Justice Dept. Embraces Supporting Role in Pursuing War Crimes in Ukraine

WASHINGTON — Attorney General Merrick B. Garland makes a point of refusing to discuss active investigations, but during a recent trip to Ukraine he broke form, revealing that U.S. prosecutors had identified “several specific” Russians suspected of war crimes against one or more Americans.

Despite Mr. Garland’s assessment, the possibility of identifying Russians who targeted Americans in a war zone and bringing them to justice in the United States — rather than charging them in absentia — appears remote for now. As a result, the Justice Department is increasingly focused on a supporting role: providing Ukraine’s overburdened prosecutors and police with logistical help, training and direct assistance in bringing charges of war crimes by Russians in Ukraine’s courts.

“In terms of actually bringing cases in the United States anytime soon, it’s probably a very slim possibility at this point,” said David J. Scheffer, who served as the U.S. ambassador at large for war crimes issues from 1997 to 2001 and helped create international judicial systems to prosecute defendants from the former Yugoslavia, Rwanda and Sierra Leone.

“But we’re providing a lot of assistance on the investigative side to help other people bring cases in other courts,” Mr. Scheffer said, “and that’s a big deal.”

To coordinate that effort, Mr. Garland appointed Eli Rosenbaum, a veteran prosecutor, in June to oversee the Justice Department’s war crimes accountability efforts. The choice was well-received: Mr. Rosenbaum is best known for his dogged pursuit of Nazi war criminals and the unmasking in the 1980s of the former U.N. Secretary General Kurt Waldheim’s role in the mass killings of civilians during World War II.

Mr. Rosenbaum’s selection came as a surprise to him — he was on the verge of retirement — and he was immediately struck by the magnitude of the task. The prosecutor general’s office, Ukraine’s equivalent of the Justice Department, was sagging by the end of last year with a caseload of more than 70,000 accusations of Russian war crimes.

“The Ukrainian authorities are confronting challenges unlike anything that we’ve experienced, even in our most complex cases, and they’re having to do this during wartime,” Mr. Rosenbaum said. “We have a responsibility to do anything we can to help.”

The work being done by the American and Ukrainian prosecutors is separate from that being carried out by the International Criminal Court, which on Friday issued a warrant for the arrest of President Vladimir V. Putin of Russia, saying he bore criminal responsibility for the abduction and deportation of Ukrainian children. (The United States has never joined the International Criminal Court out of concern that it could someday try to prosecute Americans. The Pentagon has been blocking an effort by other agencies in the Biden administration, including the Justice and State Departments, to share intelligence with the court about Russian atrocities.)

One of Mr. Rosenbaum’s first tasks was to work on an agreement, signed in September by Mr. Garland and Ukraine’s prosecutor general, Andriy Kostin, that allowed officials in both countries to communicate without seeking State Department approval for every interaction. The deal allowed them to exchange evidence and information over secure channels.

Justice Department officials see Russian atrocities in Ukraine as a grave threat to the rule of law and say they believe that pact could be a gateway for greater involvement. They are now assisting Mr. Kostin’s deputies on at least one major investigation involving a Russian attack, which is seen as test case for potential future collaborations.

But the Ukrainians would like more help, in particular greater access to intelligence on Russian military assets, units and leadership. The two sides are currently exploring new “avenues for exchange of intelligence information,” Mr. Kostin wrote in an email.

Even without additional help, Ukraine has already brought dozens of cases using intercepted open-line communications and video evidence, resulting in the conviction of 25 Russians on charges such as shelling civilians and torturing Ukrainian soldiers. Many have been charged in absentia: Only 18 of the more than 200 Russians identified by Ukrainian prosecutors as possible war criminals have been captured.

U.S. officials and nongovernmental human rights groups have quietly tried to help Ukraine’s prosecutors to focus on bigger, more significant cases first. But the Russian invasion and the wanton killings of civilians have awakened a powerful national determination in Ukraine to see justice carried out and to see that no atrocity goes unpunished — or at the very least, unexamined.

Several officers with Ukraine’s national police attended a conference of U.S. law enforcement officials in Dallas this fall, where they shared details on several uncompleted investigations, including a Russian attack in the first days of the war that reportedly resulted in the deaths of 14 civilians.

A senior official with Ukraine’s national police flipped open his tablet to show an edited, 10-minute video, much of it taken by security cameras that Russian soldiers had failed to destroy.

