A20 EZ RE THE WASHINGTON POST.SUNDAY, MAY 29 , 2022
war in ukraineBY LOVEDAY MORRISWARSAW — Inna, 51, spotted the
sign as she left the refugee center
on the edge of Warsaw to go for a
cigarette: “ Help U kraine! Give tes-
timony!” it read.
“Help us punish the criminals!”
At first she was not sure wheth-
er it was relevant to share what
happened when her 26-year-old
son left their home in the Kyiv
suburb of Irpin in search of water.
“There were others that suffered
more,” she explained. “Nobody
was killed except for the dog.”
But, with the i dea that her testi-
mony could be important, she sat
down to recount her ordeal to a
researcher with a 46-question
form.
Three months since Russia be-
gan its assault on Ukraine, efforts
to document war crimes commit-
ted during the conflict are hur-
tling ahead, both inside and out-
side the country.
As Kyiv investigates a mam-
moth 11,816 suspected incidents,
prosecutors in neighboring Po-
land have gathered more than
1,000 testimonies from refugees
like Inna who could act as witness-
es.
France has deployed an on-the-
ground forensic team with exper-
tise in DNA and ballistics, and
Lithuanian experts are scouring
territory in eastern Ukraine.
Meanwhile, the International
Criminal Court, or ICC, sent in a
42-member team, the largest such
contingent it has e ver dispatched.
All together, it amounts to an
unprecedented endeavor, experts
say, and it’s happening in real
time.
In no other conflict has there
been such a concerted push to lay
the g roundwork for p otential w ar-
crimes trials from the start, said
Philippe Sands, a law professor at
University College London who
was involved in the case against
Gen. Augusto Pinochet, the Chil-
ean dictator.
But the array of investigations
— involving more than a dozen
countries and a slew of interna-
tional and human rights o rganiza-
tions — has raised concerns about
duplication and overlap. That
could result in “tension” between
national and international bodies
over jurisdiction, according to
Sands.
Experts caution, too, that it
could b e years b efore any high-lev-
el decision-makers are held to ac-
count — if they e ver are.
“The crucial question, the one
that I think we ought to be focus-
ing our attention on, is how d o you
get to the top table?” Sands said.
It’s one thing to sentence a Rus-
sian soldier for killing a c ivilian, as
a Ukrainian court recently did.
But establishing provable links
between top officials and the hor-
rors that have unfolded in places
such as Mariupol and Bucha is
difficult and time-consuming.
“This raises the specter of a
situation where, years down the
line, you’ve prosecuted a number
of low-grade s oldiers or conscripts
for dreadful things,” Sands said.
“But the people at the top table,
who are truly responsible, got off
scot-free.”
In an exhibition center housing
more than 5,600 refugees on the
outskirts of Warsaw, Inna paused
to compose herself a s she t earfully
described her family’s ordeal in
Irpin, while a volunteer from the
Polish government’s Pilecki Insti-
tute for historical research took
notes.
In the first days of the war, the
power went out, followed by gas
and then water. By March 8, the
water situation w as desperate and
the family had run out of every-
thing they’d stored. Inna’s eldest
son left to seek help from a neigh-
bor, but he was brought back by
seven or eight Russian soldiers
who accused him of spying.
When the family dog, Jimmy,
went to greet them, a soldier shot
the dog in the face, said Inna,
whose last name was withheld for
security reasons. “His lower jaw
was destroyed,” she said.
The soldiers refused the fam-
ily’s pleas to put the dog out of its
misery, she said. Instead, they
went inside and forced her sons
and a friend staying with them to
strip naked and lie down on the
floor. “They were kept on the floor
for a round two or three hours,” she
said. Eventually the soldiers left,
after smashing phones and com-
puters. The next day, the family
risked the perilous journey out of
Irpin, leaving behind Jimmy,
which they couldn’t bring them-
selves to kill.
“Do you remember what they
were dressed in?” asks the volun-
teer. “Were they in uniform? Did
you notice any special badges or
patches.”
“Camouflage,” she answers. She
can’t r emember more. “ Can it helpanything?”
The Pilecki Institute’s Lemkin
Center is gathering testimony
both to serve as an oral history of
the war’s atrocities and, if it might
relate t o a war crime, for referral to
Poland’s public prosecutor.
The Polish prosecutor’s office
said it has collected “very signifi-
cant” testimonies from witnesses,
alongside other evidence such as
photographs and videos. “These
activities are ongoing,” the office
said. “They are extensive in na-
ture. Not a day goes by without us
reaching new witnesses.”
Poland is one of 18 countries
that have started their own crimi-
nal investigations into war crimes
in Ukraine, according to Ukraine’s
prosecutor general, Iryna
Venediktova.
In the United States, where the
State Department has asserted
that war crimes have been com-
mitted by Russian troops inUkraine, officials have said Wash-
ington could tap into its huge in-
telligence apparatus to assist in-
vestigations.
But with so many investiga-
tions underway, there is risk of
organizations working at cross
purposes.
The U.N. special rapporteur on
extrajudicial, summary or arbi-
trary executions, Morris Tidball-
Binz, p raised the international
mobilization but urged countries
and organizations to better coor-
dinate.
“Without coordination of re-
sponsibilities and of efforts be-
tween various bodies, there is a
considerable risk of overlap and
duplication to the d etriment of t he
effectiveness and efficiency of in-
vestigations,” Tidball-Binz said in
a news release. “Proper coordina-
tion can also prevent the re-trau-
matisation of victims a nd w itness-
es arising from being interviewed
multiple times by different inves-
tigators, and ensure that inter-
views fit into the overall i nvestiga-
tive strategy.”
