Collection of evidence of war crimes by forensic methods

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Collection of evidence of war crimes by forensic methods

Ihor Havryshkevych, 4th Year Cadet, Military Institute, Taras Shevchenko National University of Kyiv

The article examines the historical experience of using evidence collection methods in wartime, which demonstrates the risks of unstable boundaries between what is permitted and what is prohibited. Compliance with the standards of the Geneva Conventions and their protocols is an absolute rule, but tactical methods of obtaining evidence developed for peacetime run into emotional, mental, situational states and circumstances. In such cases, the question arises as to the appropriateness of such techniques in the difficult conditions of war and the need to develop new investigation methods and tactics of investigative (detective) actions which would be adapted or modified to the conditions of martial law. The inherent purpose of the article is to show a retrospective of war crimes evidence collection with an indication of judicial practice and to suggest the creation of theoretical prerequisites for optimizing forensic approaches to war crimes evidence collection. Formation of the methodology for investigating war crimes should cover the peculiarities of investigating different types of criminal offenses by their criminal law features (both against life and health of a person, his/her sexual freedom and inviolability, against property, and war crimes themselves), which is expressed in a single mechanism of criminal activity implemented in the context of military aggression of the Russian Federation. This indicates that a prerequisite for the successful development of new and improvement of existing forensic techniques is the definition of conceptual approaches to the technology of creating the techniques themselves. In modern conditions, we are talking about the formation of a comprehensive forensic methodology for investigating war crimes, which is based on criminal law and forensic features. Collecting evidence of war crimes is a prerequisite for investigating and ultimately bringing perpetrators to justice. The hegemony of forensic science is the key to achieving justice and bringing perpetrators to justice, and investigations must be accompanied by strict adherence to international humanitarian and criminal law to avoid human rights violations and guarantee fair trials.

Key words: war crimes; armed conflict; forensic methods; focus on expediency; casual interrogation; rapid fire tactics.

Збір доказів воєнних злочинів криміналістичними методами

Гавришкевич І.М. Курсант 4 курсу, Військовий інститут, Київський національний університет імені Тараса Шевченка,

У статті розглядається історичний досвід застосування методів збору доказів в умовах війни, який свідчить про ризики нестабільності межі між дозволеним та забороненим. Дотримання стандартів Женевських конвенцій та протоколів до них є абсолютним правилом, але тактичні прийоми отримання доказів, розроблені для мирного часу, наштовхуються на емоційні, ментальні, ситуативні стани та обставини. У таких випадках постає питання доцільності таких прийомів у складних умовах війни і виникає потреба у розробці нових методів розслідування, тактики слідчих (розшукових) дій, які були б адаптовані або модифіковані до умов воєнного стану. Іманентна мета статті показати ретроспективу збору доказів воєнних злочинів із зазначенням судової практики та наштовхнути на створення теоретичних передумов для оптимізації криміналістичних підходів збору воєнних доказів. Формування методики розслідування воєнних злочинів має охоплювати особливості розслідування різних за своїми кримінально-правовими ознаками видів злочинних посягань (як проти життя та здоров'я особи, її статевої свободи та недоторканості, проти власності, так і власне воєнних злочинів), яка виражається в єдиному механізмі злочинної діяльності, що реалізується за умов ведення воєнної агресії РФ.

Це вказує на те, що обов'язковою умовою успішного формування нових і удосконалення існуючих криміналістичних методик є визначення концептуальних підходів стосовно технології створення самих методик. За сучасних умов мова йде про формування комплексної криміналістичної методики розслідування воєнних злочинів, що будується із врахуванням кримінально-правових та криміналістичних ознак. Збирання доказів воєнних злочинів є необхідною умовою розслідування і в кінцевому підсумку - притягнення винних до відповідальності. Гегемонія криміналістики і є ключ досягнення справедливості та притягнення винних до відповідальності, а розслідування злочинів повинно супроводжуватись непорушним дотриманням норм міжнародного гуманітарного та кримінального права, щоб уникнути порушень прав людини та гарантувати справедливий суд.

Ключові слова: воєнні злочини; збройний конфлікт; криміналістичні методи; установка на доцільність; невимушений допит; тактика швидкого вогню.