It began with a battered, disorderly column of Russian support vehicles redeploying into a wooded area off a main road, north of Kyiv, for protection. From their hidden position, soldiers could be seen firing indiscriminately at speeding cars of panicked civilians who were trying to flee.

One local man, who risked his life to check on one of the vehicles afterward, filmed with a cellphone what he found: a family of four, mother, father and two young children so riddled with bullets their lifeless bodies were almost unrecognizable. He was able to notify their relatives by retrieving identification from the crashed car.

By the time Ukrainian forces recaptured the area, many of the cars, bodies and other evidence were gone. It took the police months to compile video and eyewitness accounts; the man who found the family was terrified of Russian retribution and had to be coaxed to share his video. But the material collected included identifiable unit markings on Russian trucks and images of individual soldiers.

The Russian soldiers ended up on a spreadsheet pieced together by Ukrainian investigators, with their names, photographs and biographies harvested from social media accounts.

“They tried to get away with it, but they left too many traces behind,” said a Ukrainian official, who spoke on the condition of anonymity to protect his safety.

“One of the biggest problems” in bringing cases against the men, the official added, “is that a lot of the guys who did this have been killed already.”

What makes Ukraine different from previous battlefield investigations is the omnipresence of video, along with other digital evidence from texts, emails, social media accounts and private messaging apps. But using it effectively is another matter.

Mr. Rosenbaum was surprised to learn that some investigators in Ukraine, a country with a robust tech sector, still relied on “traditional, paper-based” record-keeping. He reached out to prosecutors all over the Justice Department to tap their extensive experience in bringing big-data cases.

It turned out that American prosecutors had been repeatedly required to devise complex, cloud-based storage, analysis and communications systems for specific cases. Few provided as many important lessons as the system built to handle the largest investigation in the department’s history: the Capitol attack on Jan. 6, 2021.

The department has shared that information with European partners, who have been working to create a state-of-the-art case management system for Ukraine. It is expected to go online this year.

Many European countries have had a significant law enforcement presence on the ground in Ukraine for much of the war. The Justice Department, by contrast, only recently authorized one of its staff members to return to the country, apart from F.B.I. officials assigned to the embassy in Kyiv, according to people familiar with the situation.

The only other U.S. law enforcement officials who have operated in Ukraine during the war are four contractors employed by the International Criminal Investigative Training Assistance Program run by the Justice Department, which has provided Ukrainian police departments with training and equipment for decades. They quickly pivoted to providing training and evidence collection assistance for war crimes, said the program’s director Gregory Ducot.

In Washington, prosecutors began collecting information on American victims from the first hours of the war. Christian Levesque, who is leading the investigation by the department’s human rights section, said her team was examining “anything at all” — from news reports to intelligence — that could possibly yield evidence.

“This is the most important thing that I’ve done in my career,” Ms. Levesque said.

She declined to discuss which cases the department was currently pursuing, although she echoed Mr. Garland’s assessment that they were gaining ground.

The potential universe of cases involving American victims is very small, with no more than a handful having been killed or injured. They include the disappearance of Grady Kurpasi, who was severely injured and captured by Russian forces in fighting near Kherson last fall; Pete Reed, a humanitarian worker who was killed in a missile strike last month while treating wounded Ukrainian civilians in Bakhmut; and James Hill, an American living in Ukraine, who was killed in Chernihiv shortly after the Russians invaded early last year.

The legal bar for indictment is high. Prosecutors would have to prove beyond reasonable doubt that those charged with crimes knowingly attacked an American with the intent to harm — rather than mistakenly attacking noncombatants. No one has been charged under the main U.S. war crimes law since it went on the books in 1996.

The Justice Department could also bring cases under the federal torture statute, but that has also been sparingly used.

Late last year, Congress amended existing law to give U.S. prosecutors sweeping new powers to prosecute war crime offenses “regardless of the nationality of the victim or the offender,” provided the person is present in the United States. That gave U.S. prosecutors similar investigative authority as some international tribunals.

Mr. Rosenbaum — who once brought charges against a concentration camp guard 75 years after the Holocaust based on a waterlogged record found in a shipwreck — believes that this new authority will result in cases, but only if future generations keep up the grinding, time-consuming work.

“We can bring these people to justice,” he said. “But it will take years, probably decades, not weeks or months.”