WASHINGTON – Attorney General Merrick B. Garland made a point of refusing to discuss active investigations, but on a recent trip to Ukraine he broke form, revealing that U.S. prosecutors identified “specific numbers” of Russians suspected of committing war crimes against one or more Americans.
Despite Mr. Garland’s assessment, the ability to identify Russians who have targeted Americans in war zones and bring them to justice in the United States – instead of charging them in absentia – now seems far-fetched. . As a result, the Department of Justice has increasingly focused on a supporting role: logistical support for Ukraine’s overwhelmed prosecutors and police, training and direct assistance in bringing criminal charges. war of the Russians in the court of Ukraine.
David J. Scheffer, who served as the United States ambassador-at-large for war crime issues from 1997 to 2001, said: “In terms of bringing cases into the United States soon, there is perhaps the possibility. that’s very fragile at this point. international justice systems to prosecute defendants from the former Yugoslavia, Rwanda and Sierra Leone.
“But we are providing a lot of investigative support to help others take the case to other courts,” said Mr. Scheffer, “and that is a big deal.”
To coordinate that effort, Mr. Garland appointed Eli Rosenbaum, a veteran prosecutor, in June to oversee the Justice Department’s war crime accountability efforts. The choice was well-received: Rosenbaum was known for his dogged pursuit of Nazi war criminals, and in the 1980s the role of former United Nations Secretary-General Kurt Waldheim was unmasked. in the mass killings of civilians during World War II.
Mr. Rosenbaum’s choice surprised him – he was about to retire – and he was immediately struck by the importance of the mission. The prosecutor general’s office, the equivalent of Ukraine’s Justice Ministry, sagged late last year with more than 70,000 charges of Russian war crimes.
“The Ukrainian authorities are facing challenges like nothing we have experienced, even in our most complex cases, and they have to do this in wartime,” Mr. Rosenbaum said. “We have a responsibility to do whatever we can to help.”
The work being done by US and Ukrainian prosecutors is different from the work being done by the International Criminal Court, which on Friday arrest warrant issued for Russian President Vladimir V. Putin, saying that he was criminally responsible for the kidnapping and deportation of Ukrainian children. (The United States has never joined the International Criminal Court out of concern that it might one day prosecute Americans. The Pentagon has been preventing an effort by other agencies in the Biden administration, including the Justice Department and State Department, to share intelligence with the court about Russian atrocities.)
One of Rosenbaum’s first assignments was to research agreement, signed in September by Mr. Garland and Ukraine’s prosecutor general, Andriy Kostin, allows officials in both countries to communicate with each other without requiring State Department permission for any interaction. The agreement allows them to exchange evidence and information over secure channels.
Justice Department officials see Russia’s atrocities in Ukraine as a serious threat to the rule of law and say they believe the treaty could be a gateway to more participation. They are currently assisting Kostin’s deputies in at least one major investigation into a Russian attack, which is seen as a test case for potential future cooperation.
But the Ukrainians want more help, especially with greater access to intelligence on Russian assets, units and military leadership. Kostin wrote in an email that the two sides were now exploring new “intelligence exchange paths”.
Even without further assistance, Ukraine brought dozens of lawsuits using video evidence and intercepted open communications, leading to the conviction of 25 Russians on charges of criminal offenses. expense such as shelling civilians and torturing Ukrainian soldiers. Many have been charged in absentia: Only 18 of the more than 200 Russians identified by Ukrainian prosecutors as war criminals have been arrested.
US officials and NGO human rights groups have been quietly trying to help Ukrainian prosecutors focus on larger, more important cases than before. But the Russian invasion and indiscriminate killings of civilians have awakened a strong national resolve in Ukraine to see that justice is done and to see that no crime goes unpunished. — or at least not being tried.
Several officers of the Ukrainian national police attended a conference of US law enforcement officials in Dallas this fall, where they shared details of several unfinished investigations, including including a Russian attack in the first days of the war that resulted in the deaths of 14 civilians.
A senior official of Ukraine’s national police opens his tablet to display an edited 10-minute video, much of it captured by security cameras, that Russian soldiers failed to destroy.
