How to catch a war criminal: Investigators are building a case against Putin in Ukraine’s killing fields
It is a sleepy rural scene: a pale grey sky hangs low over a grassy slope, bordered by the bare branches of winter trees. The hard work of farm life is clear in the deep grooves of a rudimentary driveway leading to and from scattered buildings.
Warning: This article contains images and details readers might find distressing.
Your eyes can’t help but follow the tracks, until a gut-twisting moment of clarity: the bodies of two men are lying awkwardly, dead, in the middle of the image.
This is Ukraine’s Bucha District, where body-by-body, bullet-by-bullet, the full horror of what happened here is being revealed, and a case against Vladimir Putin is being built.
Ruslan Kravchenko, a Bucha District police prosecutor, is one of the first to bear witness to the killing of these men and document details that may one day form part of a war crimes trial.
“Two bodies of killed men [have been found], both with similar gunshot wounds on the left near the neck and the bullet has gone through. We have determined that one of the bodies has been beheaded,” Kravchenko tells reporters, his face expressionless, his voice monotone.
“According to preliminary evidence we collected confirming the involvement of the Russian armed forces in these murders I can state this crime can qualify as a war crime.”
It is a painstaking job, surely traumatising. The investigators lift the shirts of the dead men, turn over their bodies and press their flesh, tracking the path of the bullet. They snap photographs on their phones, jot facts and observations in notebooks. Every detail holds potential to become the crucial piece of evidence required to successfully prosecute the case.
In another part of Bucha, Human Rights Watch researcher Richard Weir is also documenting a suspected war crime.
Dressed in body armour, Weir scours the rubble of destroyed homes to explain what happened here.
“There was a body that was here,” he says, pointing to a patch of earth stained red with blood. “I’m trying to look for any physical evidence as to how she was killed or [what direction] she was killed from.”
Weir picks up a bullet casing and photographs the end, capturing the brand and dimensions that can perhaps be matched to Russian military weapons down the track.
As Weir works, Ukrainian investigators at the same scene emerge from a basement with a man’s body on a stretcher. His hands are tied behind his back with plastic zip ties.
It is a red flag that a war crime was likely committed here.
The fight for justice
In the shadow of Russia’s war with Ukraine a second battle is underway: the fight for justice.
In early March, barely a week after Russia’s military entered Ukrainian territory, 39 member countries of the 123-strong International Criminal Court supported chief prosecutor Karim Khan’s call to investigate potential war crimes in Ukraine.
It was the first indication that the global community was ready to enforce Russia’s accountability for the invasion, and the war crimes it has almost certainly committed as a result.
Far away in Melbourne, William Smith is watching closely.
The struggle to prosecute a war criminal is one he knows well.
“My first thought was that I can’t believe this is happening again,” says Smith, who has spent 25 years prosecuting the perpetrators of some of recent history’s most notorious war crimes.
Smith worked in The Hague as an attorney on the investigation of former Yugoslav president Slobodan Milosevic, accused of war crimes and genocide during the Balkan wars of the early 1990s. Milosevic was convicted and imprisoned until his death in 2006.
His trial was considered the most important of its kind since the Nazis were tried at Nuremberg following WWII.
Then, until December last year, Smith spent 15 years in Cambodia as deputy prosecutor on the trials of former Khmer Rouge leaders whose regime carried out the systematic ill-treatment, torture and killing of up to 3 million people between 1975 and 1979.
It is “depressing” watching another war unfold with emerging evidence of war crimes mounting, says Smith, who has also undertaken a stint researching war crimes in East Timor.
“The fact that some leaders in the international community don’t seem to be learning the lessons of the past is depressing,” he says, in a reference to Putin.
“After hearing testimony from victims and witnesses in Cambodia, and the former Yugoslavia, I have an understanding of the suffering that Ukrainians are facing. It causes intolerable pain and irreparable harm. It changes lives forever.”
A war crime, or not a war crime?
As the catalogue of potential crimes unfolds in real time, a larger question lurks beyond it: who should be held responsible?
The answer lies in understanding what constitutes a war crime and whether Putin – hundreds of kilometres away in Moscow – can be legally accountable for a rape, an execution or a bombing in Ukraine?
There are several legal layers to understand.
First of all, there is the law of war which includes six categories: warring sides must not target civilians, torture or treat detainees inhumanely, attack hospitals and aid workers, fail to provide safe passage for civilians to flee, fail to provide access to humanitarian organisations and generate unnecessary or excessive loss or suffering.
Successfully arguing Russia has failed to adhere to these laws is the catalyst for a criminal indictment, says Ben Saul, the Challis Professor of International Law at the University of Sydney.
