What Russia Is Doing to Ukraine Must Be Preserved — Not Just Seen


On Monday, Karim AA Khan QC, prosecutor of the International Criminal Court (ICC) in The Hague, announced that the Office of the Prosecutor (OTP) was opening an investigation into alleged war crimes and crimes against humanity being committed in Ukraine. “I have already tasked my team to explore all evidence preservation opportunities,” he said in a statement, inviting anyone with relevant information to email it to his office.

The information necessary to the investigation — including photographs, videos, satellite images, and audio files of the conflict — can be emailed because it is largely composed of crowdsourced mobile data. On Instagram, Ukrainians post stories containing videos of bombed-out buildings and smoke rising from residential neighborhoods. On Telegram, a Kharkiv news channel shares images of murdered civilians in the center of the city, bleeding out onto the street, of gutted apartment buildings. On Twitter, videos of bombing victims in Kyiv circulate.

This circulation reflects the nature of contemporary warfare: We have seen these kinds of images make the rounds before, from Syria, Yemen, Libya, Afghanistan, Palestine, and elsewhere. On Tuesday, the UN International Court of Justice, also located in The Hague, followed Khan’s lead, announcing that next week it too would hold public hearings on allegations of genocide committed by the Russian Federation against Ukraine.

But the international community has not yet settled on a standardized approach that might ensure the preservation of this digital evidence. There is no widely used method to guarantee that when the perpetrators are tried — and they will be tried, in absentia or otherwise — the abundant documentation of their crimes will meet the evidentiary requirements of their courts. While many courts, including the ICC, have previously admitted user-generated evidence, there is an unprecedented volume of potentially relevant data coming out of Ukraine. As Rebecca Hamilton and Lindsay Freeman write for Just Security, “An eventual case from Ukraine would be one of the first, and certainly the most major, example of reliance on user-generated evidence by the OTP at trial, where the Court requires proof beyond a reasonable doubt (significantly higher standard than the” reasonable grounds to believe “standard required for the issuance of an arrest warrant).” Securing convictions will require unimpeachable, verifiable digital evidence. That means we need to start protecting these files now.

Proof alone is not enough to combat lies. It is never enough. Evidence, digital or analog, can always be maligned by those who would prefer it did not exist. Just ask the prosecutors at the District Court of The Hague who are pursuing the case against the Russian-backed separatists responsible for downing a civilian jetliner in 2014. They issued their closing arguments in December 2021, seven years after the incident occurred. When Russia invaded Ukraine in 2014, evidence also circulated online, and social media played a critical role in documenting the occupation. Not all of those links were preserved, which means that important pieces of evidence have likely been lost.

Cases pertaining to the 2014 Russian invasion in Ukraine are still working their way through international courts; the atrocities committed over the last week represent a continuation and escalation of an ongoing war. The difference is that now the international community is better equipped to ensure that artifacts documenting the obliteration of the Ukrainian people and nation are archived and protected against manipulation until the day when trials begin — and long after they end.



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