Amassing evidence of war crimes in real time ‘critically important,’ U of T expert says

As war rages in Ukraine, investigators are compiling evidence to determine whether war crimes have been committed in cities like Bucha, where hundreds of civilians were found shot.

Mark Kersten (photo by Dhoui Chang)

Mark Kersten, a fellow, researcher and consultant based at the Global Justice Lab within the Munk School of Global Affairs & Public Policy, focuses on the investigation and prosecution of international crimes.

He says investigators will draw on all kinds of evidence – from cell phone footage to abandoned military equipment – to reconstruct what happened and determine who should be held accountable.

“It’s critically important that we do everything we can to investigate these crimes in real time,” Kersten says.

He recently spoke to U of T News about how international criminal investigators operate, Canada’s role and whether the perpetrators of war crimes are likely to ever stand trial.

What kind of evidence are investigators gathering to determine if war crimes have been committed and how do you prove such a case?

I’m not in daily contact with investigators. But good investigators are opportunists in the sense that what they see as evidence of mass atrocities will change depending on the context. They need to follow a trail of breadcrumbs, essentially, and what counts as a good piece of evidence will reveal itself as they do that.

I think there’s a lot of different things they'll be looking for. A big part of it is digital evidence. These atrocities are happening in real time and there are people recording these atrocities on camera as they happen.

There are a bunch of different organizations that are ensuring that the evidence is uploaded, preserved and authenticated.

Then you have witness testimony. People who are fleeing Ukraine or who are still there may potentially have first-hand evidence of crimes that happened in Bucha, Mariupol and elsewhere. Investigators will want to interview these witnesses as soon as possible because, as with all witnesses, memory changes over time.

Investigators will also be going to communities where atrocities are said to have taken place to examine physical evidence: bodies, the position of bodies, mass graves. For example, we have reports and images of mass graves in Bucha. Investigators will study the soil, its composition and recent weather patterns to determine exactly when the grave was dug – maybe not to the hour, but probably to the day. If they can do that, then investigators can say with confidence that it was clearly made by the Russians because on that day Bucha was exclusively under Russian control.

Finally, other bits and pieces of evidence may arise. An abandoned tank may contain a cell phone, computer or documents that help establish a command structure. This may enable investigators and prosecutors to identify the leaders who are most responsible for these crimes.

Who will potentially be held accountable for these alleged atrocities?

It’s important to note that Ukrainian authorities, through the office of the prosecutor general, are themselves investigating war crimes and crimes against humanity. They may be interested in prosecuting some of the foot soldiers who they have in custody.

But when looking at the kind of investigations and potential prosecutions conducted by bodies like the International Criminal Court (ICC) or states like Lithuania or Germany – or potentially even Canada – they’re ultimately focused not on low-ranking soldiers but people who are at least mid-level commanders or maybe more senior.

Of course, that’s tricky because many of those people have never set foot in Ukraine during the war. That goes back to trying to find as much evidence as possible and establishing a pattern of behaviour and mapping it out against what we know about some of the leaders in Moscow.

Prosecutors may develop different kinds of strategies to get to those higher-ups. It’s very possible that low-ranking perpetrators will be offered a plea agreement and lesser charges carrying a lighter sentence in exchange for testimony that will help prosecutors establish a chain of command to target more senior officials.

Is it a similar strategy to the one often used by prosecutors targeting white-collar criminals?

Yes. Investigators and prosecutors working on international crime are not trying to reinvent the wheel. They’re not investigating crimes in ways that would be completely confusing to domestic investigators. They will use similar strategies, but just adapt them to a highly complex and much more difficult context.

What's Canada's role in these investigations so far?

Initially, it was exclusively European states that offered money and staff to the ICC in support of its investigation as well as personnel – investigators and legal officers.

Canada recently offered the ICC seven additional RCMP officers – they already had three working with the court – to work on Ukraine.

I want to be clear: That’s a very welcome development. But there are serious concerns internationally, in Canada and, indeed, in The Hague that Canada and other Western states are only offering this kind of support when it comes to atrocities committed on European soil and is unwilling to do the same when it comes to atrocities committed in Syria, Palestine, Myanmar, Yemen and other places. This isn’t whataboutism, but I think we need to listen to voices who are asking “what about us?” Why do they not get such commitments to justice?

There’s a real risk that Canada’s actions – unless it’s sustained across other contexts – will feed into the systemic racism and structural racism of international justice and international relations.

In addition to the RCMP officers, Canada has also announced that it is conducting its own structural investigation into the conflict in Ukraine. These investigations aim to understand the context of the conflict and how war crimes are perpetrated, as opposed to trying to find specific individuals who are responsible for those crimes.

I mentioned that Canada has a mixed record when it comes to supporting international justice. It does it in some places but not others. Not unlike other states, Canada has consistently attempted to ensure that the ICC's budget remains minimal despite asking it to do increasing amounts of work. Hopefully, Ottawa’s commitment now, in the context of Ukraine, suggests a more significant shift in policy regarding international criminal law and justice.

