The Case for a Deployable Forensic Investigation Capability at the Combat-Team Level
In the early evening hours of 31 March 2022, Russian troops occupying the Ukrainian city of Bucha quickly mounted vehicles and retreated. They left behind the bodies of 458 civilians[i] murdered by a range of methods that could have taken the Rome Statute of the International Criminal Court’s Article 8 (War Crimes)[ii] as a checklist. The scenes in Bucha would be repeated as other Ukrainian cities were liberated from Russian occupation over the months that followed.
Until recently, Australian troops deployed to a combat zone encountering scenes like those uncovered in Bucha would have to draw upon forensic investigation assets at the theatre level for support. Limited in number and no doubt overstretched in a conflict like the one in Ukraine, the response could take days. It may take even longer before an area is secure enough to allow national and international police investigators access.
As the hours, days, and weeks pass, evidence that could identify perpetrators and one day prove them guilty in court is being eroded. Throughout the same period, false and obfuscating narratives spread by the perpetrators’ government,[iii] are similarly eroding public understanding of the truth. In a more ambivalent population than Ukraine’s, the information environment can be easily manipulated.
To respond to scenarios such as the one described above, and a range of other incident types from recent operational experience, 1st Military Police Battalion (1 MP Bn) has fielded a new capability. More accurately, the unit charged with providing policing effects in support of the force has expanded upon the existing forensic investigation capability normally held at the theatre level and moved it down the order of battle to incorporate small, specialised, brick-sized elements at the combat-team level.[iv]
MP specialist investigators can aid a deployed combat team across a wide spectrum of operational tasks, from humanitarian assistance and disaster relief (HADR) through to conventional war. In all contexts, the primary role of the MP forensic investigation team attached to a deployed force element is not investigation of the force, but investigation in support of the force.
The addition of this niche capability at the combat-team level can facilitate significant battlefield effects, particularly in the information and population support fields, with second-order benefits to reputation management and command accountability.
The “forensic” difference
The word “forensic” derives from the Latin “forensis”, meaning “of the forum”.[v] In Roman times, criminal cases would be brought forth and argued publicly in the forum through verbal representations by the accuser and accused. The individual with the best argument, as judged by the public individuals of the forum, would win the case.[vi]
A loss for the accused would instigate a penalty, which would range from a monetary fine through to death by way of being fed to lions in the arena. Our modern law courts are derived from this millennia-old Roman system, albeit with a notable decrease in lion-based punishments. In short, when we describe something as “forensic”, it indicates a relation to courts of law.[vii]
Per this definition, the word “forensic” does not infer a specific methodology, but rather the intent to produce a product for legal argumentation. This distinction is important in establishing the need for an MP forensic investigation capability at the combat-team level. Forensic investigation is simply an exercise in deductive reasoning of which all people are capable.
Most forensic examination techniques are simple, methodical actions that anyone can perform with a few minutes’ training. The “special capability” MP forensic investigators provide is not the application of fingerprint powder to a surface or the use of a swab to collect DNA, but the knowledge, experience, and qualifications to speak – in court under hostile cross examination – to the scientific validity of the methods used and the accuracy of the findings produced.
It is a well-established legal principle that the validity of a specific piece of evidence hinges as much on the accuracy of the tools used to collect it and the qualifications of its collector as it does on any inherent properties of the evidence itself.[viii]
Any soldier capable of performing in combat can handle the rigours of wearing nitrile gloves while putting evidence into bags. It takes a specialist, however, to testify in court as to why a certain evidence item was chosen for collection, why the item serves to prove a fact in issue, why evidence that may have disproved the same fact in issue was sought and not identified, and why it is not possible mistakes had been made at any stage in the collection or examination that may have led to a false conclusion regarding any of the above.
In summary, it is not the ability to collect evidence that distinguishes the MP deployable forensic investigation capability, but the ability to take it to court.
To explore the possibilities, let us consider different types of operational deployment and the role a deployable forensic investigation team can play in support of the force at the combat-team level.
A situation like the one revealed in Bucha as Ukrainian forces recaptured the city early last April presents a dilemma for the commander on the ground. It is clearly necessary to preserve evidence and facilitate the investigation of apparent civilian murders in the battlespace. Any effort to one day hold powerful generals and wealthy kleptocrats accountable for crimes committed under their authority will require rigorous standards of evidence collection and management.
However, an evolving tactical situation, limited manning, and broader battlefield manoeuvre challenges hamper opportunities to bring in external specialist support.
MP deployable forensic investigation teams, attached at the combat team or battlegroup level and operating as part of battlefield clearance teams (BCT), provide sufficient expertise to manage crime scenes and preserve evidence. The investigation of mass civilian murders like those in Bucha will ultimately far exceed the capacity of a small team of junior enlisted MPs, instead requiring the involvement of Australian Federal Police, or similarly qualified and experienced coalition partner experts.
The MP forensic investigation team acts, in this scenario, simply to preserve the evidence until the tactical situation permits higher-level support to reach the location – they are the forensic first responders.
Counterinsurgency and stability operations
“If I’m a terrorist, or a member of Al Qaeda, then show me proof,” a tribal elder proclaims through interpreters to US soldiers who have initiated a raid on his compound in Khost Province, Afghanistan. Whether he knows it or not, the elder, who appears in the opening 10 minutes of a 2011 documentary titled ‘Kill/Capture’, aired by the PBS Frontline program,[ix] is articulating an important distinction in the law of armed conflict.
A captured insurgent does not generally meet the legal definition of Prisoner of War (PW).[x] Instead, the insurgent may be categorised as a criminal detainee.[xi] The distinction is an important one. The status of PW affords the captured person certain rights and privileges to which the criminal detainee is not entitled.
