-Werfalli, for killing prisoners based on cell phone videos on Facebook showing him committing or ordering the act. (He won’t be tried; he was killed in 2021.)

Apathy and immunity

There is one big reason war crimes investigations may yield solid evidence in Ukraine: The government in charge supports them. That’s in contrast to Myanmar, Syria and other hot zones, where the powers-that-be are the alleged perpetrators and have no reason to let outsiders poke around.

Nonetheless, Human Rights Watch’s Stroehlein was pessimistic about the power of social media’s instantaneous connection and awareness to prevent barbarism.

“Information is not the problem. Governments know when atrocities and crimes are happening in various places,” said Stroehlein (himself a fixture on lists of EU influencers on Twitter). “The problem is building the political will to actually do something about it in the short term, and then in the long term, having the structures of justice like the ICC that can help address those accountability issues.”

(While the EU’s member countries are all party to the International Criminal Court, the U.S. and Russia are not. While Ukraine isn’t a member of the court either, it has accepted the court’s jurisdiction for crimes committed on its territory since the beginning of the so-called Maidan revolution in November 2013.)

Interviewed by phone on Monday as he prepared to travel to Poland for the Ukraine inquiry, Williamson noted progress over his 25 years fighting war crimes.

“When I first started at the Yugoslavia tribunal, the idea that the court was ever going to do more than kind of prosecute a few low-level camp guards seem far-fetched,” he said. But that tribunal was able to bring in political and military figures including Milošević, Radovan Karadžić and Ratko Mladić. Iraq’s Saddam Hussein, Liberia’s Charles Taylor and Chad’s Hissène Habré were also convicted in special trials, though not in the International Criminal Court.

“This idea that heads of state are untouchable in these processes has gone away,” Williamson said.

Even if prospects for trying Putin or other senior Russian leaders look slim right now, he added, any potential indictment, either from the International Criminal Court or another country that generates an Interpol notice, would make travel pretty much impossible.

“It can be a very long process; it doesn’t provide maybe the immediate satisfaction that people are looking for,” Williamson said. Nonetheless, it’s important “to lay down these markers and show that there are consequences for these types of actions.”

In Ukraine, Arestovych said the government was determined to hold the Bucha perpetrators to account, no matter how long it takes.

“They will already be retired, getting their pensions, and we will keep finding them,” Arestovych said. “It is a matter of honor for Ukraine.”

Clothilde Goujard and Douglas Busvine contributed reporting.

CORRECTION: This article has been amended to correct the name of the court that tried former Serbian President Slobodan Milošević. It was the International Criminal Tribunal for the former Yugoslavia.

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