Fadel Senna/AFP via Getty Images
As Ukraine investigates possible Russian war crimes following the full-scale invasion of Moscow seven weeks ago, the United States is stepping forward to help.
The US Departments of State and Justice are working with European allies to support Ukraine’s attorney general, who is investigating on the ground.
“It is extremely important for the sanctity and integrity of history to document these crimes, to ensure that we have preserved and authenticated the evidence generated at the various crime scenes around Ukraine,” said Beth Van Schaack, U.S.-wide Ambassador for Global Criminal Justice.
It’s also important, Van Schaack told NPR in an interview, “for the sake of the victims and survivors so they know the international community has seen what they’ve been through, called it out for what they’ve been through. it is, has ratified their very legitimate demands for Justice.”
US support for Ukraine’s investigative efforts takes different forms. US officials this month met with their European counterparts to develop a plan to collect evidence on Ukraine.
At the same time, Van Schaack said, the State Department is funding a group of outside experts with experience in prosecuting war crimes who directly assist Ukrainian authorities.
One of the group’s leaders is Clint Williamson, former US Ambassador at Large for War Crimes Issues.
Before the war began, his group was helping Ukraine investigate possible war crimes after Russia took control of Crimea and Donbass in 2014. After the invasion of Moscow in February, his team pivoted to focus on what might happen now.
Ukrainian authorities, he said, have experience investigating war crimes, but not “on a large scale and certainly in the midst of a real armed conflict”.
“You are potentially looking at command responsibility cases that can go all the way up to senior political and military leadership, so it just becomes a much more complex investigative and prosecutorial approach,” he said.
American and European allies are trying to help bridge this gap by providing expertise, advice and support. Williamson’s group, for example, brings together war crimes prosecutors, investigators, analysts, forensic experts — all with extensive experience in war crimes cases — to help Ukraine.
There are also so-called mobile judicial teams of international experts to support Ukrainian investigators and prosecutors in the field.
Linking crimes to the chain of command
The simplest aspect of a war crimes investigation is similar to a garden type criminal investigation: what happened? When did it happen? Who are the victims ?
The most difficult aspect is often referred to as “evidence of nexus”, which links the crimes to the chain of command. This involves, for example, determining which military unit was in a particular place at a particular time, who was the commander at different levels up to the highest military and political command, depending on the scale and nature of the crimes.
This is where outside experts, and their experience of more complex cases, can help the Ukrainian authorities.
All of these efforts to document possible Russian crimes now aim to hold the perpetrators accountable in the future.
It is unclear at this stage where a possible war crimes trial would take place, although Van Schaack said there were several options, including the International Criminal Court, which has opened its own investigation into d possible war crimes in Ukraine. The United States is not a party to the court, which could complicate matters on the American side, although the Biden administration welcomed the ICC decision.
National courts are another option, and Ukrainian courts would obviously have jurisdiction, while courts in European countries whose laws allow national authorities to prosecute international crimes could also provide venues.
The end result can be a mix of international and domestic, Van Schaack said.
The Nuremberg Tribunal set up by the victorious Allies after World War II dealt with defendants whose crimes had no geographical location, while local courts and military commissions dealt with individuals whose crimes were more localized .
“So you can imagine an arrangement like that where the ICC takes the bigger fish and the local courts in Ukraine deal with crimes committed in their more local jurisdiction,” she said.