Courtney Martin is a Faculty of Law doctoral scholar at the Irish Centre for Human Rights and legal practitioner currently practising from Australia. Ms Martin‘s current research areas include transitional justice theory, archival science, the doctrine of universal jurisdiction and international criminal law.
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Introduction
Effective evidence compilation is critical to the success of downstream truth and justice seeking pursuits to address mass human rights atrocities. Evidence of mass atrocity has markedly fortified national, regional and international legal processes, truth commissions and commissions of inquiry, legislative reform and memory projects long after relevant conflicts have dissipated. Russia’s ongoing aggression against Ukrainian independence since 2014, its purported orchestration of the downing of Malaysian Airlines MH17 flight, its refusal to enter into relevant negotiations, and now its ‘unprovoked and unjustified’ large-scale military invasion of a sovereign country has demanded international attention. This article focusses on the urgent need to identify, protect, compile and preserve evidence of atrocity crimes contemporaneous to the conflict. Such evidence has, in other parts of the world, demonstrably been harnessed to weaponise survivor communities, formalise official truths, hold perpetrators to account in a variety of settings, and bolster memory and reparation initiatives to prevent reoccurrence during transitional periods. By offering insights into the role of diverse legal efforts to address international criminal wrongdoing, this piece addresses the lacuna prevailing in current media coverage concerning evidence gathering capabilities by State and non-State actors. It coincides with Australian and Dutch governments initiating legal proceedings last week in the International Civil Aviation Organization (ICAO) against Russia over the downed MH17 flight, reinforcing the pluralisation of evidence use over time.
Evidentiary and prosecutorial multiplicity as dual accountability priorities
National efforts
The manifold ways in which the international community and its legal and investigative institutions have responded to Russian aggression toward Ukraine since 2014 is exemplary of this phenomenon. Spearheaded by the Dutch Prosecution Service, a criminal investigation has been conducted over a period of five years by the Joint Investigation Team (JIT), drawing on the joint efforts and resources of Australia, Belgium, Malaysia, the Netherlands and Ukraine, to pursue individual criminal liability for the downing of MH17. The JIT’s investigators, prosecutors and other experts assessed billions of internet pages, half a million videos and photographs, thousands of intercepted phone calls, containers full of wreckage parts, and legal assistance material provided from most of the requested 20 countries. Complex challenges included the gathering of sensitive information—typically of foreign military origin—being exceedingly difficult and lengthy, and the investigation area situated in eastern Ukraine remaining inaccessible to the JIT thereby preventing opportunities to find and protect potentially relevant evidence. Even so, at the culmination of the protracted comparative investigation, four individuals are facing prosecution in Dutch national courts which commenced on 9 March 2020 in absentia.
ICAO proceedings initiated
It is important to highlight the Dutch criminal proceedings as distinct from the efforts to hold Russia as a State accountable for failing to uphold international law by virtue of the doctrine of state responsibility. On 14 March 2022, Australian and Dutch governments announced their initiation of legal proceedings in the ICAO against Russia for the downing of MH17. Based on evidence gathered by the JIT, including important evidence recently made available given the current stage of the Dutch criminal proceedings, both States assert the Russian Federation to be responsible for the aviation tragedy which killed 298 people, 38 of whom called Australia home. Russia continues to deny responsibility, unilaterally withdrawing from relevant talks in 2020. It is interesting to note that Russia could lose its voting power under the Chicago Convention pursuant to one of the orders sought by the Australian and Dutch governments. To secure such an order, a majority of votes of the ICAO Assembly and ICAO Council (as per section 48, 62 & 88) is required. A majority vote seems likely given the current posturing of the international community however it is questionable whether this outcome would do much to curtail current Russian aggression. Although this punitive measure would have the effect of Russia losing its voice with respect to international civil aviation matters, the ICAO is solely designed to improve inter-State cooperation and standardisation—it does not have the jurisdiction to comprehensively adjudicate a compensation dispute concerning an act of aggression. For this reason, the enforceability of the Chicago Convention has been described as ‘a bit of a toothless tiger’. Nevertheless, this legal venture remains important for those personally impacted, as explained by the son of two of the victims speaking more broadly for other families affected, in their quest to learn the truth and for Russia to ‘finally acknowledge the facts’.
