The Washington PostDemocracy Dies in Darkness

Opinion The war isn’t over, but Ukraine is already prosecuting Russian crimes

A grave digger prepares the ground for a funeral at a cemetery in Irpin, Ukraine on April 20. (John Moore/Getty Images)
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correction

An earlier version of this article incorrectly described Yuriy Belousov. He is Ukraine's lead prosecutor for human rights violations. This version has been corrected.

Gregg Bloche is the Carmack Waterhouse professor of health law, policy and ethics at Georgetown University. Mark Fallon is a former Naval Criminal Investigative Service deputy assistant director for counterterrorism and author of “Unjustifiable Means: The Inside Story of How the CIA, Pentagon and US Government Conspired to Torture.” Elisa Massimino is executive director at the Human Rights Institute at Georgetown University Law Center and senior fellow at the Center for American Progress.

Russians who've committed war crimes in Ukraine may be counting on the conventional wisdom that accountability for such acts — if it comes at all — will be many years in the future. But that assumption is about to be upended.

Ukraine’s lead prosecutor for human rights violations, Yuriy Belousov, has told us that his office is moving forward with charges in four model cases involving mass disappearances, torture and killing of civilians. And this is only the beginning: Ukraine is investigating some 7,600 potential war crimes cases.

What Belousov vows to deliver is something that eluded the United States after 9/11: the investigation and trial of suspects for horrific crimes, amid national outrage, in a manner that respects the rule of law. The United States botched its efforts to bring captured terrorists to justice because of its shameful resort to torture, undermining the very rule of law officials were claiming to uphold.

Ukraine has charged 11 Russians whom it now holds as POWs, Belousov reports, and prosecutors are matching POW photos with surveillance footage, citizens’ smartphone videos, and even Russian troops’ Facebook posts to identify additional perpetrators.

Meanwhile, at Guantánamo Bay, the alleged planners of the 9/11 attacks await trials that seem increasingly unlikely. The United States’ torture of suspected perpetrators poisoned the process of calling them legally to account, and victims’ families are now entering a third decade without justice.

Ukrainian prosecutors are intent on avoiding this trap, even as their country faces an existential threat and unspeakable brutality. As missiles slam into buildings near his office in Kyiv, Belousov is reminded that even his own survival isn’t a given. Yet he preaches sober self-restraint: “If you want a really bad guy to be put in a jail,” Belousov told us, “the worst thing you could do is to torture him.”

To this end, he’s drawing upon state-of-the-art investigation methods. Two decades ago, CIA psychologists and physicians reacted to the 9/11 attacks by designing a torture regimen. But today, behavioral scientists, national security experts and criminal investigation professionals urge interviewing strategies that build rapport with hostile subjects and kindle recall of critical details while complying with human rights and the laws of war.

Long before the current Russian invasion of Ukraine began on Feb. 24, Belousov was part of a transnational effort to establish such strategies as the norm. The Mendez Principles, developed in response to an appeal to the U.N. General Assembly by former U.N. Special Rapporteur on Torture Juan E. Mendez, bring science to bear on the challenge of getting interview subjects to reveal what they’re reluctant to discuss. Formulated in reaction to the United States’ post-9/11 descent into torture, the Mendez Principles integrate behavioral science with professional ethics and international law.

Belousov is intent on applying these principles across Ukraine. His Kyiv-based team plans to spread knowledge of behavioral-science-based interviewing and state-of-the-art approaches to preserving and collecting physical evidence, to war-crimes investigators around the country.

The challenge of accomplishing this amid battle is daunting. Already, reports have surfaced of Ukrainian soldiers beating and shooting POWs. Combat troops, not criminal investigators, make first contact with surrendering Russians, and the sentiment among many Ukrainian soldiers, Belousov said, is that Russians “should be killed, they should be castrated.”

“We try to treat Russian [military personnel] as human beings,” he added. “We are different. If we behave the same way they do, what is the difference?” But “when you have arrested Russian military who’ve bombed cities, raped women … the emotions are harder to control.”

Belousov’s model cases will challenge his investigators’ and prosecutors’ abilities to control their emotions. According to Belousov, they involve the torture, killing and mass confinement of civilians — 300 in a school basement near Chernihiv and 60 in a warehouse north of Kyiv, in addition to the widely-reported mass slaughter in Bucha and Makariv. Both will demand, from a nation fighting for survival, the self-discipline and sober adherence to processes that are at the heart of the rule of law.

Whether Ukraine will be “different” in the face of nightmarish violence is a question with enduring implications for the human capacity for rule of law at a time when some Americans — and many others around the world — believe that law has no place amid war’s inherent brutality.

Ukraine will be a proving ground for the proposition that a nation victimized by an aggressor can be capable of fairly meting out justice. Americans can help Belousov’s investigators by teaching interviewing and evidence-gathering approaches that incorporate the best-available science. At the same time, Ukraine has the opportunity to teach the United States and the world that we needn’t abandon the rule of law when human conduct turns hellish.

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