The Doorstep: Poutine peut-il être poursuivi pour crimes de guerre ? avec Ryan Goodman, de la faculté de droit de l'Université de New York

NIKOLAS GVOSDEV: Welcome, everyone, to this edition of The Doorstep podcast. I am your co-host, senior fellow at Carnegie Council, Nick Gvosdev.

TATIANA SERAFIN: And I'm Tatiana Serafin, also a senior fellow at Carnegie Council, welcoming in a few minutes Ryan Goodman, a New York University Law professor, who is also the co-editor-in-chief of Just Security, which has been publishing some great articles on the Russia-Ukraine war, and we will be talking to him about war crimes today, ahead of a very busy week on that topic.

Nick, I wanted to talk to you a little bit about Elon Musk and Twitter because I think the digital space is really important for the doorstep. We just came out of World Press Freedom Day, which is really important considering everything that is going on on the ground.

I am wondering if you have any concerns about our social media and our free speech with this move. I have some thoughts on Elon Musk, but I want to hear what you are thinking about him. It is a really big story, and I want to make sure that we talk about it, because it does also impact what we are going to talk about in a few minutes with Ryan, as well as in terms of collecting information on open-source platforms.

NIKOLAS GVOSDEV: I think that Musk's efforts to acquire Twitter are the latest line in a trend—which some find disturbing and others simply see as market realities—of wealthy, super-empowered individuals with deep pockets who are able to take control of important pieces of communication in the public square—newspapers, broadcast outlets, social media outlets—on which people depend.

We keep going back and forth between whether or not something like Twitter is a private space to which we all who take part in it agree to abide by the rules of the owners—and "he who has the money make the rules"—or are they utilities; are they something that is a way in which people communicate and interact?

I think one of the problems we have had is we keep bouncing back and forth. When people find it useful to say, "Twitter is a private company and it can do whatever it wants as a private company"—because, say, you want someone to be de-platformed from Twitter—that is one thing. On the other hand, then you flip 180 degrees to say, "Well, now it's a public utility and it can't be entrusted to private shareholders and the market."

We have been very inconsistent in this, and I think this is part of this larger debate about access to information and the ability to participate and have your voice heard. To what extent are those rights? To what extent are those privileges? And who is going to pay for it—private capital, the state, taxpayer money? Again, it is not simply with regard to Twitter, but with major newspapers and major broadcast outlets these questions keep coming up.

Then there is the question of: Is this a public service or is this something to be monetized? Certainly some of the things that have been discussed for Twitter would have a real impact on education and institutions or places like ours with an educational mission, where re-tweeting and commenting is really part of what we do. If that is going to be monetized, then that has a real impact on the ability to reach out to an audience, not only with our own material at The Doorstep, but when we comment on stories or things that Doorstep guests have been doing. If all of that is going to be now subject to a pay-for-play approach, then that has real ramifications for the open dialogue and discussion that we are trying to foster.

TATIANA SERAFIN: And certainly it has ramifications for the open-source collection of information that we will be discussing with Ryan right now.

Thank you so much for joining us today, Ryan, on the important topic of documenting war crimes in Ukraine, especially after the EU Commission president yesterday said that the European Union would sanction military officers involved in suspected war crimes in Bucha and Mariupol; she said, "You will be held accountable." I think this sentence encapsulates what we are trying to understand today with you.

In particular, for our audience, let's start at the very beginning with the definition of "war crimes" versus "genocide." I think people are conflating the two when they are looking at the issue, and I think we need to start off with understanding what is the difference and what are people looking into.

First off, thank you again for joining us, and if you can lead us through this for our audience today.

RYAN GOODMAN: Thank you so much for having me on the show.

The baseline understanding of what are war crimes versus what is genocide: War crimes are essentially violations of the Geneva Conventions, which will be very familiar to a lot of people. They are the kinds of atrocities that we might think of being committed by armed forces in the heat of battle or against prisoners of war, the targeting of civilians, and things like that—violations of international humanitarian law during armed conflict. That might be with respect to targeting or it might be with respect to treatment of detainees and the like.

Genocide is also an international crime. It does not have to take place in an armed conflict. It is a very specific crime, in the sense that it is not just a persecution of a civilian population, but it is an attempt to destroy or eliminate the civilian population of a particular type in whole or in part. When I say "of a particular type," it means to destroy, for example, a religious group or a national group of a particular type in whole or in part, wiping them out, extermination in a certain sense, and that is why it is thought of as one of the gravest international crimes imaginable.