You don’t have to be a lawyer to see how wide open to interpretation these categories are and a complex web of international law governs what happens next.
Beneath the laws of war lie three groups of crime the ICC can use to prosecute: genocide, crimes against humanity and war crimes. A fourth, the crime of aggression, is prosecuted by individual countries.
Within each is a third category, detailing specific criminal violations.
Genocide, for example, includes causing serious bodily or mental harm.
A crime against humanity can include rape or forced transfer.
The category of war crimes include execution without due process or inhumane treatment.
The crime of aggression refers to the illegal attack by one country on another.
On the face of it, Russia has likely violated many of them.
Yet just like a murder trial in an Australian courtroom depends on the strength of the evidence, to successfully convict Russia for its actions in Ukraine prosecutors must show “beyond reasonable doubt” specific crimes have occurred. A case like this requires cool legal logic. Emotion must be stripped away.
“For the credibility of international criminal justice, these institutions must maintain the highest standard of proof,” Smith says.
“What might look to be a clear-cut case about, say a massacre, is not always straightforward. Was it a crime or was it not a crime? Is the person at the top of the political leadership responsible or not responsible?”
In the case of Putin, the court must prove he knew of and sanctioned the crimes being investigated or had a reasonable expectation they would occur, yet took no action to prevent them.
Former Army Major General Mick Ryan says members of Australia’s military receive training in making ethical decisions on the battlefield and specifically how to make assessments when under extreme pressure.
In his view Russia’s apparent war crimes in Ukraine are not the actions of renegade troops but reflect “systemic failure from top to bottom”.
Australian military personnel receive instruction by lawyers and experienced combat leaders, Ryan says, and carry out “scenario-based training” to embed the concepts.
“You do that down to the lowest level but you also build it at very high levels of operational planning to ask the question, not just what can we do but should we do this? Is this ethical? Is this proportionate? None of these questions appear to have been asked by Russian commanders.”
When a civilian death is not a war crime
As unpalatable as it sounds, Saul points out that the laws of war do allow for civilian deaths, “as long as the number is not excessive relative to the importance of that military objective”.
“The devastation looks terrible but when you’re fighting urban warfare, and the defender is also living there, you are going to have a lot of lawful killings of civilians,” he says.
In the Ukrainian case, many buildings in civilian towns have been fortified.
“While deliberately attacking civilian property is a war crime it’s perfectly lawful if there are Ukrainian forces defending it.”
What is the likelihood Putin can be successfully prosecuted?
Smith believes one of the biggest red flags in Ukraine – and one that could be most straightforward to prove in a court that has jurisdiction – is the Crime of Aggression, the unjustified invasion of one country into another.
“These trials are big and complex, but it would be fairly simple to prove using eyewitness accounts, video and photographs of the damage and destruction,” he argues.
“Regardless of crimes committed in war, the act of war in the unleashing of tanks and weaponry to kill combatants and civilians, destroy the architecture and fabric of society, is the biggest crime presented here. It’s unacceptable.”
In the case of other crimes, the minute details being recorded by investigators and observers on the ground will help draw links between the criminal event and the chain of command “to show that there was at least gross negligence or that a particular person wanted that crime to occur”, Smith explains.
“If you collect the objective evidence — and it’s terrible to say — but if you collect the bodies, photograph them and everything surrounding them, document any indicator of how the deaths happened, this will be invaluable to a trial whether it be in two years, time five years’ time, or 20 years’ time,” he says, pointing out the benefits of access to digital technology in 2022.
“It creates a body of evidence that prevents some arguments being put forward in court as being reasonable.”
For example if a defendant argues they were under attack and fired in defence the collected evidence will allow a prosecutor to ask “Why did the victims have their hands tied? Why are bullets in the back of most people’s heads? How does that fit with a case where you are under attack?” Smith says.
This kind of evidence is in stark contrast to the work Smith did in Cambodia where the crimes were committed decades ago and many witnesses were already dead. Smith notes the Khmer Rouge’s obsessive documentation of its activities – including heartbreaking archives of photographs, biographies of prisoners and punishments issued to inmates at the Tuol Sleng prison in Phnom Penh – “were incredibly important in those trials” in underscoring the culpability and brutality of the regime.
Following the chain of command
While the Crime of Aggression may more easily be pinned on Putin, individual rapes, massacres or bombings are harder to link. But it’s not impossible.
There’s a doctrine in criminal law known as “command responsibility”, Saul says, where the test becomes whether a person knew, or had to reason to know, subordinates were committing a crime.
“That’s the first step,” Saul says. “The second is did you take all necessary and reasonable measures in your power to prevent or punish it.”
In the case of Putin, if it can be proven that he ordered specific crimes — perhaps proof was picked up by US intelligence — then command responsibility is less important: the intercept proves the point.
