THE WAR IN UKRAINE: A CASE STUDY IN MODERN ATROCITY CRIME DOCUMENTATION.

• Date: 22 March 2023
• Author: Williams, Paul R.,Carle, Nicole
• Published date: 22 March 2023
• Author: Williams, Paul R.

TABLE OF CONTENTS TABLE OF CONTENTS I. INTRODUCTION II. A BRIEF OVERVIEW OF DOCUMENTING THE WAR UKRAINE III. INCREASE IN CIVIL SOCIETY DOCUMENTATION IV. INTRODUCTION TO REMOTE DOCUMENTATION V. WHAT TO DO IF YOU WANT TO DOCUMENT REMOTELY A. Building the Team B. Training the Team C. Designing the Workflow Protocol D. Psychosocial Support for Witnesses E. Database F. Indexing G. Storage of Digital Information H. Psychosocial Support for Investigators I. Implementing the Workflow Protocol J. Communication With Witnesses K. The Interview VI. DATA SHARING VII. RESULTS AND LESSONS LEARNED VIII. DOCUMENTATION: TOO MUCH OR NOT ENOUGH IX. CONCLUSION I. INTRODUCTION

This article aims to detail how the Public International Law & Policy Group (1) designed and launched a remote documentation initiative to collect witness statements from those who experienced violence during the war in Ukraine, following the Russian Federation's invasion in February 2022. (2) This article offers a step by step guide outlining how PILPG implemented this novel approach to conducting remote investigations, including the additional considerations one must take when communicating and storing data digitally. Specifically, it covers how to build and train a team of investigators, how to psychologically care for both witnesses and investigators, how to go about communicating with and interviewing witnesses, and how to organize and store collected information. This article also negates the narrative that there is too much documentation happening in Ukraine and that it is harmful to ongoing investigations. It instead suggests that proper training and coordination, not less documentation altogether, is the most helpful towards seeking accountability for those responsible for atrocity crimes. Lastly, this article concludes by offering succinct key takeaways for those looking to begin their own remote documentation efforts.

2. A BRIEF OVERVIEW OF DOCUMENTING THE WAR IN UKRAINE

   The war in Ukraine is unique in numerous ways, but aggression and territorial greed is nothing new. The conflict began in 2014 when Russia illegally annexed Crimea and began actively supporting eastern Ukrainian separatists in the Donbas region. (3) Then, in February 2022, in an illegal act of aggression, Russia invaded Ukraine after amassing troops along the border for months, initiating the most recent phase of conflict. (4) Responses to the outbreak of the war soon dominated conversations throughout numerous state governments, domestic civil society groups, and other international actors such as the European Union, the Council of Europe, and the United Nations, and sparked a collective desire among Ukrainians and the international community alike to hold Russian civilian and military leaders--as well as front line soldiers--accountable for both the act of aggression, and for other atrocity crimes being committed against Ukrainian civilians and prisoners of war. (5) This section discusses the atrocity crimes being committed in Ukraine, and why early and sufficient documentation is critical to seeking accountability for these crimes in the future, and in particular, why documenters had to plan their data collection differently to cover this war than in some in the past.

   As with any conflict of this nature and scale, effective documentation of atrocity crimes is critical for the success of potential future accountability proceedings, as well as for maintaining the rule of law. As of the summer of 2022, more than 20,000 claims of war crimes had already been submitted to the Office of the Prosecutor of Ukraine, exemplifying the need for additional assistance with investigations. (6) Neither the domestic police force, nor the Office of the Prosecutor, possessed the capacity or expertise to investigate and document evidence of this level of atrocity crimes. (7) To provide assistance, numerous civil society organizations recruited volunteers to collect and store evidence of potential atrocity crimes that have occurred in their neighborhoods and throughout Ukraine. (8)

   Fairly quickly it became obvious that the war would continue for some time, (9) making it difficult for civil society documenters to conduct thorough investigations. Photo and video documentation technologies have become popular to capture the immediate aftermath of various attacks (10) but collecting reliable witness statements remained elusive in the early days of the war. (11)

   Moreover, neighboring states did not set up refugee camps for those who fled the violence. Instead, neighboring states, namely Poland, focused on relocating Ukrainian refugees throughout Poland, and throughout the European Union. (12) As such, Ukrainian refugees are geographically dispersed and difficult to physically locate, making the collection of statements both time and resource intensive, as well as logistically complicated.

