A Guide to the Initial Investigation of War Crimes
This is intended to be a summary guide to how to investigate an accusation of war crimes. Inevitably there are many personal judgements that the investigator must make. Any investigator needs to be familiar with both the eleven principal categories of war crimes (each of which is highly distinctive); the more detailed Article 8 Rome Statute definitions; and the way that criminal lawyers assess initial evidence for credibility.
Each preliminary investigation is in some ways a personal task, in which the investigator decides how much effort to spend studying each piece of evidence or each lead. They must use their discretion in deciding what to investigate and how, with independence and impartiality. These are personal qualities that not everyone has. But the war crimes investigator must act with the utmost sensitivity of judgment. Even an initial screener of war crimes allegations into those that appear compelling, uncertain, weak or even fabricated, plays a very important role. The decisions they make may determine who is prosecuted for war crimes and who is not. War crimes courts themselves are not particularly robust; they have a habit of conviction. Hence the early work is all the more important.
1. The beginnings of almost every war crimes investigation is a media report. That is because, unfortunately, people who make allegations of war crimes without a media report supporting what they say are often not believed or are simply disregarded.
2. The investigator should read the media report with the utmost care, several times. Does the narrative of war crimes that it asserts make sense? Is it coherent? Does it contain the sorts of details one would expect a journalist to have access to? Has the journalist acted with integrity in writing the report? Do not assume that just because the journalist works for a major international newswire, that they have integrity. There is no necessary correlation. Journalists who work for major newswires may be under tremendous pressure to produce dramatic copy and alarming stories. Each journalist is different. Measuring a journalist's intellectual and drafting skills is different from measuring a journalist's integrity, open-mindedness and commitment to the truth. So the war crimes investigator will have to take a view on that.
3. Write an email to the journalist. Explain who you are. Ask for a telephone call to discuss the issue. Explain that their report may end up before a war crimes tribunal, and therefore it is very important to understand exactly what they have reported and what evidence they acquired for it. It is easy to find journalists' email addresses. If they do not reply, or decline a call, then that is a concern. It may indicate that they are not as certain of their report as they pretend. Anyone who has evidence of war crimes ought to be open to revealing it to investigators. If they aren't, then it's potentially an alarm bell.
4. If and when you speak to journalists or other parties reporting acts that look like war crimes, ask them probing questions. Who did they speak to? If they cannot reveal the witnesses' names for reasons of protection of journalists' sources, then what is the danger to the source that the journalist perceives? When did the journalist travel to the crime scene? How did he or she travel there? In whose vehicle? Who paid for the trip? Who else was present? Was there a photographer present? Was there a member of the military present? Was there a politician present? Are these people all entitled to journalists' protection of their sources? The answer is: probably not, unless they are actually a source. A driver or a photographer isn't a source. They are a paid functionary, and there is no reason why their names should not be revealed to persons investigating war crimes.
5. Journalists who push back, asking who you are and what organisation you represent, generally do this because they are uncomfortable with the questions you are asking. Have straight answers ready. "My name is X. I work for The Paladins organisation, a legal, security and intelligence organisation that pursues ethical mandates. We are creating a war crimes reporting database for alleged war crimes in Ukraine and that involves investigating allegations of war crimes. You have made an allegation in your reporting of events that may amount to a war crime and I am a war crimes investigator retained by The Paladins. Therefore I am asking you for your cooperation."
6. No war crime defendant was ever convicted solely upon the evidence of a journalist or politician. You need to press journalists and anyone else you speak to for the possible identities and names of witnesses. Non-witness evidence unfortunately is usually destroyed in the aftermath of a war crime event in theatre. You're not going to get DNA traces or fingerprints, in the sort of detailed forensic investigation that Police forces undertake after civilian crimes. That's because too much time will have passed between the crime and the investigation - because there's a war going on, and police forces tend to collapse during wars. (Their members either flee or they join paramilitary organisations.) So if this project is to result in prosecutions, then you must push for the names of witnesses; or leads that will help investigators after you find the relevant witnesses. If you can't get hold of those, you may need to close the file on the basis that there is insufficient evidence to proceed. Just because a war crime has been committed does not mean that it can be prosecuted. The vast majority of war crimes are never prosecuted because the defendants cannot be identified.