TATIANA SERAFIN: President Biden has actually called what Russia is doing in Ukraine a genocide. I think there are investigations going on, though, primarily on the war crimes front.

I want to talk today about collection and how the digital age has changed the collection of information. Once we understand what we are looking for, according to your definition, we have to understand that the digital age has really changed the way we are collecting information. How do you see that changing?

I want to really call out Just Security for doing some great work on this topic, some great articles, looking at what civilians are doing and what human rights groups are doing. Can you talk with us today about how the digital era has changed this idea of collecting data, maybe not just in Ukraine but in other conflicts too?

RYAN GOODMAN: It really has revolutionized in a certain sense evidence that can be put to war crimes trials: civilians, just individuals on the ground, videoing what they see before them as witnesses, uploading it in such a way that it can be easily verified and traceable.

They can provide prosecutors with incredible information. At one level, they can provide prosecutors with information that they can use in their investigations, as leads at a minimum, and the second is they can provide evidence that is so reliable that it can actually be used in trial to prosecute individuals.

Some of this information can also demonstrate patterns of behavior. If you see a particular incident occurring in one area—of, let's say, Ukraine or any particular country—a very important question is if that is actually a pattern. A pattern might be something that we can then begin to infer is actually a part of the policy of the State or of the armed forces, not just some rogue actors. It is also the ways in which the evidence can start to transform that.

Now we have nongovernmental organizations—like bellingcat, which is at the leading edge of this—that are able to also identify the military vehicles that are being used, the battalion commanders who are at "the point of the spear" and therefore are potentially criminal liable for the acts of their subordinates. So it is not just the witnessing of the war crimes themselves, but actually being able to identify who is responsible for them.

TATIANA SERAFIN: I think it is so interesting what you said because here I was reading about Andriy Yermak from Ukraine's Office of the President talking about his "book of torturers," identifying specifically, as you say, the battalion commanders at the point of the spear.

How have things like Elon Musk's satellite links and phones with civilians changed the way that this information can be not only gathered but verified? Can you talk about that a little bit in terms of how it is accessible to a court in a different way than maybe in the past?

RYAN GOODMAN: At a certain level, it is not my technical expertise, but my understanding is that they are able to do things like geolocate, timestamps, and other verifications of the ways in which the information is uploaded, where it's uploaded from, so there are ways in which they can determine if it's authentic or inauthentic.

As I mentioned, it is much easier to enable investigations. It is going to be harder to enable evidence that can be used at trial, but the International Criminal Court (ICC) has in fact used that very kind of evidence in the past.

It is a huge enterprise that they have to go through sorting that information and getting the signal from the noise. So many people are uploading information, at a certain level it actually becomes difficult, given just the quantity that is being uploaded, and then they need to find what can be authenticated as well.

TATIANA SERAFIN: I remember early on in the war bellingcat saying that they were shifting their efforts to just focusing on authenticating data because of the volume of information.

But what strikes me is that we haven't heard much talk of misinformation coming out, fake videos. Perhaps because there are so many people with technical skills way more advanced than even ten or five years ago, we are not hearing much of fake information coming out in terms of creating war crimes that don't exist.

Are you hearing any of that on the ground or covering that in the Just Security world?

RYAN GOODMAN: We are alert to the issue, but similarly have not seen it, but we are always aware that it could be coming down the pike.

In a certain sense, one of the methods of operation of Russian military intelligence is to feed in misinformation and, in fact, to give the kind of misinformation that people are anticipating, so that they expect it to be true because it does fit in with what they are seeing otherwise, but then they can pull the rug out from under it by saying it's inauthentic.

If the prosecutors at any moment ever rely on what is actually misinformation being planted by the Russians, that would be a serious problem. So they have to have a very high threshold and a very tiny margin of error. The prosecutor could present a hundred pieces of what we call open source intelligence (OSINT), and if one of them is misinformation, even if planted by the Russians and revealed to be planted by the Russians, that would be a serious problem. I think everybody is quite alert to that. The authentication is not just of the particular individual piece of data, but that it can be compared with other data that is coming in as well.

NIKOLAS GVOSDEV: That touches on something we have seen from the Russian side—and we have seen other countries do this—that when you have incidents, it becomes, "Well, we just don't know what really happened," "fog of war." We saw that with the claims about Bucha: "Well, who knows when these people were killed and why and who did it?" We saw this in Syria, and so on and so forth.