3. INCREASE IN CIVIL SOCIETY DOCUMENTATION

   The war in Ukraine in particular has spurred a proliferation of civil society documentation for war crimes investigators. (13) This proliferation is partially because in an age of technology, it has become simpler than ever for citizens to capture evidence of crimes using smartphone technology. (14) This section describes modern documentation and introduces the tools and various technologies that documenters are increasingly relying upon, most evident by their prolific use in Ukraine.

   Investigative tools are no longer limited to pen and paper. (15) Largely due to the rapid increase in documentation technologies and widespread smartphone use, efforts in Ukraine quickly centered around capturing digital evidence. (16) Many are doing open search research and data collection as well, or compiling data that is available publicly, such as from social media. (17)

   Digital evidence collection, as well as the swift training of both civil society organizations and ordinary Ukrainians in best practices to capture such data, quickly became the priorities for those interested in preserving evidence for potential accountability proceedings. (18) To guide documenters relying on technology to collect data for accountability purposes, in 2020, Lindsay Freeman (19) and her team at the Tech and Human Rights Program at the University of California Berkeley Human Rights Center (20) published the Berkeley Protocol, or, a set of evidentiary standards for digital and open source information that is intended to eventually be relied upon as evidence in court. (21) Ukrainian organizations, such as Truth Hounds, for instance, have also stepped in to train citizens and government actors alike on documentation of atrocity crimes. (22) Moreover, organizations such as EyeWitness have produced technologies to capture photo evidence of potential atrocities before the sites are contaminated or destroyed. (23) And to account for the preceding intensification of attention on Ukraine, groups including Open Society Foundations, have worked tirelessly to bring prominent actors together and coordinate efforts among them. (24) Still, the collection of corresponding or corroborating witness statements was minimal.

   Overall, the growth in volunteer documentation is primarily intended to assist the aforementioned prosecutors, whether domestic or international, with their cases and investigations, offering leads and potentially physical or digital evidence to be used in court. (25) With that said, there are other reasons for civil society documentation as well, aside from assistance with prosecutorial efforts. Statement collection from interviewees can be cathartic for victims and witnesses, in that oftentimes sharing their stories with a neutral individual can be helpful in the healing process following a traumatic event. (26) Documentation for the purpose of catharsis may be done in a different way than investigations for accountability mechanisms that have the purpose of pursuing leads. Most importantly, documentation may take different forms depending on the victims' needs and the investigators' goals.

4. INTRODUCTION TO REMOTE DOCUMENTATION

   Before the COVID-19 pandemic, remote working was unheard of for most individuals, and especially so for war crimes investigators. (27) Throughout the pandemic, organizations, including PILPG, grew increasingly comfortable operating with remote technologies, making them a necessary part of everyday workflows. Overall, the pandemic introduced both reliance and increased competency with remote technologies, enabling the new era of remote documentation. (28) As discussed in detail below, this transition laid the foundations for what became a remote documentation mission "in" Ukraine.

   PILPG has longstanding expertise in documentation across the globe. (29) In addition to conducting numerous documentation trainings, many of PILPG's experts are seasoned investigators themselves. (30) Just a few years prior to the launch of the Ukraine Accountability Initiative, (31) PILPG orchestrated an in-person State Department funded mission to Bangladesh to document atrocity crimes committed against the Rohingya between 201617, ultimately leading to Secretary Blinken's declaration of genocide. (32) PILPG spent months deciding when and where the mission would take place, training the team, securing visas, hiring interpreters, and scheduling camp visits. (33) Overall, PILPG conducted 1,024 interviews in six weeks and provided to the State Department a quantitative database with more than 13,000 coded instances of grave human rights violations. (34)

   In an early 2022 conversation with one of its pro bono partners who assisted with the 2018 Rohingya documentation mission, PILPG and Orrick, Herrington & Sutcliffe ("Orrick") (35) were discussing what they could do together towards a documentation mission to investigate atrocity crimes committed on Ukrainian territory, and potentially going to the Ukrainian border to interview refugees. During this discussion, it was suggested that the team could...