By Eric Vandenbroeck and co-workers

With adequate international support, such real-time documenting of human rights violations could have a more direct and consequential dimension in wars that are still unfolding. As the ICC warrant has made clear, Putin could end up in court, and prosecutors will be ready when he does.

In early March, senior officials from numerous Western countries met with international prosecutors in Lviv, Ukraine, for the United for Justice conference. Among other things, they discussed establishing a global center for prosecuting the crime of aggression. For the participants, it was the first step toward holding the Russian government accountable for invading the country. The conference was opened by President Volodymyr Zelensky and included many top legal experts, including the International Criminal Court’s chief prosecutor, Karim Khan, and U.S. Attorney General Merrick B. Garland.  After signing the agreement, Andres Parmas, the prosecutor general of Estonia, commented that “never before” have so many countries been determined to “really do something” about the crime of aggression. Notably, just days after the meeting, the ICC issued arrest warrants against Russian President Vladimir Putin and Maria Alekseyevna Lvova-Belova, a functionary in his government overseeing the forced removal of Ukrainian children to Russia.

However, an unprecedented effort to collect court-ready evidence is as important as this growing international resolve. In past wars, bringing perpetrators to justice has been hampered by the challenge of documenting crimes in ways that satisfy international legal standards of proof. Consider the Syrian civil war, a conflict marked by extreme brutality, including chemical weapons, rape, murder, torture, arbitrary detention, and the deliberate targeting of medical facilities and residential areas. One reason these atrocities are so well known is that they were recorded, on cell phones and broadcast on social media, by ordinary Syrians and journalists. Indeed, Syria’s war crimes are believed to be the most documented in history. Yet, years after these events, little of this documentation has been used in court, mainly because of the lack of political will to have an international court for Syria. Meanwhile, a mountain of film and witness statements in an office in Geneva—the International Impartial Independent Mechanism (IIIM) at the United Nations—might take decades to go through and, if it gets to court, will be subject to extreme scrutiny.

Ukraine promises to be different. Once again, the conflict has involved horrific atrocities, many of which have been extensively recorded in real-time. As of May 21, the prosecutor general’s office in Kyiv had recorded 88,500 incidents by Russian forces. But unlike in Syria and other recent wars, these crimes are being documented to amass evidence that can be used in courts. Since the war began, dozens of investigative journalists have been trained to become war crimes researchers, gathering images, interviewing eyewitnesses, and collecting other forms of evidence in locations across the country. And they are also working with legal experts to vet these findings and prepare them for submission to an international tribunal.

Of course, significant hurdles remain to prosecute Russia’s crimes in Ukraine, and much more needs to be done to bring them before a court. As Kyiv’s counteroffensive unfolds, raising the prospect of new atrocities coming to light in the reconquered territory, researchers must be ready to document what happened to the fullest extent possible—while the evidence is fresh. The coordinated approach played over the past year provides a template for how this can happen, but it requires significant resources and expertise.   Along with innovative efforts by European prosecutors and the ICC to pursue accountability against Russia, strong international support for war crimes research can help make Ukraine a watershed in how Western governments and international institutions hold aggressor governments to account.

 

Putin’s Torture And Terror

After more than 16 months of war, investigators have acquired an increasingly clear picture of Russian crimes. These include the massacre of hundreds of civilians in Bucha, on the outskirts of Kyiv, in the early weeks of the war; reports from formerly Russian-occupied areas such as Kherson, in the south, where Russian personnel plunged civilians’ hands into boiling water or pulled out their fingernails; and Izium, in the east, where hundreds of mass graves were found after the Russian retreat in September. 

The specific nature of these and other crimes and their connection to Russia’s war strategy is being established through the dedicated work of teams of Ukrainian and international researchers. The Reckoning Project—a nongovernmental organization devoted to evidence gathering in Ukraine that I co-founded with the writer Peter Pomerantsev and the Ukrainian journalist Nataliya Gumenyuk, and at which I serve as executive director—has deployed dozens of researchers too numerous locations across the country. In addition to documenting war crimes, the organization uses witness testimonies to counter Kremlin disinformation campaigns.