Statement of the problem in a general form and its connection with important scientific or practical tasks

Modern forensic science in the context of armed conflicts faces new complex challenges that call into question the effectiveness of traditional forensic methods of evidence collection. The practice of investigating crimes of aggression and war crimes on the territory of Ukraine indicates the need for innovative approaches to the entire spectrum of tactical and forensic support for investigative (detective) actions. The study of historical and international experience in collecting evidence of war crimes using forensic methods is intended to become a driving force for modern forensic tactics in the context of investigating the armed aggression of the Russian Federation against Ukraine in order to improve the methods of evidence collection to ensure effective counteraction to impunity and support for international justice.

Analysis of the latest studies and publications, which the author relies on, which consider this problem and approaches to its solution

A considerable number of scholars have described the general research of forensic methodology and tactics in their works. Methodological approaches of the national forensic methodology and tactics proposed by the team of authors: V.Y. Shepitko, V.A. Zhuravel, V.O. Konovalova [3], became the national ideological inspiration for the article. The issues of investigating war crimes were covered in the works of Y. Sandoz, M. Bassiouni [5], G. Werle [6]. An integral part of the study was the analysis of judicial practice in cases of crimes against humanity, for example, Ireland v. the United Kingdom [13], with an indication of forensic methods of evidence collection. From the entire array of norms, scientific public sources, for the logical substantiation of the purposes of the article, I will separately highlight the work «Higher Loyalty. Truth, Lies, and Leadership. Memoirs of the FBI Director.» by James Comey [10], indicating the experience of interrogation tactics by the US intelligence services, the use of which should be included in the program of evidence collection by forensic methods by the pre-trial investigation authorities of Ukraine in the context of investigating the armed aggression of the Russian Federation.

Formulation of the article's objectives

To analyze the world practice of collecting war crimes by forensic methods and to assess the risks of lability of the boundary between the permitted and the prohibited. To establish the feasibility and effectiveness of methods that can contribute to the further development of modern forensic tactics to comply with the standards of the Geneva Conventions and their protocols.

Presentation of the main research material

The Statement of the Verkhovna Rada of Ukraine on the need to ensure accountability of those responsible for the most serious crimes under international law on the territory of Ukraine emphasizes that during the armed aggression and occupation of part of the Ukrainian territory, the armed forces of the Russian Federation, other military formations under its control, as well as the occupation administrations in the temporarily occupied territories of Ukraine have committed and continue to commit mass war crimes and crimes against humanity; condemning crimes including systematic intentional killing and wounding of civilians, the Verkhovna Rada of Ukraine In view of this, it is necessary to take all possible measures to investigate these crimes, bring to justice and fairly punish all those responsible for their commission within national and international jurisdictions [1]. The scale of the consequences is indicated by the statistics released by the President of Ukraine on July 4, 2023, which show that since the beginning of the full-scale war, more than 84,000 such criminal proceedings have been opened and 1838 notifications of suspicion have been issued. In addition, the National Police of Ukraine has created a special database «War Criminal» with more than 200,000 records of Russian mercenaries and military personnel [2]. It is obvious that the task of effective investigation of war crimes is a challenge for modern forensics, which, according to Professor V. Shepitko, is a science that is really at the forefront of the fight against crime, it is forensics that, on the basis of its research and development, offers ... scientifically based and proven in practice means, techniques and methods of crime detection, investigation and trial [3, p. 5].

Investigations are mostly conducted in a conflict situation, even in peacetime, due to the desire of those interested in evading responsibility to obstruct the legitimate actions of investigators. Investigation of war crimes during a full-scale invasion is carried out in conditions of a high degree of conflict (situational, mental, psychological and organizational). The modern achievements of Ukrainian forensics were nurtured in peacetime and were aimed at ensuring the detection, recording, seizure, research, evaluation and use of electronic evidence (digital forensics); at mastering and using artificial intelligence in the field of crime investigation (developing versions, planning their verification, etc.); at studying the international experience of forensic experts. The above demonstrates the desire to harmonize science and practice with peaceful international standards. Criminalistics has been challenged by the war, which has led to the urgent need to develop, in particular, tactical methods of conducting investigative (detective) actions in the investigation of war crimes, as they have certain specifics due to this type of crime.