To reduce that risk, the Euro-
pean Union is adjusting the man-
date of Eurojust — the bloc’s agen-
cy for judicial cooperation — to
allow it to maintain a bank of
shareable evidence, such as satel-
lite images, DNA profiles, and au-
dio and video recordings.Poland, Lithuania and Ukraine
have also signed up to be part of a
joint investigative team alongside
the ICC, meaning evidence gath-
ered by prosecutors in any of those
countries can be shared for na-
tional or international prosecu-
tions. Estonia, Latvia, the Czech
Republic and Slovakia are also in
the process of signing up, accord-
ing to Venediktova.
That partnership is key to
building to what Venediktova de-
scribes as a “judicial front” in the
war.
But others such as Germany —
which is now home to 700,00 0
Ukrainian refugees and therefore
many potential witnesses — are
not coordinating directly,
Venediktova said.
Always conscious of its own
dark history, Germany has
emerged as a hub for war-crimes
trials in recent years. Using the
principle of “universal jurisdic-
tion,” which enables prosecution
of crimes committed in other
countries, Germany was the first,
and so far only, nation to try an
official from the regime of Syrian
President Bashar al-Assad for
crimes against humanity. A sec-
ond lower-level official was con-
victed of serving as an accessory.
In those cases, trials were possible
because t he p erpetrators h ad end-
ed up in Germany.
Germany has opened what it
calls a “structural investigation”
into war crimes i n Ukraine, and in
April, two former ministers, Sabi-
ne Leutheusser-Schnarrenberger
and Gerhart Baum, lodged a crim-
inal complaint against 33 Russian
officials, urging Germany’s pros-
ecutors to investigate them for
war crimes.
“We are now urging the pros-
ecutor to come forward very
quickly, because the ICC is very
slow,” said Baum, n oting that the
ICC o nly just announced warrants
for t hree Russian commanders in-
volved in the war in Georgia 14
years ago.
Ukraine is not party to the stat-
ute that established the ICC, but
its government has accepted the
court’s jurisdiction over crimescommitted on i ts territory and the
country’s prosecutor general said
her o ffice w ill probably r efer some
cases to The Hague — whose man-
date is t o complement, rather t han
replace, national justice systems.
For Ukraine, the ICC’s involve-
ment helps bolster the image of
objectivity, Venediktova said. It
also can prosecute cases involving
graver charges such as genocide
and crimes against humanity —
which cover large-scale systemat-
ic attacks, rather than individual
acts. “What we see in Bucha and
Irpin, it’s crimes against humani-
ty,” she said. “That’s why for me
their involvement is very impor-
tant.”
Still, experts say whether any
high-level officials end up in court
could depend in large part on the
political situation in Russia.
While the two former German
ministers concede that the
chances of Russian perpetrators
ending up in Germany is unlikely,
they said they hope international
warrants might act as a deterrent
on the battlefield.
Others disagree. “I don’t think
that’s the logic the Russians oper-
ate on,” said Andreas Schüller,
head of the International Crimes
and Accountability p rogram at t he
European Center for Constitu-
tional and Human Rights. Since
international sanctions have al-
ready restricted where Russian of-
ficials can go, international war-
rants, for now at least, would be
symbolic to an extent.
Schüller said his organization,
which worked extensively on doc-
umenting Syrian war crimes, is
still sorting out how to be most
useful on Ukraine. But it is still
early, he said. What matters for t he
moment is less who is doing work
on what, but that the documenta-
tion is happening.
While the focus has been on
Russian war crimes, rights groups
are also working to document po-
tential war crimes on the Ukraini-
an side, including the treatment of
prisoners of war.
For Sands — whose 2016 book,
“East West Street,” traces the i ntel-
lectual origins of the Nuremberg
war crimes trials after World War
II back to the western Ukrainian
city of Lviv — the key to getting
more speedily to the “top table” of
Russian officials revolves around
prosecution of the lesser-known
crime of aggression.
The Nuremberg Tribunal con-
sidered it to be the “supreme inter-
national crime” — the crime of
waging the aggressive act itself.
That, Sands argues, takes away t he
more difficult task of proving the
intent of leading figures when it
comes to atrocities on the battle-
field.
Crimes of aggression are not
under the jurisdiction of the ICC.
So Sands has floated the idea of
setting up an international tribu-
nal to cover the crime. Since he
wrote about i t in a Financial Times
column in February, the idea has
taken off. On Thursday, the Euro-
pean Parliament voted for t he E .U.
to act to establish a tribunal.
“A s things look right now, what
are the chances of snaring one of
the top people? No, it doesn’t look
likely,” Sands said. But in 1942,
people would have said the same
thing, he added. “Of course, three
years later, you know, Hermann
Göring was in the dock at Nurem-
berg,” he said of the Nazi military
leader sentenced to death in 1946
for war crimes, crimes against hu-
manity and crimes of aggression.Vanessa Guinan-Bank in Berlin
contributed to this report.Hope for justice imbues the vast effort to document war crimes
PHOTOS BY KAROLINA JONDERKO FOR THE WASHINGTON POST
Ukrainian refugees sleep in a hall of the Ptak refugee center in Nadarzyn, Poland, earlier this month. Volunteers from the Pilecki Institute
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