Ruling of the International Court of Justice (ICJ)
On 16 March 2022, the ICJ in the Hague made a provisional order that Russia halt its invasion of Ukraine. This ruling came following a Ukrainian appeal on 26 February 2022 for an urgent decision concerning Russian claims that Ukrainian forces were committing genocide in Luhansk and Donetsk, both Russian enclaves in eastern Ukraine, as a pretext for the invasion. The ICJ confirmed in its ruling—of 13 votes to two, with only the Chinese and Russian judges of the ICJ voting against the order—that the court is not in possession of evidence substantiating such allegations by the Kremlin. In short, Russian Judge Gevorgian was of the view the matter fell outside the jurisdictional scope of the ICJ, writing that ‘neither is the use of force regulated by the Genocide Convention nor does the use of force itself constitute an act of genocide’. Chinese Judge Xue, while supportive of ending the military operations in Ukraine, asserted that the ICJ ought to be careful deliberating on the merits of the case. In her view, the alleged genocide is but one issue in a much broader and more complex political impasse between Russia and Ukraine. Weighing in on the merits of this grievance was purported to be prejudicial to future legal scrutiny. Nonetheless, while the ICJ has no enforcement powers, its rulings create binding international legal obligations (under the UN Charter); a failure to adhere to the ruling is further evidence of Russia’s ongoing disregard for the international rules-based order, and significantly, the ICJ’s position clearly rebukes Russia’s justification for the war as an authoritative legal body.
International Criminal Court (ICC) investigations
The ICC’s mandate is to pursue individuals for their roles in the commission of ‘the most serious crimes of concern to the international community as a whole’. It is postulated as the most capable forum by which to bring to account Vladimir Putin, the ‘war criminal’, as has been the rhetoric expressed by President Biden concerning his military actions in recent days. The invasion of Ukraine by Russia presents a situation involving a prima facie violation of the UN Charter’s prohibition in article 2(4) against the ‘threat or use of force against the territorial integrity or political independence of any State’. Commentators have been forthright in their repudiation of Putin’s self-defence claims, and condemnation for Russian acts which have been categorised as acts of aggression. These flagrant acts contrary to international law have compelled a total of 41 ICC States Parties to refer the situation in Ukraine to the Office of the Prosecutor (OTP) of the ICC. This ‘unprecedented collective call for action’ has allowed the ICC Prosecutor Karim A.A. Khan QC to ‘immediately open an investigation and to commence evidence-collection’ as expressed in his Statement on the Situation in Ukraine dated 11 March 2022.
There are a number of ways that evidence to further the ICC’s investigation can be collected and provided, with the following two related points warranting particular attention. Firstly, the ICC’s investigation will garner significant governmental support because it cannot act unilaterally. It does not have independent enforcement powers or its own police force and is limited by country-specific permissibility to enter and obtain evidence. Despite these inherent limitations, it has been reported that a number of local and international entities have already commenced the provision of ‘cooperation and assistance’ to the ICC by way of local evidence gathering, the deployment of researchers from non-State organisations to collect testimonial evidence, the establishment of a commission of inquiry (by the UN Human Rights Council) and the formation of an expert mission (through the Organisation for Security and Cooperation in Europe). The OTP has thus been emboldened to take whatever steps are necessary to gather relevant evidence of alleged crimes that fall into its jurisdictional reach; it is postulated this far-reaching capability coupled with the previously unforeseen palpable international support of the ICC’s investigation into the Situation in Ukraine may stifle or dilute any Russian attempt to destroy or manipulate inculpatory evidence.
Secondly, effective management of evidence is crucial to ensuring its admissibility, veracity and reliability in a criminal court setting. The present author has recently identified evidentiary difficulties encountered by States grappling with prosecuting egregious human rights violators where traditional jurisdictional nexuses are lacking. It is attested that involved parties must ensure the 1) authenticity and a robust chain-of-custody pertaining to the documentation of human rights violations when used in downstream legal proceedings, 2) assimilation of evidence for respective legal arenas, 3) availability of translation services to obtain testimonial evidence, and 4) appropriate cultural training of investigative and prosecutorial staff to ensure a comprehensive understanding of the circumstances of the conflict. These collection and safeguarding issues have contributed significantly to a number of high-profile, failed domestic and international prosecutions that have sought to address the commission of international crimes (as discussed in the author’s article above-linked). To address this evidentiary shortfall, Mr Khan QC has affirmed his engagement with all actors to strengthen evidence-exchange channels, and has established a dedicated virtual portal to enable communications between ICC investigators and persons with relevant information. Bellingcat—an ‘independent international collective of researchers, investigators and citizen journalists’—is representative of the innovative measures developed in this space to preserve admissible evidence for future (ICC or other) proceedings. Cognisant of the evidentiary issues associated with open-source evidence, it seems evidence collated by Bellingcat would at least provide sound circumstantial evidence. Additionally, formal communications have been sent to all States Parties to provide assistance—namely, the provision of secondees or financial support—to the OTP to allow it to progress all of its ongoing investigations and trials.