However if Putin has not ordered it, and these actions are going on in the field by someone lower down the pecking order, then the case must show Putin had knowledge of what was going on.
“It’s opaque in terms of what Putin does or doesn’t know,” Saul says. “There’s been a lot of talk about him being kept in the dark by his generals in terms of how the war has been conducted. On the other hand, given that a lot of this is now absolutely in the public domain, there must be some point in the past couple of weeks that he could hardly not know that these kinds of violations are happening.”
There could also be benefits for them to imply specific atrocities are faked or Putin was out of the loop as a ploy to muddy this command responsibility and complicate a trial.
It’s not enough to find a dead body, Saul says. “You’ve got to figure out when they were killed, how they were killed and what Russian units can be linked to that killing, what individuals and what part of that unit was involved and what their intent was.”
Flaws and inconsistencies
The big flaw in all this talk of war crimes trials and bringing Putin to justice is the question of who would deliver the Russian leader to the ICC courtroom? He’s hardly about to give himself up and at present no credible opposition exists to overthrow him.
If a strong case against him is created, Putin could be tried in absentia. It means that if he visited any of the ICC’s 123 member states they would be obliged to arrest him.
“That’s not convicting him and putting him in jail but it’s a significant interim penalty which is a deterrent,” Saul believes.
Secondly, such a conviction has symbolic value.
“It shows that you’re doing the best to hold him to account even if for practical reasons you can’t get your hands on them,” Saul say.
Smith notes the tremendous catharsis trials like that of the Khmer Rouge leaders delivered to Cambodians.
There is a third benefit that proved effective in the case against Slobodan Milosevic: regimes don’t last forever. As war crimes have no statute of limitations there is also no time pressure — beyond the closure it may offer to victims — to try the case.
Milosevic was ultimately handed to the ICC by his successor. “There are many situations where people seem to have impunity, but then decades later a regime changes and leads to an accountability process, immunities are stripped away,” Saul says.
Why Putin? Why now?
If talk of a war crimes trial for Putin leaves an uncomfortable feeling that atrocities in Ukraine are being prioritised for international legal attention over other conflicts; or whether concern for Russia’s crimes in Ukraine exposes a double standard when alleged actions by the US, or even Australian troops, in places like Afghanistan have not led to prosecution, you are not alone.
There are three important points the experts make.
The response to human rights violations during the civil wars in countries like Myanmar, Yemen, Somalia and Ethiopia has been muted. Calls for war crimes investigations from human rights groups have not gone further.
Saul sees several reasons for this: The Ukraine/Russia war is between states, not a civil conflict like in the examples above, the location of the conflict on Europe’s doorstep plus Russia’s place on the UN Security Council and its nuclear capacity make it of clear strategic global importance.
Yet Saul also sees an element of “racialised interest” in this conflict, pointing out that just this month the government of the African country of Mali allegedly murdered 300 people. “It was an incident that barely made the news,” he says.
Secondly, the West’s focus on going after Russia using the International Criminal Court overlooks an astounding fact: the US refuses to become a member of the court because it doesn’t want its own citizens tried before it. “A huge double standard,” says Saul.
Russia and the Ukraine are also not ICC members.
A third inconsistency is the fact that Ukraine has also been accused of violating human rights during this conflict.
Footage last week apparently shows Ukrainian troops shooting dead captured Russians soldiers in clear violation of the Geneva Conventions.
A long road to justice
The task ahead for the ICC or Ukrainian prosecutors who step up to take on a potential case against Putin is shaping up to be long and disturbing.
With thousands of investigations and counting, the road to a trial could take years.
Once in court, Smith says the material lawyers must consider day-after-day, month-after-month can be difficult. But he manages to stop himself succumbing to vicarious trauma.
“I can only speak from my perspective but the testimonies you’re reading, the photographs you’re viewing and the orders for mass killing or torture you’re trying to interpret must be separated from your emotions,” he says. “The very goal of what you’re trying to achieve is justice and accountability. You need to just keep working through it because if you don’t you will lose objectivity.”
Smith says he is helped by remembering never to lose sight of that fact that he is a participant in the process and has never experienced the suffering of the people he’s representing.
“The victims and the witnesses never had good conditions to be able to protect themselves. It’s important we use our privileged position to work hard and prosecute or defend intelligently,” he says.
The emotion Smith does sometimes find hard to shake is witnessing discrimination or disrespect here in Australia.
“I think, if only you knew where this type of intolerance ends up,” he says. “It can create floods of emotion. We have a population of diverse and amazing groups of people. Rather than make them enemies, remember everyone makes our society more interesting, and much stronger.”
