Ukrainian Conflict & War Crimes: Challenges in Investigation & Prosecution

June 2022

On 26th May 2022, Russian Corporal Oleksandr Ivanov and Private Oleksandr Volodymyrovych Bobykin were each convicted of 11 years and six months imprisonment for being involved in an indiscriminate rocket attack on civilians in the Kharkiv region, Ukraine. This was the second war crime conviction of Russian individuals by Ukraine in the context of the ongoing conflict. Less than two weeks earlier, Sergeant Vadim Shishimarin was given a life sentence for shooting and killing the unarmed civilian Oleksandr Shelipov, in the north-eastern village of Chupakhivka, Ukraine.

It has been reported that the Ukrainian General Prosecutor’s office has so far identified more than 10,000 potential war crimes committed by Russia. Over 500 suspects including Russian ministers, military commanders and propagandists, have been identified. Simultaneously, the International Criminal Court (ICC) has also launched its preliminary investigations with regard to war crimes committed against civilians by the Russian forces. However, as historical events have demonstrated, the task of investigating and prosecuting war crimes can be a lengthy and challenging process that comes with numerous obstacles.

Firstly, investigating war crimes amid an ongoing conflict poses serious safety issues for investigative teams and safe evidence collection. Gathering evidence within active conflict zones is extremely dangerous, the infrastructure and access routes will be constantly changing, making safe passage difficult. Unstable situations may make it harder to preserve evidence for court use. The use of amateur video footage within the Ukrainian conflict is undoubtedly an asset to investigators, though there are also challenges with evidence authentication. Establishing that an event occurred on a specific location, at a specific time, while proving that certain individuals were present, requires thorough and careful analysis.

Secondly, in order to establish that war crimes have been committed, investigators and lawyers have to prove that civilians have been deliberately targeted. Alex Whiting, a Harvard Law professor and former Head of Investigations at the Kosovo Specialist Prosecutor’s Office in the Hague, Netherlands, stated that in order for an incident to be classified as a war crime, it must be established that no military target was nearby during the occurrence of that incident, and if there was, that force was disproportionate and intentional. In the case of the two convicted Russian individuals, they pleaded guilty of being part of a military unit that fired dozens of rockets within Ukraine, hitting an electrical station, residential buildings and a veterinary school.

War crime investigations aim to hold accountable, not only the direct perpetrators of crimes, but also those ultimately responsible, which is perhaps the greatest challenge. Proving that high-level Russian military commanders/officials are responsible for war crimes is more time-consuming and difficult than prosecuting low-level members of the military Russian forces, such as those recently convicted. While the latter may be sufficient through the collection of situational evidence such as footage, the former requires extensive linkage information and crime/military analysis to identify those in the Russian chain of command who ordered, or facilitated the atrocities.

With regards to linkage information, investigators must collect data that suggest intent. This can include documentation such as military orders, witness statements, satellite/imagery or communications data. The latter can be particularly useful as it can prove an individual’s location amid the occurrence of war crimes or indicate linkage between low-level military personnel and higher-ranking officers. According to William Wiley, founder and executive director of the Commission for International Justice and Accountability, Ukrainian investigators have been gathering large amounts of communications data, as the communications of the Russian forces have reportedly been non-encrypted and, hence, vulnerable to exploitation.

Despite the challenges associated with war crime prosecution, including the potential duration of the investigations, it ultimately shows the victims that they are recognized and that those responsible should be held accountable for their actions, no matter the time or resources needed.