First of all, the problem lies in the very definition of the concept of a war crime. The term is used in different and often opposite meanings. Some researchers consider war crimes quite narrowly, namely as criminal behavior during a war or other armed conflict, while others use the term to refer to all violations of international humanitarian law, regardless of whether they are criminal in nature [4, Sec. 499]. This term is also used to define crimes under international law committed in connection with an armed conflict, even if a particular act is a crime against humanity or genocide [5, p. 393.]. In our opinion, more accurate from a practical point of view is the approach of Gerhard Werle, who defines a war crime as a violation of international humanitarian law, which is subject to criminal liability directly under international law [6, p. 469]. This set of legal norms can be called the law of war crimes or the international criminal law of war. It is the international element in the definition of a crime that leads to the realization that tactical recommendations should be developed taking into account international standards, risks and previous experience of other states, institutions and international organizations.

The Geneva Conventions and their protocols thoroughly regulate the rules of treatment, while, as the experience of other states shows, in practice, the line between permissible and prohibited is drawn according to individual criteria. The difficulty was that the investigators used a set of tactics during the interrogation, and the court or tribunal that considered the allegation of ill-treatment made a decision on the entire treatment without evaluating individual actions. The defense always justifiably refers to conventional safeguards, while investigators seeking to obtain testimony during interrogation resort to a situational interpretation of prohibitions, taking into account, in particular, the military's operational need to obtain information. For example, Ellen Frye in her book Interrogation in War and Conflict: A Comparative and Interdisciplinary Analysis reveals the secrets of the London interrogation center of the British Secret Service, which operated in 1940-48 and was called the «London Cage», where prisoners of war were subjected to «special intelligence processing» to obtain information [7, p. 256]. Despite the passage of time and the recognition of international standards and the high professional level of military investigators, violations are still committed. For example, the Supreme Court of the United Kingdom proved that British troops violated the Geneva Conventions in Iraq in 2003, as they subjected civilians to cruel and inhuman treatment [8, р. 9].

In his book A Higher Loyalty: Truth, Lies, and Leadership. Memoirs of an FBI Director» reveals the details of the investigation of crimes against prisoners of war in Abu Ghraib. Under a secret «legal program» that operated in 2002-2003, CIA officers beat, starved, abused, and nearly drowned prisoners in order to obtain information about subsequent terrorist acts. In the summer of 2002, the CIA asked the Department of Justice to clarify the boundaries of what was permissible during the interrogation of suspects. As it was later established, by providing opinions on interrogation tactics, the legal department made erroneous decisions in favor of the CIA, going far beyond its authority (the Ministry of Justice adopted secret recommendations on torture). In the Bush administration, a confrontation began between supporters of the rule of law and supporters of a secret political agenda. Similar events took place in relation to the leaders of al-Qaeda, as the CIA leaders claimed that such brutal interrogation methods were not only effective, but also necessary to save innocent people. In a dissenting opinion, a Justice Department lawyer noted that the interrogation methods the CIA planned to use against Abu Zubaydah (confinement in cramped conditions, sleep deprivation, and waterboarding) did not fall within the legal definition of torture under U.S. law. According to J. Comey, the use of prohibited tactics in the context of conflicts, wars, and terrorist threats is guided by one of the most powerful and dangerous forces of human nature - the confirmation bias. In the course of evolution, our brains have acquired a tendency to receive information that is consistent with our perceptions. We look for data and focus on facts that support our opinions. But the worst part is that once we fall into this trap, we are unable to accept information that contradicts our preconceived notions. In a complex and integrated world, this makes us unbearable people [10, p. 116].

Other states that have ratified the Geneva Conventions have searched for new methods of «persuasion» to convince a detainee that cooperation is in his or her best interests and thus encourage him or her to voluntarily testify on his or her own initiative. Let us consider some of them. First of all, this is the so-called «relaxed interrogation», which is a set of tactical techniques that allow obtaining testimony as if without external influence, but the content of the tactics in this case is precisely the art of using «soft psychological force», which creates conditions for invisible pressure from the outside to yield. The maximum pressure occurs in the mind of the interrogated person, as a result of which his resistance weakens until he defeats himself (individuality wins over personality, inner integrity gets rid of external social roles (military, commander, etc.)).