At the start of the invasion, criminal acts by Russian forces were often chaotic and disorderly and, according to witness accounts and other evidence, did not appear to be ordered from above. But a growing mass of testimony and other evidence from later stages of the war shows that attacks have increasingly followed specific patterns and that the soldiers involved seem to be acting under instruction. This is particularly true where paramilitary groups such as Wagner have been active. For example, in Kharkhiv and Mariupol, occupying forces carried out torture and other abuses over weeks, often using the same methods over and over. 

One of the most egregious crimes has been the deportation of children. Since the early summer of 2022, eyewitnesses began telling the Reckoning Project that Russian forces in Mariupol were rounding up Ukrainian children and sending them to Russia. In February 2023, the Yale Humanitarian Research Lab reported that more than 6,000 Ukrainian children had been taken to Russia and identified 43 different facilities in Russia that had been holding them. These children came from the Donbas and other areas that had fallen under Russian control. In March 2022, the mayor of Mariupol said that “hundreds” of local children had been taken to Russia during the Russian occupation of the city. Some were separated from their parents as families fled the city: parents were brought to so-called filtration camps—facilities used by Russian forces to detain and interrogate Ukrainians—and the children were bused across the border to Russia. Some were taken to the Far East; some traveled on as many as three airplanes. 

Some parents have been told that their children were being sent to summer camps in a safe area of Ukraine; instead, they were taken to the Russian Federation. Once in Russia, Ukrainian children have been forced to undergo Russian indoctrination. Some have been forced to give up their Ukrainian names and take Russian ones. They are then given “lessons” in Russian history. Not only is this process organized by the Russian government, but it is also not the first time that Moscow has pursued it. After the 2014 annexation of Crimea, the Russian government brought several dozen children from Crimea to Russia on a program called “Train of Hope.” Some of them are now believed to be serving in the Russian Army, according to Kateryna Rashevska, a human rights researcher. 

Russian forces have also targeted the heads of communities in many areas that have fallen under Russian control. To date, researchers for the Reckoning Project have recorded 20 testimonies from the leaders of villages and local communities who say they were detained and interrogated by Russian forces. These incidents have occurred not only in the Kherson region but also in Zaporizhzhia, Mykolaiv, and Chernihiv. Many of those detained were tortured in what appears to be an effort by Russian forces to send the message that no one in the community is safe. Other cases involving torture have shown similar levels of organization. During Russia’s occupation of Kharkiv, most interrogations by Russian forces started with the same pattern: confinement, ill-treatment, chaining people to chairs, and denial of food and medication. Then came severe beatings and electrical shocks applied to fingers, toes, or genitals—technique victims called “Calling Putin.”

Hundreds of other witness statements have recorded other forms of violence against civilians by Russian forces, including extrajudicial murder, sexual violence, or prolonged confinement and humiliation. Consider the case of Yahidne, a village northeast of the capital, where the entire population—360 people, including elderly individuals and small children—were held captive in a basement for a month in March 2022. According to victims’ testimonies, they had to sleep sitting up, and there were no toilets or ventilation; several elderly residents died. According to Svitland Oslavska, who interviewed many victims, “The Russians did not allow the dead to be buried immediately, and when they finally did, they fired on the funeral.”

 

Crimes Without Punishment

Russia’s campaign of terror against Ukrainian civilians may be driven at least in part by a sense of impunity. As the Kremlin is well aware, Russians committed terrible abuses during the Chechen wars, the wars in Georgia in 2008, and the Syrian civil war, with few international repercussions. Having faced hardly any accountability for its actions in the past, Russia’s military leadership may calculate that it can get away with similar behavior in Ukraine.

As the record of recent conflicts shows, most people who do wicked things in wars never reach The Hague. During the 1990s, rapists who victimized people in camps in Eastern Bosnia—some of whom were violated as many as 16 times a day—never faced justice. In Syrian dictator Bashar al-Assad’s prisons, some 60,000 people were killed between 2011 and 2016 alone, according to the Syrian Observatory for Human Rights. The thousands who survived live with unspeakable trauma, and their tormentors remain unpunished. Even in the case of the Rwandan genocide, the worst perpetrators did not reach the dock for more than 20 years; others are still at large.

