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

Three hours after the first Russian bombardment of Ukraine, on February 24, Yaropolk Berinykh was already 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 his country. With his team of observers, he has already traveled 156000 Kilometers across the country, questioned More than 1,500 viewers have completed twenty reports.

At the beginning of April, tell on the phone to be “Somewhere” In the center of Ukraine. He won’t say more to protect himself. Some of his colleagues are investigating the Chernobyl power plant, others join Bucha, where many civilian bodies were discovered after the withdrawal of Russian troops. “There is Great psychological pressure. It is very difficult to see the bodies of children, to smell the corpses or to see the rape pictures,” trust.

His interviews with witnesses sometimes lasted for several hours. Because he tries to gather the most accurate testimonies possible from the victims, while ensuring that “Do not exacerbate their shock.”

“Whenever I meet someone, I check everything they say. I ask them what time, weather, what they heard, what noise the bomb made, where it came from, etc.”

Yaropolk Breinich, investigator for the NGO Truth Hounds

in franceinfo

This fieldwork is fraught with danger while the war is still raging. Yaropolk Brynykh is always equipped with a flak jacket and accompanied “Security Manager” In the field, often an experienced member of an NGO, able to make a quick decision to withdraw in case of danger. “We know that human rights activists are targets of the Russian military, and that we risk getting killed,” Slips.

This investigator is in constant contact with his office and other organizations that help him verify testimonies or identify items on the site, such as bomb fragments or ammunition.

From Berlin, Sam Doberley was one of those cyber investigators who has been very active since the start of the war. The director of Human Rights Watch’s Digital Investigations Lab applies investigative techniques at Osint (Open Source Intelligence) to make the best use of freely available data on the Internet, to help colleagues in the field, and to verify the authenticity and location of thousands of photos and videos circulating on social networks.

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

Sam Doberley, online investigator for the NGO Human Rights Watch

in franceinfo

The Digital Investigation Lab also relies on specialists from Ukraine and Russia. In order to be able to get acquainted with the Russian prisoners of war, we analyzed their dialect. We needed someone who could recognize her,” Explains for example Sam Dubberley. Ultimately, his work, like the work 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, it operates rigorously, so that the information can stand up to the court.”confirms Philippe Dam, director of the European NGO branch of the European Union.

To date, several investigations have been opened in international jurisdictions. In early March, the International Criminal Court (ICC) launched an investigation, as did the UN Human Rights Council. To investigate, the ICC can rely on a file NGO work, but it It may also send its own informants. On the ground, explains Clemence Pickart, a lawyer at the International Federation for Human Rights (FIDH).

“The ICC is the only criminal court that can try Vladimir Putin. It has a mandate to target high-ranking officials.”

Clemens Buckart, lawyer at the International Federation for Human Rights

in franceinfo

National courts are also investigating. Ukrainian President Volodymyr Zelensky announced on Monday, April 4 that a “special mechanism” It will be created for Investigate all crimes of the occupiers in [le] country and prosecute them.. This will depend 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 in law to war crimes. “In the face of the most serious crimes, states may institute proceedings for acts committed abroad against their nationals.”Emmanuel Daoud, criminal attorney at the International Criminal Court explains.

in France ,Office of the National Anti-Terrorism Prosecutor (Pnat) It opened an investigation in March after the death of a French-Irish journalist, and then three new investigations in April into suspected war crimes against French nationals. Investigations are entrusted to the Central Office for Combating Crimes against Humanity, Genocide and War Crimes. “French investigators and judges will travel to Ukraine to support the ICC with an international letter of request. At the same time, they will work for open investigations in France.”details the former head of OCLCH, Eric Emeraux.

However, the ICC, like states, does not judge an army, but individuals. Once war crimes are documented, all of these investigations will have to work to trace the lines of responsibility. And that’s the problem. “It is not easy in law to blame the crimes on the military, especially the officers of the highest ranks,” Explains Julien Fernandez, a professor at the University of Pantheon-Assas in Paris.

Investigators will try to search for tangible items left by the troops. “Some systems document a lot, and sometimes we find written orders and names of politicians. We also look for letters and witnesses from within,” It’s about Jane Sulzer, an Amnesty International lawyer in France.

“The goal is not only to keep track of the military responsibilities, but also the political responsibilities of the officials.”

Clemens Buckart, lawyer at the International Federation for Human Rights

in franceinfo

The task is expected to be more difficult because different jurisdictions do not have unlimited resources. “There is a practical challenge: the ICC has been warning for years of a liquidity crunch” Which affects his foundation, points out Julian Fernandez. To deal with this, the Prosecutor of the International Criminal Court launched an appeal for donations. Some countries such as France have committed funds, but the ICC also needs additional staff.

But does Paris have the means to help? The unit specialized in combating crimes against humanity, affiliated with the Paris Public Prosecutor’s Office, currently has only “Five judges on paper. But some of them are no longer in their positions or are already occupied with many other files.”warns Aurelia DeVos, the former first deputy attorney general in charge of this pole.

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

Aurelia DeVos, former head of the unit responsible for combating crimes against humanity

in franceinfo

In order to improve cooperation between national and international jurisdictions, new tools have been developed. In Europe, the European Agency for Judicial Cooperation in Criminal Matters, Eurojust, was established in 2002 with the aim of facilitating the exchange of information between countries. The ICC has also launched a platform to allow those with information regarding abuses committed in Ukraine to contact its investigators.

But until investigations are complete, they will not necessarily lead to prosecutions. 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 International Criminal Court are working together, but no one knows what turn the war will take. “In Cambodia, after the Khmer Rouge, there is no longer an effective judicial system capable of holding a trial”Jane Sulzer remembers.

International Criminal Court She doesn’t have a police force, she can onlyIssuance of arrest warrants, but states have the possibility to refuse to extradite the persons concerned. The extradition of Vladimir Putin also seems highly likely given the current political circumstances, Moscow has withdrawn its signature from the Rome Statute, the international treaty that established the International Criminal Court in 1998. However, for a trial to take place in The Hague, the accused must be present.

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

Jane Sulzer

in franceinfo

Finally, there are legal hurdles at the national level. In France, a ruling issued by the Court of Cassation last year considered that French justice was not competent to try a former soldier of Bashar al-Assad on charges of complicity in crimes against humanity in Syria, because the law in his country did not punish these types of crimes. facts. A similar situation could exist with Russia., points out Aurelia DeVos. The only certainty: war crimes that are not subject to statute of limitations at the international level, can be judged well after the end of the conflict in Ukraine.

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