It begins with a battered, messy column of Russian support vehicles redeploying into a wooded area off a main road, north of Kyiv, for protection. From his hiding position, one could see soldiers firing indiscriminately at the speeding cars of panicked civilians trying to flee.
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A local man, who risked his life to inspect one of the cars later, filmed with his mobile phone what he found: a family of four, mother, father and two young children, their lifeless bodies almost unrecognizable. He was able to notify their loved ones by recovering identification from the crashed car.
By the time Ukrainian forces recaptured the area, many cars, bodies and other evidence had disappeared. It took the police months to put together the video and eyewitness accounts; The man who found his family was terrified of Russian sanctions and had to be coaxed to share his video. But the documents collected included recognizable unit markings on Russian trucks and pictures of individual soldiers.
The Russian soldiers ended up on a spreadsheet put together by Ukrainian investigators, with their names, photos and biographies gathered from social media accounts.
“They tried to escape, but they left too many traces,” said a Ukrainian official, who asked not to be named.
“One of the biggest problems” in bringing lawsuits against the men, the official added, “is that a lot of the people who did this have already been killed.”
What sets Ukraine apart from previous battlefield investigations is the ubiquitous presence of video, along with other digital evidence from texts, emails, social media accounts and private messaging apps. core. But using it effectively is another matter.
Mr. Rosenbaum was surprised to learn that some investigators in Ukraine, a country with a thriving tech industry, still rely on “traditional, paper-based” record keeping. He reached out to prosecutors across the Justice Department to tap into their extensive experience in bringing big data cases.
It turns out that US prosecutors have repeatedly been asked to design complex cloud-based storage, analysis, and communication systems for specific cases. Few systems offer as many important lessons as those built to handle the largest investigation in the department’s history: the attack on the Capitol on January 6, 2021.
The department has shared that information with its European partners, who are working to create the most advanced case management system for Ukraine. It is expected to go online this year.
Many European countries had a significant law enforcement presence in Ukraine for much of the war. By contrast, the Justice Department has only allowed one of its employees to return home, in addition to the FBI officials assigned to the embassy in Kiev, according to people familiar with the situation.
The only other U.S. law enforcement officials who were active in Ukraine during the war were four contractors employed by the International Criminal Investigation Training Assistance Program run by the Department of Justice, which has provides Ukrainian police departments with training and equipment for decades. Gregory Ducot, program director, said they quickly moved to provide training assistance and gather evidence of war crimes.
In Washington, prosecutors began gathering information about American victims from the earliest hours of the war. Christian Levesque, who is leading the investigation by the department’s human rights division, said her team was examining “anything” – from news reports to intelligence – that could yield evidence. .
“This is the most important thing I have done in my career,” Ms. Levesque said.
She declined to discuss what cases the department is currently pursuing, although she repeated Mr. Garland’s assessment that they were achieving success.
The likelihood of cases involving American victims is slim, with only a handful having been killed or injured. These include the disappearance of Grady Kurpasi, who was mortally wounded and captured by the Russians during fighting near Kherson last fall; Pete Reed, a humanitarian worker who was killed in a missile attack last month while treating wounded Ukrainian civilians in Bakhmut; and James Hill, an American living in Ukraine, were killed in Chernihiv shortly after the Russian invasion early last year.
The legal bar for indictment is high. Prosecutors will have to prove beyond reasonable doubt that those charged knowingly assaulted an American with intent to cause harm – not mistakenly attacked people who were not in combat. No one has been charged under the primary US war crime law since it entered the books in 1996.
The Justice Department can also bring cases under the federal torture act, but that’s also of little use.
At the end of last year, the National Assembly Amended current law gives U.S. prosecutors new powers to prosecute war criminals “regardless of the nationality of the victim or the offender,” provided that person is physically present in the United States. That gave US prosecutors the same investigative powers as some international courts.
Mr. Rosenbaum – who once charged a concentration camp guard 75 years after the Holocaust based on inundation records found in a shipwreck – believes this new authority will lead to cases, but only As future generations continue to sharpen, time-consuming work.
“We can bring these people to justice,” he said. “But it will take years, maybe decades, not weeks or months.”