However, while PW can be lawfully interned until the cessation of hostilities, criminal detainees must be tried in court, proved guilty based on evidence that meets the standards of that court, and sentenced to a term of imprisonment. Incorporating a forensic evidence collection capability at the combat-team level aims to mitigate the “catch-and-release” ritual that has frustrated counterinsurgency efforts in recent operations.
At this level of conflict, evidence that exonerates troops of wrongdoing is as valuable as evidence that sends an insurgent to prison. MP forensic investigation personnel at the combat-team level can be on hand to support every use-of-force incident with forensic expertise. Contemporaneous evidence supporting the soldiers’ version of events can be held for decades to protect against potential spurious allegations in the future.
With the essential caveat that evidence is not valid unless it is impartial – investigators cannot falsify evidence or ignore indications of wrongdoing by our own troops – forensic evidence collection of this nature has, for decades, been considered best practice by police agencies the world over, including in Australia. When Australian police employ their most extreme force measures, scenes of crime examiners attend to ensure evidence supporting the police version of events is not lost or obscured.
The expectation that a force element has the capacity to investigate every use of force incident can also serve as a deterrent to troops breaching rules of engagement and demonstrates accountability on the part of commanders. The mere existence of a forensic investigation capability can have a crime-prevention effect on the deployed force, on contractors and locally employed civilians at forward operating bases, and on partnered and host-nation forces.
This capability sends the message that when Australia deploys troops, it does so to support security and the rule of law, not to inflict violence upon the people of a struggling nation. In the current global information environment, optics matter.
Specialist qualifications held within the MP forensic investigation capability, such as disaster victim identification, are in high demand during disaster relief operations at home and abroad. In domestic operations, the Army has the opportunity to supplement existing civilian police capabilities and bolster the whole-of-government response. Internationally, the primary benefit of supporting overwhelmed host-nation police agencies with specialist forensic investigation training and expertise is obvious; however, the second-order effects – building mutual trust and support within the host nation government and populace – are equally powerful.
A team of specialists
MP deployable forensic investigation teams are flexible elements of brick to section strength. The makeup of a team can be adapted to suit mission-specific requirements; however, in the interest of maximising flexibility, teams typically aim to incorporate the widest possible range of specialist qualifications.
A team is always led by an MP corporal investigator, who generally holds one or more forensic specialist qualifications. At least one scenes of crime examiner is regarded as essential to all teams. These team members hold at minimum a Diploma of Forensic Investigation, which qualifies them to identify and collect physical and trace evidence at a crime scene or incident site, conduct preliminary assessments, and refer specific evidence (such as fingerprints, trace DNA or firearms) to experts for further examination.
Although scenes of crime examiners are trained to take still photographs in support of their examination, a deployable forensic investigation team often includes a forensic imaging specialist. This specialisation covers the use of LIDAR scanners and 360-degree cameras to create an accurate 3D model of an incident scene, allowing the scene to be preserved and revisited virtually at any time in the future.
This specialisation supports not only the investigation but the subsequent court case, by allowing the prosecution to place jury members “inside” the scene in order to support their understanding of key locations and sight lines.
In all types of operational deployment there exists a high likelihood of encountering human remains. Two complementary specialisations cover this eventuality. The disaster victim identification specialist is trained to locate deceased persons and conduct preserving actions, as well as the preliminary examinations that will assist in identifying individuals and allow a forensic pathologist to determine cause of death.
The forensic anthropology specialist possesses similar skills but applies them to significantly decomposed remains. For investigations of mass graves and suspected war crimes, determining the age of human remains is a significant factor in establishing culpability.
When Australian troops first deployed to Timor Leste in September 1999, nobody in the island nation owned a mobile cellular phone – the first mobile cellular towers were not erected there until 2003. Since that time, mobile phone ownership in Timor Leste has exploded. By 2020, the developing island nation with a per-capita GDP of US$1,457.83 boasted more mobile cellular subscriptions than people (1.38 million in a population of 1.32 million).[xii]
Similar rates of mobile phone ownership and internet access can be expected in most locations to which Australian soldiers will deploy in the coming years. Modern combat zones are awash with telecommunications and digital data, changing the way forces must operate while also providing new avenues for intelligence collection and law enforcement.
Modern mobile phones record and store all the data necessary to prove that a specific person was in a specific place at a specific time – information that is immeasurably valuable to investigations of all types. The digital forensic specialist within a deployable forensic investigation team can extract data from mobile phones, computers, and digital storage devices to analyse extracted data for intelligence and evidentiary value and secure it for subsequent presentation in court.
A call to action
“The real options that Australia has in the long term are not about how we structure our force but about how we use it,” – General John Baker, having recently retired from the position of Chief of the Defence Force, said before a Senate Joint Standing Committee on Foreign Affairs, Defence and Trade in June 2000.[xiii]
Three years of internal personnel moves, equipment purchases, and specialist courses has created the structure of a deployable forensic investigation platoon within 1 MP Bn. Now it must be used.
Teams are available throughout 2024 to work with units seeking to incorporate serials involving mass graves, war crimes, and battlespace criminal activity into training. Units and sub-units conducting training in cordon and search, counterinsurgency, and stability operations are also encouraged to reach out.
Team members can be called upon to conduct capability briefs for both soldiers and commanders, to build mutual understanding of how the forensic investigation capability can integrate with force elements engaged in a range of operations and mission types.
The modern information environment demands that military actions must not just be quietly legitimate and lawful, but proven to be so with evidence and transparency. The 1 MP Bn deployable forensic investigation team is one way the Army will meet the challenges of the next battlefield.