Previous wars were different. People fought differently. At first, hostilities lasted for years, and only after they ended (or at the end) they began to remember the horrors of war and investigate the most systematic and large-scale violations of the laws and customs of war – to look for witnesses, victims, restore the circumstances of the event, identify the perpetrators, and prove their guilt.
At that time, the fastest way to transmit information was radio, and the most effective way was paper newspapers and leaflets. In previous wars, it was possible to hide or distort the circumstances of war crimes. Now it is not. We live in the age of information – in conditions of total access to information. On the one hand, information about the crimes committed, as well as photos, videos, and audio evidence, are posted on the Internet almost instantly. On the other hand, we see distortion of information and misrepresentation of facts – information and psychological operations as a method of warfare.
However, it is not so much the possession of information as its effective use that is crucial. The role of the Armed Forces of Ukraine (hereinafter referred to as the AFU) in this context, the need for and opportunities for development will be discussed below.
The Russian-Ukrainian war is a new reality.
Our current war with the Muscovites is taking place in a completely different – new – reality. This reality can be defined by the following features.
- Information about war crimes is recorded by our state and its agents, as well as by public organizations and concerned citizens directly during the hostilities and immediately after their completion, in most cases immediately.
- Information about war crimes is recorded not only by Ukraine, but also by the enemy, as well as by other foreign states (partners and not so much), governmental and non-governmental organizations, including international ones.
- Information about any event in the war appears on the World Wide Web in a matter of seconds and instantly becomes public. The state and its actors are forced to immediately show their reaction to almost every case, or at least to every illustrative case. There is no option to “ignore” such information. The reaction involves at least confirming or denying the event itself, its details, consequences, organizers and participants, and giving a balanced military, legal, and political assessment of the event and the role of specific individuals in it.
- Most evidence of war crimes is electronic/digital. Investigators are widely and actively using tools that were reluctantly recognized a few years ago: enemy documents, drone video, electronic warfare data, information from gadgets captured on the battlefield, etc. The personal data of criminals is established through social networks, media sites, government and other institutions, and other sources.
Witness testimony as evidence plays an important, but different, role.
Not everything gets into the lens. In large data sets, some information that is already available is sometimes lost. Not all data can be quickly linked to each other. In such cases, even a small clue is provided by a witness. Their testimony guides the investigator in finding other sources of evidence. A witness is the key to the digital world.
Example. Only by collecting and analyzing the testimony of more than 300 witnesses to the atrocities in Bucha the police managed to identify not only specific occupation units but also specific criminals. In some cases, the perpetrators were identified through witnesses’ descriptions of certain fragments of the perpetrators’ appearance. Investigators later confirmed this data with digital evidence. There were also cases where witnesses and victims of crimes provided the investigation with photo and video materials important for proving war crimes. Thanks to the communication with potential witnesses that the police have built up, investigators are collecting digital evidence even from people who are currently abroad.
However, we emphasize that war crimes have to be disclosed to a large extent thanks to digital/electronic data.
- There is almost no time gap between the event of a war crime and the start of a full investigation. The investigation of these crimes takes place directly during the war. The Russian-Ukrainian war is an example of a war where the country that is the victim of aggression not only collects information about war crimes but also investigates them quite successfully. Some of our law enforcement officers are involved in combat missions. However, the system itself has not been destroyed by the Russian invasion, but continues to function: investigators investigate war crimes, prosecutors provide procedural guidance, and judges review these cases.
- The state has begun to actively use the procedure of special pre-trial investigation and trial in the absence of the accused.
- The International Criminal Court has launched an investigation into war crimes committed in Ukraine, which is certainly an important milestone in recent history.
Dimensions of the war.
The AFU and other Ukrainian Defense Forces are the mainstay of the fight against Muscovites and Muscovy. It is our Armed Forces that mostly destroy the enemy.
However, the war has long been more than just a military dimension. The battle against evil is taking place in the political, diplomatic, legal, information and other spheres. Only by combining and synchronizing efforts in all dimensions of the fight will we be able to withstand and defeat the Muscovites with the least loss of human resources. The effective activity of Ukrainian politicians, diplomats, and lawyers allows the country to convince the international community and receive unprecedented support.
To fight on the diplomatic, political, and legal fronts, we need the appropriate tools inherent in this field.
The security arguments are certainly important for successful negotiations. We, Ukrainians, are defending the borders of the civilized world with our lives. As J. Kirby noted, the US goal “is to strengthen NATO’s eastern flank so that we can deter any aggression, any potential aggression from Russia and Putin.” And the demonstration of the combat capability of the Armed Forces of Ukraine, which managed to stop and repel the “second army of the world” at the first stage of large-scale aggression, and then conducted a series of successful offensive operations, is the main, but not the only, argument for foreign countries to support Ukraine.
Along with the security arguments, we are actively using arguments of a different nature – the sensory ones. Please note that every foreign delegation necessarily visits Irpin and Bucha. The horrific crimes of the Muscovites and their scale justify the justice of our struggle and the nobility of our partners’ support. The proven facts of Muscovites’ war crimes in Ukraine are powerful arguments for diplomats, politicians, and lawyers. Each properly identified and recorded fact of a crime increases our ability to convince our partner countries to continue supporting Ukraine and increase its nature and scope.
We convince our partners with established, verified, and confirmed evidence of Muscovites’ crimes – in fact, the materials of criminal proceedings. In other words, documents with legal opinions. We have already proven that Ukraine is not Russia, that we are different. As the head of the department at the Institute of World History of the National Academy of Sciences of Ukraine, S. Tolstov, stated: “Western politicians have finally begun to recognize the fierce antagonism and incompatibility of the goals, intentions and nature of the political systems of Ukraine and Russia, which have become the true cause of Russian aggression and an obstacle to achieving mutually acceptable compromises.”