According to the CIA's recommendations [11], «informal interrogation» can be conducted using a set of the following tactics:

«Nobody loves you» (the investigator notes that the sources of information about the subject of interrogation are other persons, which makes the interrogated person want to provide his or her own version of events);

«All-seeing eye» (the essence is the skillful use of known information about a person, which contributes to the emergence of the idea that all the secrets of the interrogated person will be revealed);

«Informant» (obtaining information from an interrogated person's cellmate who cooperates with the investigation);

«News from home» (a tactic that allows you to receive differentiated emails with only certain content);

«Witness» (a witness who knows the suspect's offenses is invited for questioning, and «accidental» visual contact is provided, which further encourages the suspect to give his or her own testimony);

«The collapse of the team of suspects» (a person is informed that another person has pointed to his or her full guilt), etc.

Another group of interrogation techniques is obviously unacceptable during interrogation, although their use is allowed by CIA recommendations in certain cases. They are aimed at neutralizing the defenses that a person has acquired in the course of life (the ability to carry out higher creative activity, face new difficulties and overcome disappointments). It is about the use of methods of homeostatic disorder, fatigue, pain, sleep deprivation, hypnosis, anesthesia, which provokes weakness, dependence and fear.

According to Article 13 of the Geneva Convention, it is also prohibited to show military prisoners for propaganda purposes through the media [12], as any image makes a «prisoner of war vulnerable» (being in captivity is considered humiliating).

In different periods of military conflicts, differentiation of prisoners of war subjected to interrogation was established according to various criteria (age, gender, nationality, ideology, etc.). During the Second World War, the Gestapo police used harsh interrogation methods against civilian prisoners who might have valuable information and were not cooperative. In particular, the «third degree» methods, which consisted of the following: bread and water, a hard bed, a dark cell, sleep deprivation, exhausting labor, and beatings. Such methods were applied to Marxists, Jehovah's Witnesses, terrorists, members of the resistance movement, paratroopers, etc.

An analysis of the European Court of Human Rights case law shows that the applications submitted provide examples of unlawful interrogation methods used against insurgents and terrorists (for example, in the UK, interrogation methods with sensory deprivation known as the «five methods» were used, when a person is forced to stay in one uncomfortable position for several hours, stand on tiptoe, be subjected to sound exhaustion; deprived of sleep, food and water). According to the ECHR, this method is not recognized as torture, but is qualified as inhuman and degrading treatment [13].

In Israel, it was concluded that interrogation tactics during wartime should be researched, systematized, and the permissible methods carefully controlled, instead of being silenced. On this basis, the Knesset approved recommendations on the admissibility of non-violent psychological pressure through «vigorous interrogation» (in case of failure, moderate physical pressure was allowed). However, in 1999, the Israeli Supreme Court declared such methods prohibited [14].

The most common tactical interrogation technique is the so-called «rapid fire», during which one or two investigators ask questions without giving the interrogated person time to think and ask another question without hearing the answer to the previous one. At this pace, a person cannot control the logic of a pre-built version of events, which leads to the disclosure of actual circumstances.

In our opinion, it is advisable to create a research center for the development of military field forensics, the purpose of which should be to develop tactics for the use of forensic equipment under martial law (BPA, fixation by 3D modeling, remote searches), the formation of tactics for conducting investigative (search) actions under martial law in the investigation of war crimes, etc. It should be noted that tactical recommendations, in particular, should be ranked taking into account the status of the interrogated person (this is especially important in war crimes). In view of this, the principles of military psychology should be carefully studied, which will facilitate the modification of tactical techniques to achieve the objectives of criminal proceedings in the investigation of war crimes. It is advisable to use structured (according to a pre-drawn up plan) and unstructured (only on the basis of a specific purpose) interviews to study a person; to evaluate speech (commanding, sluggish), which gives grounds to form a version of the status (official or latent) of a person and his/her influence on others; the use of observation gives grounds to assess the psychomotor skills of a person (reaction of perception, tracking, transfer of attention, reaction, accuracy of reactions and actions).

