From war crimes to conviction – what it takes to bring the Bucha killers to justice – POLITICO

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There will be retribution for Bucha, Ukrainians vowed after the discovery of mass graves and bound bodies as Russian troops retreated from the northern suburbs of Kyiv.

“We will identify them all. We have a very clear task.” called Top Presidential Advisor Oleksiy Arestovych.

Arestovych even went so far as to compare the forthcoming hunt for the Bucha culprits to the Mossad crackdown on the Black September terrorists who murdered Israeli athletes at the 1972 Munich Olympics. “There will be precise retribution. No one will escape,” he said.

In reality, however, the route to bringing President Vladimir Putin or other senior Russian officials to justice will likely be quite different — part of a slow, difficult forensic process under full international legal scrutiny, with little prospect of immediate conviction.

Putin has already been convicted in the Court of Public Opinion. Judges starting US President Joe Biden found him guilty of war crimes, influenced by first-hand accounts and smartphone videos detailing Russian atrocities. Private satellite images have already been used refute Moscow’s claims that the Ukrainians placed the bodies in Bucha after the Russians left.

Legal experts say that Ukraine, where about 70 percent of the population had access to the internet before the invasion, is a “test case” for user-generated evidence. Prosecutors from the International Criminal Court have been on the ground in Ukraine for more than a month investigating possible war crimes since November 2013 as well as those taking place in real time and documented by victims’ smartphones.

Still, social media posts are no substitute for the forensics, intelligence, and documentation needed to prove crimes on the battlefield. Even if the metadata is verified and investigators can demonstrate, the videos show what they say — that a clip of, say, a soldier shooting a civilian in a bare room was from Kharkiv in March 2022, not Palmyra in March 2016 – actually using it in court is another matter.

And when it comes to chasing bosses, images rarely provide clarity as to who is actually in charge.

The process of linking foot soldiers to leaders “could go all the way down the chain of command to some sort of ministerial level, top generals and even President Putin,” said Clint Williamson, a veteran US war crimes prosecutor who now heads the common EU – US investigation in Ukraine. But while the Russian military’s direct command and control structure might make that connection fairly easy, Williamson said, “the whole process of filing documents and bringing charges can be very, very lengthy.”

CSI: Warzone

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

A Human Rights Watch report published on Sunday documents 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 Russian soldiers left Bucha, that outside observers were able to enter the city and begin the “gruesome work” of documenting the damage, said Andrew Stroehlein, European media director at Human Rights Watch.

For something like the apparent mass grave found in Bucha, the key is to secure the site and bring in forensic experts “to examine these remains individually.” You need to determine how people died; whether the causes and times of death are the same or different. Investigators must overcome the chaos of war — and pressure from families wanting to mourn and bury their dead — to build their case.

“We win the race slowly and steadily,” said Ströhlein. “That means gathering evidence that stands up to scrutiny in national courts and elsewhere.”

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

“These were people who had VHS cameras that were so clunky,” Williamson said. “Now everyone has a smartphone and can do the same.”

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

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

Social media helped “close the investigative gap that always existed between the time of events … and the ability for professional investigators to get to the crime scene,” Betts said. In some cases, they highlight atrocities that would have gone unreported in history.

At the same time, these images could also be easily manipulated, making their use in court difficult. figures from the Syrian archive of videos from social media shows how tedious the verification process can be: Out of 3.6 million videos, only 650,000 were analyzed – and only 8,249 of them were classified as authentic.

The Ukrainians also produce a “huge amount of footage, which is great,” Betts said. “But as we know, all of that needs to be verified to play a role in this process.”

Nevertheless, the role of social media is growing in the process.

“Whereas five, six years ago people were saying the stuff was just way too untrustworthy to rely on, suddenly there are these important warrants based on this type of content,” said Alexa Koenig, director of the Human Rights Center at the University of California, Berkeley.

Most notable among them: The International Criminal Court charged 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 will not be tried; He was killed in 2021.)

apathy and immunity

There is one important reason why war crimes investigations in Ukraine can provide solid evidence: the government in charge supports them. This is in contrast to Myanmar, Syria and other hot zones, where those in power are the suspected perpetrators and have no reason to let outsiders poke around.

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

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

(While the member countries of the EU are all contracting parties to the International Criminal Court, the US and Russia are not. Although Ukraine is also not a member of the Court, it has had the Court’s jurisdiction over crimes committed on its territory since the beginning of the year accepts the so-called Maidan revolution in November 2013.)

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

“When I first started at the Yugoslavia tribunal, the idea that the court would ever do anything more than prosecute a few simple camp guards seemed far-fetched,” he said. But that The tribunal could consult political and military figures such as Milošević, Radovan Karadžić and Ratko Mladić. Saddam Hussein of Iraq, Charles Taylor of Liberia and Hissène Habré of Chad were also convicted in special trials, but not before the International Criminal Court.

“This notion that heads of state are untouchable in these processes is gone,” Williamson said.

Even if the prospects of bringing Putin or other senior Russian leaders to justice currently seem remote, he added, any possible indictment, either from the International Criminal Court or any other country producing an Interpol memo, would make travel all but impossible do.

“It can be a very long process; it may not provide the immediate gratification that people are looking for,” Williamson said. Nevertheless, it is important “to set these markers and show that such actions have consequences”.

In Ukraine, Arestovych said the government is determined to bring Bucha perpetrators to justice, no matter how long it takes.

“They will already be retired and on their pension, and we will continue to find them,” Arestovych said. “It’s a point of honor for Ukraine.”

Clothilde Goujard and Douglas Busvine contributed reporting.

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