The availability of universal jurisdiction
Prosecutions of gross human rights abusers have often played out in a variety of non-traditional court settings, often to circumvent an implicated State’s unwillingness or inability to bring those accused to account. The doctrine of universality has on occasion equipped third-party States with domestic jurisdictional bases by which to bring such perpetrators before foreign courts. Universal jurisdiction has been exercised most notably to convict a former Nazi in Israel for his involvement in genocide, and to arrest former Chilean dictator Augusto Pinochet in the UK. Since then, the doctrine has facilitated Swiss trials for Liberian atrocities, enabled Argentinian trials to aid the plight of the Myanmar Rohingya community, and last year led to the successful conviction of a Syrian man in German courts for complicity in crimes against humanity. In addition to domestic efforts to bring perpetrators to justice, ad hoc tribunals have been established to address atrocity situations the world over, from South Africa to the former Yugoslavia, to Sierra Leone and Rwanda. The evidence gathered by these tribunals have also later supported extradition and mutual assistance processes to enable perpetrators to face prosecution at home, most often during governmental transitions toward democracy. Despite worthy goals, trials addressing international criminality routinely face innumerable evidentiary difficulties. The respective crimes have typically been committed long ago and or far away, gaining witness testimony is laced with cultural and logistical difficulties, documentary evidence is often destroyed or concealed from investigating authorities, and assimilating evidence to respective legal standards takes time and money, and may impact admissibility. Innovative litigation strategies are needed to combat international criminal offending of the most heinous kind, particularly given the identified demands of effective evidence-gathering and preservation to mobilise accountability initiatives.
Other evidence gathering mechanisms
Victim/survivor solidarity groups have likewise proven their effectiveness at systematically compiling and preserving vital sources of evidence of mass atrocity, often scrupulously gathered contemporaneous to the conflict, thereby increasing its credibility and reliability. Arguably the most effective case study of this particular evidence-gathering capability is Chile, principally given the temporal distance since the mass atrocity situation which has allowed ongoing truth and justice mechanisms to unfold, and for analysis thereof to be conducted. Post-Pinochet, multiple truth commissions forged complex evidence matrices which officially confirmed the truth of the regime and the extent of the atrocities committed, contributing significantly to new national narratives and later human rights trials in Chile and abroad. Chile’s reparation and memory initiatives, together with its ongoing pursuits of individual criminal accountability, demonstrates the dynamic uses of evidence over time. Diaspora communities in third-party States have similarly been operative in gathering personal stories and other evidentiary artefacts regarding the effect of mass atrocity to propel authorities to pursue perpetrators identified on foreign shores. Other UN sponsored bodies including the International, Impartial and Independent Mechanisms for Syria and the Independent Investigative Mechanisms for Myanmar have mandates to collect, consolidate and preserve evidence of violations of international law and human rights abuses, and routinely work with affected communities on the ground as custodians of essential evidence. These bodies have statutorily conferred powers to analyse and share evidence of atrocity with national, regional and international courts or other tribunal bodies that may establish jurisdiction over the respective crimes identified. It remains to be seen what other UN mechanisms may be established to ensure relevant evidence is secured in the context of Ukraine, but history tells us that we can expect to see survivor communities mobilise to ensure accountability.
Conclusion
The above analysis highlights the importance of collective and innovative methods of documenting widespread human rights abuses, to compile evidence systematically and enable effective transferral pathways given the multiple and unexpected ways such evidence may later come to be used. To ensure leaders atop a repressive regime face justice, a sufficient quantity of quality evidence is needed to secure successful criminal convictions in diverse settings over time. It is critical to mobilise coordinated efforts to condemn and quash Russia’s illegal invasion of Ukraine, its ongoing contempt for the international rules-based order and to ensure affected communities have access—now and into the future—to truth, justice and accountability. Contemporaneous evidence collation is imperative now, not only in furtherance of these objectives, but also to maintain the legitimacy and authority of the international criminal justice project more broadly. Effective evidence gathering must reinforce the tactful use of sanctions, diplomacy and other forms of intervention by the international community at this perilous juncture to ensure future justice endeavours have the best chance at success.
Irish Centre for Human Rights 