Has the level of collection and authentication reached a point where we can push back against claims of the fog of war to say, "No, we're very sure about when something happened, who did it, and who the perpetrators are," to push back against that?

Tatiana mentioned misinformation, but also there is this toolkit of just simply saying "the truth is unknowable, therefore, you make claims, we make claims, everyone makes claims, and either the claims are unknowable or unverifiable."

Do we have a high level of confidence increasingly now, because of open-source collection, because of new ways of verifying data—because, as you said, we are looking at patterns and putting it all together—where we can have a high degree of confidence to say, "We know what has happened, we know that crimes have occurred, and we know who the perpetrators are?"

RYAN GOODMAN: There is a really good story to be told here. In fact, we do have such a high volume of authenticated valid information that the information space is able to actually very quickly verify and rebut misinformation. One of the best examples is the Bucha massacres, where the Russians were saying, "Oh, no, this wasn't us, this was the Ukrainian forces that came in afterwards," and then there is satellite imagery from weeks before showing Russian vehicles occupying the town and the cadavers of civilians lining the streets. It has been very good in terms of how quickly that has been activated.

What is also happening to a certain extent is that our society globally and nationally has lost our intermediaries or institutions of trust. Ukrainian authorities have done a very good job of having a high level of trustworthiness when they rebut with evidence. Bellingcat is another example of a high level of trustworthiness. The U.S. intelligence community has also done a very good job and has reoriented itself fairly dramatically in this crisis to declassify material in order to rebut these kinds of claims.

I always think about—in a certain sense a more general thought—the idea of "alternative facts" does not work in a court of law. A court of law will sort out what are alternative facts and what aren't. This is just in the information space of the domain of global public attention. When we actually get to the trials, I think there will be very strong cases being brought by the prosecutors.

TATIANA SERAFIN: Excellent segue into the question I wanted to ask in terms of prosecution, to talk about the different levels. There is that which can happen within Ukraine currently happening, there are regional bodies, there is the International Court of Justice. Where are we? What is the difference? What can Ukraine actually do in this particular instance as an example with these war crimes and the evidence that is being gathered? And against who is it going to be targeted—Putin, the generals?

RYAN GOODMAN: I think the two to three places that I would look for where we can anticipate trials are the Ukraine national authorities and other national authorities who are currently investigating, including Lithuania, Poland, and Germany. Germany has probably got the most sophisticated system in terms of already having tried war crimes out of Syria. So it's the Ukrainian authorities, then other national authorities in the region, and then of course the International Criminal Court.

I do think that it is quite realistic that there will be prosecutions, there will be some forms of accountability, in part because Ukraine has in their custody many Russian soldiers including presumably military officers. President Zelenskyy mentioned they have a pilot who has his instructions on a sheet of targeting civilian objects. Ukraine has at this point killed 12 Russian generals. I think, with time, one of those generals will not be killed but will be captured, so I think it is very realistic that we will actually see trials.

I think the big question is: Will the most senior people who are responsible for this—Putin and his high command—ever see a courtroom? I think there are two answers to that.

One is that it is very unlikely; realistically it is just very unlikely, unless he is thrown out of office.

The second, which I do think is still very likely, is that Putin will be indicted. I think it is very likely that the International Criminal Court, with the evidence it is getting, will indict a sitting head of state of a major world power, Vladimir Putin, and that on its own is quite a bombshell. For better or worse, it is a very complicated situation. It will impede his ability—it currently impedes his ability—to travel internationally, which is another message to the Russian people: "You are led by an individual who cannot represent your State internationally."

But I do think that day is coming, with one footnote, which is maybe a diplomatic deal will be worked out in which the Security Council under the International Criminal Court treaty is able to suspend the investigation, let's say with respect to Putin, and that is part of the peace negotiations.

TATIANA SERAFIN: Interesting.

Just to clarify, I do understand that Ukraine and Russia are not part of the ICC. Is that correct, and does that affect anything that we have discussed?

RYAN GOODMAN: So far it has not affected anything we have discussed, in the sense that a few years ago Ukraine, even though it is not a party to the International Criminal Court Treaty, did enter a declaration with the International Criminal Court, which you can do on an ad hoc basis, and basically said, "From 2015 forward you have jurisdiction over anything that occurs in Ukraine." So the International Criminal Court has complete jurisdiction over any war crimes that are committed in Ukraine's territory by any actors. If they ever went down the path of thinking about crimes against humanity or genocide, they have jurisdiction over that.

