how are investigations into war crimes conducted and can they lead to trials?

Three hours after the first Russian bombing raids in Ukraine on February 24, Yaropolk Brynykh was already ready to document the conflict. This researcher from the Ukrainian NGO Truth Hounds has been investigating possible war crimes committed by Russia in his country since 2014. He has already traveled 156,000 with his team of observers miles across the country, interrogated more than 1,500 witnesses and completed twenty reports

At the beginning of April he tells on the phone that he “somewhere” in central Ukraine. He doesn’t want to say more, to protect himself. Some of his colleagues are investigating the Chernobyl nuclear power plant, others have joined Boutcha, where many civilians were discovered after the withdrawal of Russian troops. “There is great psychological pressure. It is very difficult to see the corpses of children, to smell the smell of the bodies or to see images of rape.” he trusts.

The interrogations he conducts with witnesses sometimes last several hours. Because it tries to collect the most accurate testimonials possible from victims, while at the same time making sure that “not to aggravate their trauma”.

“When I interview someone, I check everything they say. I ask them about the time, the weather, what they heard, what sound the bomb made, what direction it came from, etc.”

Yaropolk Brynykh, researcher for the NGO Truth Hounds

at franceinfo

This fieldwork, while the war is still raging, is perilous. 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 defenders are being targeted by the Russian military and that we risk death,” he said. he slips.

This detective is in constant communication with his office and other organizations that help him verify the testimonies or identify items found on the spot, such as bombs or ammunition.

Sam Dubberley, from Berlin, is one of those cyber detectives who has been very active since the beginning of the war. The director of Human Rights Watch’s Digital Investigations Lab applies Osint (Open Source Intelligence) research methods to make the most of freely available data on the Internet, to help his colleagues in the field, and to verify the authenticity and location of thousands of images and videos circulating on social networks.

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

Sam Dubberley, cyber researcher for the NGO Human Rights Watch

at franceinfo

The Digital Investigations Lab also relies on specialists from Ukraine and Russia. “In order to identify Russian POWs, we analyzed their accent. We needed someone who could recognize it,” explains Sam Dubberley, for example. Ultimately, his work, like that of dozens of other researchers and journalists, will be able to contribute to the various legal investigations opened against Russia.

Because even though Human Rights Watch does independent work “she works meticulously in the methodology, so that the information can hold up in court”assures Philippe Dam, director of the European Union department of the NGO.

To date, several investigations have already been opened in international jurisdictions. In early March, the International Criminal Court (ICC) launched an investigationjust like the human rights council from ONU. For to investigatecan the ICC rely on the work of NGOs, but they? “may also send own informants” on the ground, explains Clémence Bectarte, lawyer at 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 top officials.”

Clémence Bectarte, lawyer at FIDH

at franceinfo

National courts are also investigating. Ukrainian President Volodymyr Zelensky announced on Monday, April 4 that a “special mechanism” would have been made for “Investigate all crimes committed by the occupiers in [le] country and persecute 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” legally applicable to war crimes“Faced with the most serious crimes, states can initiate proceedings against acts committed abroad against their nationals”explains Emmanuel Daoud, criminal lawyer at the ICC.

In France, thee National Counter-Terrorism Prosecutor’s Office (Pnat) opened an investigation into the death of a French-Irish journalist in March, and three new investigations into war crimes believed to have been committed against French nationals in April. The investigations were entrusted to the Central Office for Combating 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 simultaneously work on the investigations opened in France”describes the former boss of the OCLCH, Eric Emeraux.

However, the ICC, like states, does not judge an army, but individuals. Once the war crimes are documented, all these investigations will have to work to trace the chain of responsibility. And that’s the trick. “It is not easy legally to attribute crimes to the military, especially the officers of the highest ranks,” explains Julian Fernandez, professor at the Paris University of Panthéon-Assas.

Investigators will try to look for tangible elements left behind by the 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, lawyer at Amnesty International France.

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

Clémence Bectarte, lawyer at FIDH

at franceinfo

The task promises to be all the more difficult as the different jurisdictions do not have unlimited resources. “There is an operational challenge: the ICC has been warning of a liquidity crisis for years” that affect his attitude, Julian Fernandez points out. To address this, the ICC Prosecutor has launched a call for donations. Some states, such as France, have allocated funds, but the ICC also needs additional staff.

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

“We’re opening investigations, but the boost doesn’t necessarily come with additional resources, and has been for years.”

Aurélia Devos, former head of the unit responsible for fighting crimes against humanity

at franceinfo

New instruments have been created to improve cooperation between national and international jurisdictions. In Europe, Eurojust, the European Agency for Criminal Justice Cooperation, was established in 2002 with the aim of facilitating the exchange of information between states. The ICC has also been launched a platform to enable those with information about abuses in Ukraine to contact the investigators.

But even completed, the studies won’t necessarily lead to trials. At the international level, the ICC only intervenes if national judicial authorities are unable or unwilling to try the crimes committed on their territory. Right now, 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 justice system that could conduct a trial”remembers Jeanne Sulzer.

the ICC do not have a police force, it is only possiblewarrants for arrest, but countries have the option of refusing to extradite those involved. An extradition of Vladimir Putin also seems highly unlikely in the current political circumstances, as Moscow has withdrawn its signature from the Rome Statute, the international treaty that established the ICC in 1998. However, for a trial to take place in The Hague, the suspect must be present.

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

Jeanne Sulzer

at franceinfo

Finally, there are legal barriers at the national level. In France, a ruling by the Supreme Court of Cassation last year found that the French justice system was incompetent to prosecute a former soldier of Bashar Al-Assad for complicity in crimes against humanity in Syria, because the law in his country such facts. “A similar situation could exist with Russia”, points out Aurelia Devos. The only certainty: war crimes are inexplicable at the international level and can be assessed well after the end of the conflict in Ukraine.

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