What’s the likelihood that Russian officials – or possibly even President Vladimir Putin himself – could see a day in court?

I think the only honest answer to that question is: we don’t know. No one does. I would be very wary of any kind of prognostication that this will happen, or if we try hard enough that eventually we’ll succeed.

What we do know is that if we don’t investigate these crimes now – if we don’t collect and preserve evidence, if we don’t interview witnesses who may have knowledge of atrocities and may have witnessed these crimes taking place first-hand – and Vladimir Putin ends up arrested and before judges at the ICC, it would be very hard to know what case we have against him, other than a rhetorical one.

It’s critically important that we do everything we can to investigate these crimes in real time.

What consequences could Russian leaders potentially face upon conviction?

The maximum penalty under the Rome statute of the ICC, if I recall correctly, is 50 years. So, if Vladimir Putin surrendered to the ICC and was convicted, he would die in prison. Others would face varying prison sentences. It’s important to know that if they were surrendered to the ICC, they would be treated with all the human rights obligations that are provided to everyone, including defendants of alleged and horrific international crimes.

What are the chances that Putin would surrender himself to the ICC and face the rest of his life behind bars?

Of course, it’s unfathomable but there were instances where people have said it was impossible for a president to ever be prosecuted – let alone convicted of international crimes – but it ended up happening. It happened to Slobodan Milošević in Serbia and with Hissène Habré, the former dictator of Chad.

International criminal law is a very strange, complex beast. Because of that, it produces strange and complex outcomes.

I think it’s important that people manage their expectations and refrain from saying justice is likely to happen tomorrow, but it’s also not impossible that it will happen eventually. It’s also important to keep in mind that there is justice in pursuing accountability itself. It communicates to victims and survivors that they and the harms they experienced matter.

There are also allegations of Ukrainian forces shooting Russian POWs, so is the Ukrainian army also being investigated?

It’s an important question. There are allegations of violations of the laws of war and international conflict by Ukrainian forces and, for sure, there should be an investigation into any abuse of Russian POWs by Ukrainian forces. The hope is – and right now I think it's still a reasonable one – is that instead of having the ICC investigate these atrocities, Ukrainian investigators and prosecutors in the military and Ukrainian justice system can and should be able to do these investigations themselves and hold perpetrators to account.

This is critically important for the Ukrainian military and for its justice system. If they do that, it signals they’re serious about these war crimes not happening, even in the context of such a horrific act of aggression by Russia.

Secondly, if Ukraine conducts these investigations then there’s no basis for the ICC to act because it only acts where states are not investigating these crimes or unable and unwilling to do so genuinely.

U.S. President Joe Biden has already labeled Vladimir Putin a "war criminal." What are your thoughts on that?

Factually, he's absolutely correct. Putin didn’t have to do anything in Ukraine this year to prove he was a war criminal. He’s committed war crimes in Chechnya, Georgia, in Ukraine since 2014 and, of course, in Syria with the use of chemical weapons and other horrific abuses of civilians in that country.

Others are saying that maybe it’s not ideal to call Putin a war criminal when we still have to negotiate with him. I don't know how much Putin actually cares about being called a war criminal. He’s been called that for a long time. War crimes are his calling card. But I think it’s important to be mindful of the effects of rhetoric from leaders like Biden affecting potential peace negotiations.

Can you explain why it’s harder to prove genocide than other crimes against humanity?

The reason is that it requires specific intent, or the intention on the part of perpetrators, to destroy a particular group – be it national, religious or ethnic – in whole or in part.

That kind of mental element -– the mens rea – has to be matched with an action. It’s not enough to establish that Russian forces killed hundreds of people in a village like Bucha. There needs to be the mental element – the specific intention – of killing those people to destroy the Ukrainian people in whole or in part.

There is rhetoric from Russian state media and even the Kremlin that suggests the violence could be genocidal. This includes the ideas professed by Putin before the war that Ukraine needs to be “de-Nazified,” and that the Ukrainian nation never really existed.

However, it’s unclear – at least so far – that the violence against Ukrainian civilians at the hands of Russian forces is specifically animated by a desire to destroy the Ukrainian people. Until that intention can be shown, the claim of genocide can't be found in a court of law.

There’s a really understandable desire to claim that genocide has happened because people tend to think of it as the worst crime of all – “the crime of all crimes” as it’s sometimes called. Despite popular belief, that’s not true in international criminal law, which doesn’t have a hierarchy of crimes with genocide being the worst.

Genocide is particularly egregious because of what it does to a particular group. The Holocaust and Rwandan genocide come to mind.

Crimes against humanity are intellectually at their core the opposite. They’re not egregious because of the intention to destroy a particular group; they’re egregious because they’re so outrageous to our conscience that when they’re committed against people anywhere they are a crime against all of humanity collectively. That’s important to remember. We don’t need to get into a race or competition to reach for genocide. Crimes against humanity are horrific in and of themselves.