The International Criminal Court flatly does not have jurisdiction over the crime of aggression. So the launching of the war itself, even though that is a crime within the Court's treaty, both states must be parties, and they are not.

TATIANA SERAFIN: You tweeted this recently and I wanted to touch upon it because there is the issue of how these war crimes are committed, and you discussed what they are. You tweeted this article from Just Security [about cluster munitions being "missing in coverage" of the war]. Could you talk to us about why that is important; and what has been missing in the coverage, why we need to be paying attention to it?

Part of what we do here at The Doorstep for our audience is bring them to issues they really should be looking at. I have heard the term "cluster munitions." I don't really know what they are, I am not a military person, but why do they matter and why should we be paying attention?

RYAN GOODMAN: This matters—and I can mention another topic that comes under the heading of what is the Biden administration's policy toward war crimes being committed in Ukraine. That is what has been missing.

What reporters have not recognized and commentators have not recognized is that the Biden Administration has been cagey when it comes to one of the most serious war crimes being committed, which is the use of cluster munitions.

What's happening is Russia is using these particular kinds of munitions that include when they explode hundreds—it can be thousands—of little bomblets spread out at random. If used in a densely populated civilian area, it is going to kill civilians. They also end up having a very high dud rate, so they stay there as essentially landmines. They are also apparently very attractive to children, so children pick them up and get killed, lose limbs, things like that.

There is a movement internationally to ban cluster munitions across the board. The United States, Russia, and Ukraine have not signed that treaty. They will maintain the position that cluster munitions can be used.

Therefore, what has been missing is somebody saying to the United States: "Can you please condemn Russia for its use of cluster munitions because you, the United States, we obviously assume, would never use cluster munitions in a densely populated civilian area? You have said you want to use cluster munitions, for example, against a column of tanks on a battlefield." They haven't done it so far.

The piece was written by a former National Security Council official who knows this area extremely well, saying, "Look, the United States can still maintain its current policy and stand up to the world community and say, 'But you can't use cluster munitions in a civilian-populated area like that.'" That is part of the problem, that they haven't done that.

There is also cause for the United States to reflect more deeply upon what the U.S. policy should be with respect to U.S. cluster munitions. That is one concern.

I will just flag another one. The other concern about U.S. policy towards war crimes being committed in Ukraine is that the U.S. government under multiple administrations, Democratic and Republican, has taken the position that the International Criminal Court should not exercise jurisdiction in a country against nationals of a State that are not party to the treaty—for example, in a country like Afghanistan, in which the United States government has said you should not exercise jurisdiction over U.S. nationals for, let's say, engaging in the Central Intelligence Agency torture program.

The big question has been: Will the Biden administration change its policy by supporting the International Criminal Court, which would be exercising jurisdiction over the exact equivalent, Russian nationals in Ukraine?

There is good news to report on that front. It does seem as though they have turned the corner. The U.S. war crimes ambassador Beth Van Schaack said, "We welcome the prosecutor's investigation;" Jen Psaki said, "We welcome the prosecutor's investigation;" and then, for folks like me who closely watch every single word that comes out of their mouths.

Then the war crimes ambassador Beth Van Schaack at the UN Security Council meeting a few days ago said, "We welcome and support," which is very significant. Support means support. It means helping, in all likelihood, with things like sharing of intelligence information. Going back to the early part of our conversation, the best intelligence information is obviously possessed by the U.S. intelligence community. Providing that to the prosecutor would be immensely helpful, as the United States has done in other cases with the International Criminal Court, but not one with this particular makeup in terms of jurisdiction.

TATIANA SERAFIN: How much do you think that this change in policy or movement in change in policy is driven by regular citizens, is driven by what we call here at The Doorstep the "doorstep" concerns?

I ask specifically because I was randomly at a farmers' market this weekend wearing my Ukraine pin. A Vietnam vet came up to me and said, "You're going to win in Mariupol because we're going to give you the weapons." It was such an interesting doorstep support of an issue far away, if you look at the big scope of countries and problems the United States has. It was kind of shocking to me, in this small town in the middle of nowhere, that this conversation happened.

I am wondering what you see as a change in policy at the top. Do you think it is driven by things on the bottom, or do you think it is driven by other countries pushing the United States? Where do you see that push/pull happening?

RYAN GOODMAN: I definitely think that there is a direct relationship to the upsurge of support among the American populace for trying to do something to address what they see on their television screens and on social media and the like in terms of atrocities being committed. If anything, some parts of the American populace are pushing towards an even greater level of U.S. commitment in terms of whether there would be any kind of military commitment like a no-fly zone.

