What an investigation into war crimes, crimes against humanity, and perhaps even genocide in Ukraine looks like

(Photo: Reuters)

With every passing day, fresh allegations of war crimes, crimes against humanity, and even genocide in Ukraine emerge. A small battalion of organizations, international courts, and states have responded by investigating atrocities committed in the country in the hope that evidence can be marshaled and perpetrators held to account. But what does it take to investigate an international crime?

Investigations into international crimes are immensely difficult, especially when there is an ongoing conflict. It is fairly easy to point to the bombing of a theatre sheltering children in Mariupol or a massacre in a town or village like Bucha and determine that an atrocity has been perpetrated. Digital evidence collected and authenticated by an unprecedented number of investigation outfits have helped to expose these crimes. But investigations like that being conducted by the International Criminal Court (ICC) with the help of states like Canada aren’t only seeking to establish what happened; they are trying to find out who is most responsible.

Identifying those criminally liable for war crimes requires what investigators call “linkage evidence,” information that connects an act of atrocity to specific perpetrators. Investigators work backwards by stitching together a chain of evidence. But they are not looking to prosecute foot soldiers – the Russian officers shelling Ukrainian towns from tanks or jetfighters. They are trying to pin responsibility on more senior military and political figures. The hope of many is that that chain reaches all the way to the Kremlin and President Vladimir Putin himself.

Investigators will have to build a matrix of evidence that connects atrocities, perpetrators, and a structure of authority all the way up to Moscow. Doing so would illustrate a conspiracy among the Kremlin’s ringleaders to commit international crimes. But that won’t be easy. Neither Mr. Putin nor those in his inner circle have stepped foot in Ukraine during the war. So, how can investigators build a case against the Russian President and his coterie in Moscow?

A couple of strategies could be in play. In villages and towns attacked by Russian forces, there are invariably abandoned tanks and other military hardware. Their contents could yield important evidence. Every cellphone, computer, or manual left behind can help investigators build a case that reaches further up the echelons of power.

There have also been widespread reports of hundreds Russian officers being detained as prisoners of war (POWs). Some are turning against Mr. Putin’s war. While investigators need to be sensitive, these POWs could be interviewed and provide evidence against those giving them orders. This is particularly true if senior-level figures are among the POWs.

The ICC and states might likewise start with prosecuting low- or mid-ranking perpetrators and use those trials to build cases against senior figures. They offer those perpetrators plea deals in exchange for their cooperation and testimony in cases involving Russian military and political leaders.

All of this could eventually lead to prosecutions of war crimes and crimes against humanity. Genocide is much trickier.

It is important to stress that crimes against humanity, which are easier to investigate and prove in a court of law, are no less grave than genocide. While genocide is often presented as “the crime of all crimes,” there is no hierarchy under international law that puts it on top. Crimes against humanity are seen as so outrageous that, as their name suggests, they are not only crimes against their victims, but against all of humanity.

Still, some commentators and even world leaders have suggested that Russia’s actions in Ukraine now constitute genocide. Genocide need not require six million people to be exterminated, as in case of the Holocaust, or 800,000 people to be butchered, as what happened in Rwanda during 1994 Rwandan Genocide. The key to any determination of genocide is not the scale of the atrocities but the intent of perpetrators to destroy a group in whole or in part. In other words, Russian forces would have to specifically intend that their actions contributed to the annihilation of Ukrainian people as such.

Finding evidence of intent is notoriously difficult. Cases like the Holocaust and Rwanda were somewhat straightforward, as both the Nazis and the Hutus were blatant about their genocidal intentions. In Ukraine, some rhetoric, including Mr. Putin’s belief that the country is a historical fiction and Moscow’s ominous mission of “de-Nazification” might be used as signals of genocidal intent. But as it stands, there is no smoking gun, no evidence that it is the identity of Ukrainians that is animating the violence against them.

Investigators won’t pigeon-hole themselves into attempting to find evidence of genocide. They will undertake the painstaking task of following the evidence and seeing where it leads. What many want to know is: Will it work? Will Mr. Putin ever face justice?

The honest answer is that we don’t know. But something important is happening. It used to be that the international community would wait for a court to be created before investigations into atrocities commenced. The order is now flipped: we collect and preserve evidence whether or not a tribunal is able to use it or not.

When it comes to evidence collection, time is of the essence. When it comes to Mr. Putin, time is running out.

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A version of this article originally appeared in the Globe and Mail.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Crimes against humanity, Genocide, International Criminal Court (ICC), Investigations, Ukraine, War crimes. Bookmark the permalink.

3 Responses to What an investigation into war crimes, crimes against humanity, and perhaps even genocide in Ukraine looks like

  1. Many are now also looking at the Atrocity Crimes that have been committed & are being committed in the democratic tepublic of Yemen.

    Even the NYT has been reporting on the monarchists & monarchy-led War in Yemen as clearly alluded by one of their own & the Criminal Responsibility for Atrocity Crimes that have been committed & are being committed on the democratic republic’s soil against Yemeni children & civilians etc.

  2. The Nuremberg trials had a paper trail dating from the 1920s to use as evidence including testimonies. What the west currently has are articles from western news outlets with a few short videos. Crimes against Peace and Crimes against Humanity require solid evidence. When the US was charged with Crimes against Humanity and genocide they withdrew from the ICC. The evidence by US-supported Israel are clear yet it does not make news headlines https://ccrjustice.org/home/press-center/press-releases/us-complicit-israel-s-war-crimes-and-crimes-against-humanity

  3. Great points Mark.

    Looking at Syria too.

    History & International Law will soon prove that Armed Foreign Terrorists, whom the UN & international cimmunity should not even consider as combatants or belligerents, in order to fully strip them of all necessary IHL protection – which theoretically furthers any UN peace initiative, do not contribute to everlasting peace nor stability. Nor do they & their backers actually give a shit for the consequences of their criminal actions. Dead innocent Syrian children & civilians continue to pile up thereafter.

    https://www.bbc.com/news/world-asia-28755907

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