7. Beware of politicians' statements uncorroborated by tangible evidence. Politicians say things for the benefit of other politicians. On the day this memorandum was prepared, a British politician made the assertion that Russian soldiers had been cutting out the tongues of Ukrainians. It wasn't obvious which Russian soldiers; which Ukrainians; where this happened; or why. Cutting out somebody's tongue in theatre is highly likely to be a war crime of some sort. But at first glance it just looks like a piece of political gore, an allegation thrown around to shock. Unless and until we can say who this happened to, where, why, and by whom, it is probably an empty assertion. It may be worth investigating, if any details arise. But until there are details, it may not be worth pausing upon too much.
8. Every litigation lawyer knows that the devil is always in the detail. Real crimes, that were actually committed, have details. The victims have names and addresses, and identity cards or passports. They were doing something - going to the shops for food; fighting in a militia against the invader; launching a rocket; driving a car. They had family members or colleagues. They had an age. They were dressed in a certain way. Their hair was a certain length. They had a certain physique. Likewise the defendants had details. They were of a certain age, wearing certain uniform, engaged in a certain activity. Press for these details. If the details don't exist, or if they are contradictory, then that is evidence that the allegation of a war crime might be tenuous.
9. Do not become emotionally involved. The emotional condition of the person reporting the war crimes, or of witnesses, is not relevant to the strength of their evidence. Living in theatre is a horrendous experience unless you've been through it before. People are often very disturbed or distressed, soldiers, politicians, civilians and journalists included. The more distressed a witness or reporter is, the more likely it is that their testimony is unreliable. Do not yourself become persuaded simply because somebody's story is horrendous and they are very distressed. Your role is to form an impartial, objective opinion. That requires you not to become distressed. You can have sympathy with all the victims of war. But you must not let this affect your impartial judgment.
10. Always have the list of eleven types of war crimes in mind. As long as you keep that list in mind, and constantly try to fit the facts and evidence into one of the eleven categories, you are more likely to remain on target. You must bear in mind that horrendous things happen in war; but not all of them are war crimes. There must be intention in the commission of a war crime. Where civilians are targeted without military purpose, you must be satisfied that there was an intention to harm those civilians - not that it was just a mistake. Modern weaponry is very accurate, and hence the ascription of intention is easier than it used to be. Nevertheless memorise the list of war crimes, and if useful consult with colleagues about what they think. The horrors you learn of as a war crimes investigator are very unusual. You may not know what to think. Share your thoughts, and if necessary ask us at The PALADINS for our views. We will always ultimately review your work.
11. Behind every military action there is typically a documentary record. Large regular armies, like the Russian Armed Forces, transmit instructions between units using documents, electronic or otherwise. More irregular armies, like the Ukrainian Armed Forces, may be less disciplined. Nevertheless think always about what documents might be available to corroborate or disprove an accusation of war crimes: things such as military orders. Even if you cannot obtain copies of those documents, an investigator further down the line might find it useful to know what sorts of documents could be relevant to the investigation.
12. Every investigation will reach a natural conclusion, at which you will instinctively feel that there is no more valuable investigation that can be done. The perfect is the enemy of the good. When you reach this point, close the file; write up the report: write up the summary that will be published; and make your recommendation. Your recommendation will amount to one of the following: no further action; further action by an investigator later with more resources or legal authorities; refer to a prosecuting authority; or consider referring to an authority on the grounds of deceit (i.e. you consider the evidence and/or event to be potentially fraudulent). It will usually be obvious which recommendation you should make. Only in rare cases will it be borderline. In borderline cases The PALADINS will make the final call once you have alerted us to the uncertainty.
13. Always bear in mind that your recommendation, as a first responder (we are the first people doing this), is likely to be extremely persuasive or even decisive. Therefore your decision carries a lot of responsibility.
14. The conclusion that a war crimes report is based upon fraudulent or fictitious evidence is a grave one; but it happens more often than it should. Therefore do not be afraid to reach such a conclusion, albeit be prepared to justify this type of conclusion meticulously. In any such case, The PALADINS management will review your work meticulously before we publish it, so do not be afraid that you will be held responsible for making such an accusation. We will go through your work with the greatest care in any such case.
15. You will only be identified by a number as an investigator in any public source. Our server is offshore and we have taken appropriate measures to ensure that you cannot be identified from the investigator's number you are assigned. Therefore please act without fear or fervour. Should any volunteer, or The PALADINS, receive threats as a result of our work, we will face down our accusers with relentless litigation of the most ferocious kind. We are proud of our volunteers, and we will do everything to protect them. May those who seek to deter our work face eternal fire.
16. Remember that nothing you write will be published or sent to statutory investigators in any jurisdiction without our having reviewed and approved it first.
Thank you for your fine and admirable work. May you long be remembered and honoured for your contribution to international justice.
-- The PALADINS