On Monday, an exhausted group of Russian soldiers were overcome with emotion and told journalists in Kyiv that the government had betrayed their country by sending them into a conflict under false pretenses. “I feel shame that we came to this country,” Lieutenant Colonel Astakhov Dmitry Mikhailovich Camera. “We will go to jail or whatever we deserve.” Hours later, Ukraine’s President Volodymyr Zelensky bluntly stated what he thought they deserved. “All people who came to our land, all people who gave those orders, all soldiers who were shooting—they are all war criminals,” He spoke to ABC News.
But experts say that proving Zelensky’s claim, and convicting people of war crimes—from frontline soldiers to President Vladimir Putin—will likely take years, with an uncertain outcome, despite the horrific violence. For indictments to stick in court, hard evidence will be needed— and not the kind of photo and video evidence that you might expect. The most important place to look is actually in soldiers’ pockets, says Bill Wiley, founder and executive director of the Commission for International Justice and Accountability, who has investigated conflicts for 25 years, in the Balkans, Iraq, Syria, Libya, and elsewhere. The “pocket debris,” as he calls it, includes cellphones and computers, written instructions from commanders, and battlefield maps.
All of these are crucial to proving intent, the key issue in any indictment for war crimes. International laws prohibit the use of violence against civilians, but it allows civilians to die in conflict, which could be used as an indemnity for Russian soldiers and their commanders.
He says that there’s no need to waste time in preserving and collecting evidence from potential tampering, while Ukraine’s borders remain open and Russia does not control the country.
“The key is to get started now,” he says. “It is much easier to establish now, than when the net closes in more and more in Ukraine.”
It is not the right way to show responsibility
Ukrainians were acutely aware from the beginning of their war crimes trials that they needed to collect evidence. Ukraine’s foreign minister Dmytro Kuleba tweeted the day after Russia invaded that the government was collecting details of Russian strikes, including on a kindergarten and an orphanage, to “immediately send to the Hague,” referring to the International Criminal Court, or ICC, which is located in the Dutch capital. “Responsibility is inevitable,” he wrote. The ICC actually opened.An investigation into war crimes On February 28,
Yet while Kuleba was talking as a politician fighting for his country’s survival, that “responsibility” might not be provable in court. “There is some pretty nasty-looking stuff which I suspect amounts to a crime, but we don’t know for certain,” Wiley says. “It is painfully difficult building cases like this.”
In the days since Russia invaded on February 24, Wiley, who has sat glued to the coverage, says he has watched regular Ukrainians make the same mistake as Syrians did during 10 years of war: Shooting hours of cellphone video, of bombed-out schools, houses, and apartment buildings—in the belief that they surely offer proof of war crimes. Ukraine’s government has also deployed teams to capture footage, in part to create a historical record of the war, as well as to gather trial evidence. “This is more about making a record of Russia’s crimes,” military videographer Serhiy Lysenko The Washington PostWhile filming remnants of an attack house in south Kyiv where six were killed, he said: “We do believe in The Hague.”
According to Wiley, such footage can be almost ineffective during a trial. “At the end of the day, it is 99.9% of no use or relevance to a criminal case.”
A treasure trove of “pocket debris” could well be lying on the dead bodies of soldiers left on the battlefield, or in the uniforms of captured soldiers like Mikhailovich. According to the U.S., Tuesday’s estimate was that Between 2,000 to 4,000 RussianIn two weeks of war, soldiers died. In two weeks of war, soldiers were killed.
Wiley has been investigating the Syria conflict, and the terrorist campaign of the Islamic State or ISIS. He is convinced that Russian officers in Ukraine have critical supplies, such as code books or the equipment necessary to decrypt encrypted messages. Lower-ranking Russian soldiers are likely to have access to a wealth of information via their smartphones. The phones can track their movements and allow for photos and video. ISIS appeared far more tech-savvy than the Russians, he says, “but even the thickest soldier has all manner of photos on his phone, giving us a sense of who else was and is in the same unit.”
This information could be being captured, or intercepted. “The Ukrainians assuredly have directions from above to be collecting this stuff and passing it to intelligence analysis cells,” says Wiley, who once served as an infantry captain in the Canadian military. However, he thinks they might not know how vital the material is to a war crime trial in the future.
Based on his experience investigating the Syrian war—where Russia’s military provided essential firepower for the regime—Wiley believes Ukraine ought to be able to intercept Russia’s communications. “Russian communications, a lot of it, is not encrypted. It is pretty surprising,” he says. “On the battlefield a lot of the kit is very old.”
There is a possibility that communications are already being captured. Antony Blinken, U.S. Secretary Of State, stated CNN Sunday: They had seen “very credible reports” of war crimes, and they were gathering all the details. “We are documenting everything,” he said. Wiley’s organization CIJA, launched in 2012, is funded by the U.S., U.K., Canadian and European governments, and he says he has already advised donors it would cost the group about €5 million a year to investigate the Ukraine war.
Similar to cellphone footage, Wiley says that there is also limited use in a trial for the testimony from refugees who have fled the war zones, and who human-rights organizations are debriefing across Ukraine’s borders. Those heartbreaking stories will not likely bolster the prosecution’s case in a war-crimes trial. Collecting the information, says WIley “is a very, very small portion and fairly easy to do,” he says.
Most of the work involved in assembling a command chain from the crime to its original order. In theory, this will lead to Putin. Given the Russian president’s overwhelming grip on the war, that chain might be far easier to trace than in other wars, according to some experts. “Very little is going to happen in this theater on the Russian side that would not be traceable right up the chain of command, to the top of the Russian state,” Stephen Rapp, who was the U.S. war-crimes envoy between 2009 and 2015, told Politico last week.
To win an appeal at the Hague, you will need to provide detailed documentation.
Protection of evidence
Even as rockets bomb cities and people flee to safety, all physical evidence needs to be meticulously recorded and safeguarded from tampering. It is also important to keep digital evidence in a secure, central location. Wiley says Ukraine should immediately digitize all paper records they have found, and create several electronic, encrypted back-up systems, in case Kyiv falls to Russian control; he admits that “in the current circumstances, this will be difficult.”
In fact, even gathering the evidence could be complex and exceedingly dangerous, as Wiley’s organization learned in Syria. Over many years, CIJA was able to smuggle about 1.3 Million pages of documents out of Syria. The mountain of details helped it piece together the command structure of the war, by finding the initial orders—essential in identifying war criminals. The military campaign against the terrorists also seized a number of cellphones and computer computers as well as about 50,000 pages ISIS documents. “The key is to be able to find the captured originals,” Wiley says. “We need the primary sources.”
That entire archive is now in CIJA’s secure vault, in a secret location in Europe, and there are multiple back-up hard drives of the material. The documents have become a key source of evidence for about 15 countries’ law-enforcement authorities in criminal prosecutions, for example against members of ISIS, according to Wiley.
Ukrainian officials could try to cover up what they’ve found to avoid revealing what to Russia. But Wiley suggests Ukraine’s government should nonetheless immediately set up a secure storage system for evidence. Wiley worries that evidence may be lost should Kyiv fall to Russian troops. “Even if they are collecting it, where is it going? Ukrainians are fighting for their lives,” he says.