In terms of the accountability piece, I think here is a great measure of that reflection of American public sentiment. The U.S. Senate, which has generally been a little bit skittish about the International Criminal Court, unanimously passed a resolution supporting the International Criminal Court's investigation of Russian war crimes in Ukraine led by Senator Lindsay Graham, and he gave beforehand a press briefing specifically on this topic and could not have been a stronger supporter for the Court. I think that is remarkable.

And there are at least three dozen Republicans on the House side who have also now sponsored legislation—even greater numbers might vote for it—explicitly supportive of the International Criminal Court. I think this reflects bipartisan cross-ideological or non-ideological grounds, in the sense of some kind of forceful response towards the arc of justice bending in a certain sense to deal with the atrocities that we are seeing that are on a scale that is of the worst sort—that, even in our discussion, we have to include whether or not it is genocide.

I think that something very significant that is happening, and it makes it easier for the Biden administration to change policy because of the domestic political space it has to maneuver here.

NIKOLAS GVOSDEV: Can I just ask on that: With the members of Congress do you see any sense, because we are out of Iraq and Afghanistan now, that some of the concerns that legislators might have had about applying these principles have diminished? Or do you think that that is unrelated, that even if the United States was still engaged militarily in Afghanistan, that they would be supporting in the numbers that you have said—unanimously in the Senate, three dozen Republicans in the House sponsoring these measures?

RYAN GOODMAN: That's a great question.

One hat that I wear is a social science hat. I think it has to have a relationship to it. There is just a lack of exposure at present, and in some ways in the future, because the Biden administration policy I think would probably be followed by the next administration, regardless of who it is, in terms of the over-the-horizon strikes. It is just not a presence of U.S. troops on the ground given our technological capabilities, for better or for worse in terms of how we use the technological capabilities, but there is just not the same exposure.

Also, recently the new chief prosecutor for the International Criminal Court on the Afghanistan chapter basically said, "I'm going to prioritize the Taliban." So it is like turning the page. That exposure has been reduced or eliminated.

I agree with you. I think you're right in the sense of presently and in the future, at least for the foreseeable future, the lack of that exposure.

TATIANA SERAFIN: Where do you see the United States on the global stage with this effort? Are we leading, in terms of Germany and Poland, or are we following sentiment?

RYAN GOODMAN: I think that we are leading when it comes to war crimes accountability along with others who are out in front—Germany is one good example, and some of the states that neighbor Ukraine, Poland, Lithuania, Estonia, and others—when it comes to war crimes.

I also think that we are in some ways out there in front on the question of genocide given President Biden's statement. At the end of his statement he also said, "But I'll let the lawyers decide"—like he's basically saying "this is my sentiment, but there is an entire bureaucratic process to make a determination as to whether or not the facts meet the genocidal definition, and the lawyers will be in the room for sure. They will be leading those conversations."

The Canadian House of Commons unanimously noted that it is a genocide. Two Eastern European states have called it a genocide. But that is still a bit of a sprinkling in a sense, so that with President Biden we are kind of out there in front.

Where the United States is not exactly out in front is on the crime of aggression. As I mentioned earlier in our conversation, the International Criminal Court does not have jurisdiction over the crime of aggression, so that's the Russian resort to war in manifest violation of the UN Charter. There is a diplomatic conversation happening right now—there will be a big meeting on Friday in Lithuania, an international conference—to create a special tribunal for the crime of aggression, as was created after World War II at Nuremburg.

There are different machinations of what it might be. It could be the UN General Assembly enters into a treaty with Ukraine. I actually think that one is on the firmest footing if they could get it done diplomatically.

Plan B is kind of an ad hoc coalition of states—apparently there are six now, including Ukraine—that would create a special tribunal to try aggression. The United States is not anywhere there, as far as I can tell, but that also might be a good thing in the sense that if the United States leads it, then it maybe looks like the United States versus Russia. That raises other questions of, to be candid, hypocrisy when it comes to what the United States itself has done in the past.

I also think that one might be one in which the United States might have concerns about how other states in the world in the future could create a special tribunal. You have to think about what stops Russia and Belarus from creating a special tribunal. So that is one where I think there might be a very reasoned basis for why the United States is not leading.

TATIANA SERAFIN: We will look ahead to what is happening on Friday, and we hope to have you back to understand and analyze in a future Doorstep podcast.

Thank you so much for your time today.

RYAN GOODMAN: I really appreciate it. Thanks for the conversation.