Part of the problem lies in the languid pace of international justice. The International Court for the Former Yugoslavia was set up by the UN Security Council in 1993 in response to “grave crimes” and “horrific breaches” of the Geneva Convention. But despite the murder of hundreds of thousands of people and systematic rape and abuses in the Balkan wars, the long-running ICTY managed to sentence only 90 war criminals, with many more suspects identified but not convicted. Similarly, during its 21-year existence, the International Criminal Tribunal for Rwanda produced a mere 61 convictions and 14 acquittals—in response to the orchestrated killing of close to one million people. Indeed the outcomes in both cases would have been different if civil society actors had been trained to collect evidence and identify perpetrators while the wars were still raging and before witnesses aged or died.

 

Ukraine’s New Truth-Tellers

Given this history, it is unsurprising that many observers remain skeptical about international justice for war crimes—and that many leaders do not see such tribunals as a deterrent. Even with an ICC arrest warrant hanging over his head, Putin may calculate that the wheels of international justice move too slowly or are too haphazard to pose much of a threat. Having a seat on the UN Security Council guarantees that Russia can block resolutions on Ukraine, and Russia is not a member of the ICC. But such assumptions miss the extraordinary developments that have taken place since the war began.

On the matter of holding Russia to account, however, it is already clear that the international approach to Ukraine is different. Not only has there been extensive international support for Zelensky’s fight against Russia, but dozens of countries have also supported Ukraine’s quest to seek international justice against the Russian leadership for the crime of aggression. The ICC has also shown a willingness to pursue justice against Putin himself. And human rights organizations have been rigorously gathering evidence on the ground since the early stages of the war. Such efforts set Ukraine apart from other wars—including the one still roiling in Ethiopia, where an estimated million people have died and for which little or no accountability has been possible. 

But crucial to these efforts is how the evidence is gathered and verified. For example, Ukrainian journalists who work for the Reckoning Project have been trained by international legal experts and trauma specialists from the Dart Center for Journalism and Trauma at Columbia University. The aim is to learn to take witness statements with the precise details needed to hold up in court without retraumatizing the witnesses. For example, journalists must learn to take statements not prompted by leading questions—a pitfall for many reporters. And often, dozens of statements will need to be taken concerning one incident—for instance, the horrible attack on the Kramatorsk train station in April 2022, which resulted in more than 60 deaths and hundreds of injuries. Showing the extent to which the Russian strategy has not changed, on June 27, 2023—more than a year later—a Russian missile hit Kramatorsk again, this time a popular pizza restaurant, killing more than a dozen people and injuring 60. Tragically, one of the victims was the young Ukrainian writer Amelina Victoria, working on a book about Ukrainians documenting war crimes.

As a result of these evidence-gathering efforts, researchers have assembled an extensive and systematic record of war crimes in Ukraine and begun to assemble their findings in ways that can directly lead to prosecutions in court.

 

Evidence Brings Consequences

As the legacy of past conflicts has shown, it will be crucial for Ukraine to address the issue of war crimes as it seeks to rebuild its society and defend its democracy against future threats. There are various forms this process could take. Many countries have used truth commissions: the world has seen more than 40 since 1983. Kyiv and its international partners may also be able to establish a special tribunal, such as a new international court for the crime of aggression, a concept that many international lawyers and prosecutors have now endorsed. It would be the first of its kind since the 1945 Nuremberg trials. And the government can also pursue accountability in national and regional courts in Ukraine and through the International Criminal Court. 

Yet if these efforts are to be successful and reach timely outcomes, having hard evidence already gathered, organized, and vetted in advance will be essential. Consider the 2002 capture in Belgrade of Serbian leader Slobodan Milosevic, the architect of ethnic cleansing in the Balkan wars. Hardly anyone had believed—least of all Milosevic and his cronies—that he would end up in The Hague, and the arrest was seen as a watershed for international justice. But Milosevic died in prison four years later amid stalled courtroom proceedings. Justice was never delivered. In some cases in the former Yugoslavia, the delay was caused by the retrospective search for evidence. Often, crucial pieces of the puzzle were missing. By collecting prosecution-ready evidence while the war is still unfolding, Ukrainian researchers are seeking to break this cycle.

The road to bringing Russian perpetrators to justice is still long, and there remain significant challenges to setting up an international tribunal for Ukraine. Nonetheless, by changing how evidence is gathered and vetted, researchers have already established a new approach that can be used for other conflicts. With adequate international support, such real-time documenting of human rights violations could have a more direct and consequential dimension in wars that are still unfolding. As the ICC warrant has made clear, Putin could end up in court, and prosecutors will be ready when he does.

 

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