How are war crimes investigations conducted and can they lead to prosecutions?

Three hours after the first Russian bombardments in Ukraine, on February 24, Yaropolk Brynykh was ready to document the conflict. Since 2014, this researcher from the Ukrainian NGO Truth Hounds has been investigating possible war crimes committed by Russia in your country. with his teamobservershas already covered 156,000 kilometers from all over the country, questioned over 1,500 witnesses and completed twenty reports.

At the beginning of April, he tells her on the phone to be “somewhere” in central Ukraine. He won’t say more, to protect himself. Some of his colleagues are investigating Chernobyl power plantothers have joined bouchaor of many civilian corpses they were discovered after the withdrawal of Russian troops. “There is great psychological pressure. It is very hard to see the corpses of the children, to smell the odor of the bodies or to see images of violations”, he trusts.

The interviews he conducts with witnesses sometimes last several hours. Because she tries to collect the most accurate testimonies possible from the victims, while at the same time making sure that “so as not to aggravate his trauma.”

“When I interview a person, I check everything they say. I ask him about the time, the weather, what he heard, what noise the bomb was making, which direction it came from, etc.”

Yaropolk Brynykh, researcher at the NGO Truth Hounds

in franceinfo

This field work, while the war continues, is dangerous. Yaropolk Brynykh is always equipped with a bulletproof vest and accompanied by a “security manager” in the field, often an experienced member of the NGO, able to quickly decide to withdraw in case of danger. “We know that human rights activists are targets for the Russian army and that we risk being killed.” slips

This investigator is constantly in communication with his office and other organizations that help him cross-check testimonies or identify items found at the scene, such as bomb fragments or ammunition.

From Berlin, Sam Dubberley has been one of those very active cyber researchers since the beginning of the war. The director of Human Rights Watch’s Digital Investigations Laboratory applies Osint (Open Source Intelligence) investigative methods to make the best use of freely available data on the Internet, to assist his colleagues in the field, and to verify the authenticity and location of thousands of images and videos circulating on social networks.

“We were able to confirm the use of cluster munitions in Kharkiv through on-site testimonies, Google Street View, satellite imagery and photo metadata.”

Sam Dubberley, cyber researcher for the NGO Human Rights Watch

in franceinfo

The Digital Research Laboratory also has specialists from Ukraine and Russia. “In order to identify Russian prisoners of war, we analyzed their accent. We needed someone who could recognize it.” explains for example Sam Dubberley. Eventually, his work, like that of dozens of other investigators and journalists, will be able to contribute to the various legal investigations opened against Russia.

Because even if Human Rights Watch does independent work “In the methodology he works rigorously, so that the information can be sustained in court”says Philippe Dam, director of the European Union branch of the NGO.

To date, several investigations have already been opened in international jurisdictions. In early March, the International Criminal Court (ICC) started an investigationsame as him human rights council from the ONU. For investigatethe ICC can trust the work of the NGOs, but she “you can also send informants of your own” on the ground, explains Clémence Bectarte, a lawyer for the International Federation for Human Rights (FIDH).

“The ICC is the only criminal court that can prosecute Vladimir Putin. It has a mandate to attack the highest-ranking officials.”

Clémence Bectarte, FIDH lawyer

in franceinfo

National courts are also investigating. The President of Ukraine, Volodymyr Zelensky, announced on Monday, April 4, that a “special mechanism” would be created for “investigate all the crimes of the occupants in [le] country and prosecute them”. This will be based on a “Joint work of national and international experts”.

Elsewhere in Europe, Sweden, Germany and France have opened investigations under the “universal jurisdiction” that applies by law to war crimes. “In the face of the most serious crimes, States can initiate proceedings for acts committed abroad against their nationals”explains Emmanuel Daoud, ICC criminal lawyer.

In France, thee National Antiterrorist Prosecutor’s Office (Pnat) opened an investigation in March following the death of a Franco-Irish journalist, then three new polls in April for war crimes that may have been committed against French citizens. The investigations were entrusted to the Central Office for the Fight against Crimes Against Humanity, Genocide and War Crimes (OCLCH). “French investigators and magistrates will go to Ukraine in support of the ICC with an international request letter. They will work at the same time for the investigations opened in France”details the former head of the OCLCH, Eric Emeraux.

However, the ICC, like states, does not judge an army, but rather individuals. Once the war crimes are documented, all these investigations will have to work to trace the chain of responsibility. And that is the problem. “It is not easy in law to impute crimes to the military, in particular to the officers of the highest ranks”, explains Julián Fernández, professor at the Parisian University Panthéon-Assas.

Investigators will attempt to search for tangible items left behind by troops. “Some regimes document a lot, sometimes we find written orders, names of politicians. We are also looking for speeches, witnesses from within”, says Jeanne Sulzer, a lawyer for Amnesty International France.

“The objective is not only to trace the military responsibilities, but also the political responsibilities of the principals.”

Clémence Bectarte, FIDH lawyer

in franceinfo

The task promises to be all the more difficult as the various jurisdictions do not have unlimited resources. “There is an operational challenge: the ICC has been warning about a liquidity crisis for years” what affects his institution, says Julián Fernández. To address this, the ICC prosecutor has launched an appeal for donations. Some states like France have allocated money, but the ICC also needs additional staff.

But does Paris have the means for this help? The unit specialized in the fight against crimes against humanity, within the Paris prosecutor’s office, currently only has “five magistrates on paper. But some are no longer in office or are already busy with many other files”warns Aurélia Devos, former deputy first prosecutor in charge of this pole.

“We are opening investigations, but the momentum is not necessarily accompanied by additional means, and this has been going on for years.”

Aurélia Devos, former head of the unit in charge of combating crimes against humanity

in franceinfo

To improve collaboration between national and international jurisdictions, new tools have been launched. In Europe, Eurojust, the European Agency for Judicial Cooperation in Criminal Matters, was created in 2002 with the aim of facilitating the exchange of information between States. The ICC has also launched a plataform to allow those with information about abuses in Ukraine to contact its investigators.

But even concluded, the investigations will not necessarily lead to trials. At the international level, the ICC only intervenes if national judicial authorities are unable or unwilling to prosecute crimes committed on their territory. At the moment Ukraine and the ICC are working together, but no one knows what turn the war will take. “In Cambodia, after the Khmer Rouge regime, there was no longer a functioning judicial system capable of carrying out a trial”recalls Jeanne Sulzer.

the ICC having no police force, it can onlyissue arrest warrants, but countries have the possibility of refusing to hand over the persons in question. An extradition of Vladimir Putin also seems highly unlikely in the current political conditions, as Moscow withdrew its signature from the Rome Statutethe international treaty that founded the ICC in 1998. However, for a trial to take place in The Hague, the accused must be present.

“The current willingness of many countries to fight impunity will be tested when people have to be arrested.”

Jeanne Sulzer

in franceinfo

Finally, there are legal obstacles at the national level. In France, a ruling by the Court of Cassation issued last year considered the French justice incompetent to prosecute a former soldier of Bashar Al-Assad for complicity in crimes against humanity in Syria, because the law of his country did not punish this type of acts. “A similar situation could exist with Russia”, says Aurélia Devos. The only certainty: war crimes are imprescriptible at the international level, they can be tried long after the end of the conflict in Ukraine.

Leave a Comment