During a meeting with a judge of the International Criminal Court held in July 2022 in Kyiv, it became known that, if necessary, it is advisable to make proposals to improve the Criminal Procedure Code of Ukraine, including the specifics of interrogation of a person in court. It is a question of expanding the number of participants in the proceedings to ensure compliance with international human rights standards and the Geneva Conventions. In particular, during war crimes trials, an independent expert - a representative of the Red Cross and Red Crescent or scientists who are specialists in human rights (international standards and tactics of investigative actions, permitted methods of investigation) should be present in the courtroom. In the theoretical aspect, judicial tactics are still insufficiently studied [3, p. 216].

The interrogation of victims and witnesses of war crimes also requires separate tactical support, due to a number of specific circumstances and factors that are not inherent in civilian life. Forensic tactics should be recognized as a driving force for improving legislation to protect the rights of the subjects of such proceedings. In particular, the presence of victims of crimes against sexual inviolability in the occupied territories does not require asking victims or witnesses questions about the perpetrator's actions against the victim's will (whether they resisted, how it manifested itself, etc.), since, according to the practice of the International Criminal Court in such proceedings, such questions can cause psychological trauma, since violence in the territory occupied by the military of the aggressor country exists objectively.

In the context of aggressive and destructive enemy propaganda, in order to understand, analyze and predict the actions of suspects (military personnel of the enemy army) during interrogation, it is advisable to carefully study the methods of information and psychological influence to neutralize its effects. In this regard, we should recall the words of Gustave Le Bon, in which he stated that «the masses are not much inclined to reason, but are very inclined to act» [15, p. 10].

criminal offense military aggression

Conclusions from this study and prospects

By means of a retrospective of the methods of obtaining evidence, testimony and application of war crimes investigation techniques, I emphasize that the study of international practice is an extremely important aspect for modern criminalists. The analysis of experience provides valuable insights for the effective implementation of forensic methods in modern conditions. The purpose of collecting evidence of war crimes is to achieve justice and bring the perpetrators to justice, and the investigation of crimes must be accompanied by strict compliance with international humanitarian and criminal law to avoid human rights violations and guarantee a fair trial.

So, summarizing the above, I consider it expedient to develop a state program «Strategy for the Development of Criminalistics», which should provide for the formation of military field methods of investigating war crimes.

References

1. Zaiava Verkhovnoi Rady Ukrainy pro neobkhidnist zabezpechennia vidpovidalnosti osib, vynnykh u vchynenni naitiazhchykh zlochyniv za mizhnarodnym pravom na terytorii Ukrainy, zatverdzhena Postanovoiu Verkhovnoi Rady Ukrainy vid 20 bereznia 2023 roku № 2961-IX [The statement of the Verkhovna Rada of Ukraine on the need to ensure the responsibility of persons guilty of committing the most serious crimes under international law on the territory of Ukraine, approved by Resolution of the Verkhovna Rada of Ukraine dated March 20, 2023 № 2961-IX]. [in Ukrainian].

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4. Department of the army. United States Army Military Manual, The Law of Land Warfare (1956), Washington.

5. Sandoz Y., Bassiouni M.C. (1999). International Criminal Law.

6. Werle G. (2011). Principles of International Criminal Law. In Humbolt-Berlin: Universitat zu Berlin (Ed.).

7. Fry H. (2017). The London Cage: The Secret History of Britain's World War II Interrogation Centre. Yale: Yale University Press.

8. Cobain I. (2017, 14 Dec). British troops breached Geneva conventions in Iraq, high court rules. The Guardian.

9. Andrew C., Simona Tobia S. (Eds.) (2014). Interrogation in War and Conflict: A Comparative and Interdisciplinary Analysis A Comparative and Interdisciplinary Analysis. London: Imprint Routledge.

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12. United States v. Wilhelm von Leeb, 12 LRTWC 1,20. (08.09.2004).

13. In the case of Ireland v. the United Kingdom (request for revision of the judgment of 18 January 1978).

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