Intelligence data and beyond
The nature of the war today is such that it is the AFU and other paramilitary formations that often possess large amounts of information important for the investigation of war crimes. Information that is essential for determining the incident, the circumstances of the crime and the perpetrators is often only within the area of responsibility of the AFU.
Such information can at least include
- The name of the enemy unit that was stationed at a particular time in a particular place where the war crime was committed;
- data on the commanders and personnel of these units;
- information about the person who made the criminal decision and the content of this decision;
- video recordings of the crime itself;
- radio and telephone intercepts, etc.
This is mostly intelligence information that commanders need to take the proper informed military decisions. However, the importance of this information for the state in a non-military context is not obvious to military personnel. Personnel and commanders often do not realize the value of such “ordinary” information. The value of being evidence of the occupier’s war crimes on our land.
In addition, the Armed Forces of Ukraine are always the first to get to the crime scene. At the crime scene, information is always available that can prove a war crime of the Muscovites. But “can” does not necessary mean “will”. Information will become the evidence only if it is properly transferred to the investigator. It takes days, weeks, and sometimes months for investigators to be physically able to get to the crime scene. The so-called “golden hour” for collecting evidence is lost. Time ruthlessly destroys information about crimes.
That is why it is necessary to reconsider the role of the Army in the current armed conflict. The Armed Forces of Ukraine is an entity that not only defends the country by physically destroying the enemy, but is also a necessary element of the state’s mechanism for bringing perpetrators to justice and preventing atrocities in the future.
In addition to the direct elimination of the enemy, we must also focus on collecting information that can be used to document crimes and further transfer it to law enforcement.
The Armed Forces of Ukraine, the units of the State Border Guard Service of Ukraine, the National Guard of Ukraine, and the Security Service of Ukraine, which are directly involved in combat missions, already play an extremely important role in collecting information about crimes. A striking example is the joint use of the War Crime information subsystem of the National Police of Ukraine, which is used by 12 ministries and departments of the state’s security and defense forces. Ukraine is currently shaping trends in the interaction of security and defense agencies to document war crimes – never before has there been such effective, consistent and comprehensive cooperation at the level of the entire state.
Regulatory documents (the Combat Statute of the Mechanized and Tank Troops of the Land Forces of the Armed Forces of Ukraine, the Doctrine) provide for the need of the AFU to obtain data (documents, items) that can be used as evidence to prove war crimes. Such information is classified as Category A, that is, information of the highest intelligence or other interest. The Instruction on the Procedure for the Application of IHL in the Armed Forces of Ukraine explicitly states that one of the main responsibilities of intelligence is to obtain reliable data on violations of IHL during hostilities by its own troops (forces) and enemy forces.
However, these requirements of the regulations have begun to take on a new meaning in line with the realities of modern conflict. The task (and ability) to collect evidence from the battlefield is a necessary and important part of modern military art.
The importance of political, diplomatic and other efforts and their objective contribution to the future victory over the enemy require us to break the Soviet paradigm of war and the role of the army in it. The role of the Armed Forces of Ukraine must be rethought. And the work with evidence within the Armed Forces of Ukraine should be institutionalized.
Organizing and ensuring the collection, accumulation and transfer of information and items of evidentiary value from the Armed Forces to the police or the Security Service of Ukraine will require some effort. And it is not only about the formation of a common information field, unification of approaches to recording information about war crimes and organizational integration of the AFU with other institutions that work with information on enemy war crimes. It is not enough to create a comprehensive mechanism for the constant exchange of data between the AFU and law enforcement agencies.
The collection of war crimes evidence by the Armed Forces of Ukraine, as an idea, should be realized first and foremost by the military. The modern organization of work with evidence within the army requires the formation of a certain culture (standard) of evidence handling: clarification of persons/units responsible for collecting evidence, development of behavioral algorithms, appropriate moral and psychological measures to motivate personnel, and revision of internal regulations. The need for direct communication between the responsible units and services of the Armed Forces of Ukraine and law enforcement agencies on the transfer of items/information relevant to proving enemy war crimes should be clearly and unambiguously enshrined in law. Such a decision would definitely have a positive impact on the volume and quality of information that can be transferred from the AFU to investigative units.
Currently, there are many examples of successful horizontal cooperation between the Armed Forces and law enforcement agencies and its impressive results. However, the cooperation is driven more by the “human” factor. This trend should also be developed.
We believe that the task of the Military Law Enforcement Service of the Armed Forces of Ukraine to assist, within its competence, the bodies conducting operational and investigative activities, pre-trial investigation bodies and the court does not fully meet the need for cooperation on documenting war crimes, since the main information on war crimes is in the sphere of activity of other units of the Armed Forces: intelligence services, civil-military cooperation, legal service, etc.
Reconsidering the role of the Armed Forces of Ukraine in collecting evidence of enemy war crimes will bring the logic of interaction between all the state’s security and defense forces to a completely new level and will provide an opportunity to form much more powerful arguments for fighting in the political, diplomatic, and legal dimensions of modern warfare, strengthen our country’s negotiating position, and once again emphasize the meaning of this war and the cost of unpunished aggression.
In the end, the identification and prosecution of an individual war criminal is no less valuable than his elimination. Perhaps the trial and sentencing of a particular war criminal can be at least a small satisfaction for tens of thousands of other victims whose perpetrators will never be identified.
Serhii Mokreniuk, a serviceman of the Armed Forces of Ukraine
Denys Peftiiev, head of the investigative and analytical unit of the National Police of Ukraine