Interviewing survivors of an armed conflict requires experience and delicacy in the face of a trauma that has also left serious physical wounds. Extensive forensic work is necessary to document possible war crimes, which includes not only listening to the victims, but also reviewing all possible data, such as the graphic material contributed by the press that covers the events.
Since March 2, a team from the International Criminal Court (ICC) Prosecutor’s Office has been collecting evidence in Ukraine of possible war crimes or crimes against humanity during the Russian invasion of the country. The ICC prosecution has requested the collaboration of the international community, funds and experts. The Ukrainian authorities have turned to the population to collect data. And the United Nations Human Rights Council has established a commission of inquiry. They are initiatives of a joint effort to open a process against those most responsible for atrocities such as the bombing of the train station in the Ukrainian city of Kramatorsk, which last Friday killed at least 52 people, or the massacre in the town of Bucha , on the outskirts of kyiv. This Tuesday, the president of the United States, Joe Biden, described as genocide the actions instigated by the Russian president, Vladimir Putin, in Ukraine.
Given that the hostilities do not cease and the flow of refugees already exceeds 4.6 million, according to United Nations calculations, gaining time and good coordination are essential for the forensic investigation. “A company of these characteristics does not differ, in principle, from the investigation of an ordinary crime. The difficult thing is to act on the ground with a war going on. You also have to talk to hundreds of witnesses and survivors, and discern if someone may have political interests. The latter, so as not to hinder the search for the truth. It’s not about going, collecting evidence and coming back for analysis,” says Tore Soldal, deputy police chief in Oslo.
Soldal, who worked between 1997 and 2009 as an investigator at the International Criminal Tribunal for the former Yugoslavia (ICTY), explains by phone that they arrived in the Balkans when it was already possible to work safely. Although the war lasted several years [entre 1991 y 2001], we were protected by the UN forces and we had the help of the local police. Thousands of bodies buried in mass graves had to be exhumed. Let’s hope it doesn’t happen now on that scale. On Ukrainian territory, at the moment, everything seems more difficult”.
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Forensic science goes beyond legal medicine, which determines the origin of an injury or the cause of death. Together with the physical samples preserved in good condition, everything from images taken by satellites to speeches or recordings are studied. The records drawn up by local forces at the scene of the crime are scrutinized, and artificial intelligence is also used to try to recognize the suspects. Everything that serves to demonstrate the crime and the intention of its alleged perpetrators. And, among other actions, translators must be recruited to collect the testimony of those who have fled to other countries. As external support the ICC prosecutor’s office has opened a digital portal to which people with information about what is happening in Ukraine can contact. On the work of the team, which will investigate both parties to this conflict, the Court is silent for security reasons.
The responsibility of political leaders
Soldal assures that it is possible to find direct authors of a war crime. Know who they are, where they were, what they did. “If you investigate soldiers and officers, the tests are similar. On the other hand, since the high command directs the troops, it is not necessary to prove that an officer committed the crime on his own. It is enough to show that he was in a position to control the soldiers who did it.” The problem, continues the expert, is linking political leaders to the crimes. “[Slobodan] Milosevic went from President of the Federal Republic of Yugoslavia to President of Serbia, serving under both constitutions. It had to be certified that he gave the orders, or else that he commanded those who gave them. It was complicated”. Could Putin be reached now? “It is possible, but in such a case the tests will be in Russia and not in Ukraine. And there it depends on the type of command conferred by the Constitution [es el comandante supremo del Ejército]the support you have, if you send the soldiers…”.
The work of this expert in the Balkans lasted more than a decade, and he recalls that he was coming and going “at least 150 days a year for 13 years”. Once in the Dutch city of The Hague, headquarters of the ICTY, everything collected was ordered in a special room where criminal, military, or experts in what he calls “open sources” worked. That’s where media images fit in, which can help prove the crimes. Karim Khan, chief prosecutor of the ICC, has declared that he even seeks the collaboration of the Russian authorities in the current crisis.
Former President Milosevic was only handed over by Serbia in 2001, when he was no longer in power, and Soldal recalls that Belgrade was uncooperative in previous years. Accused of genocide and war crimes, the former president died in 2006 in his cell in The Hague without a sentence having been passed. This, together with the slowness of other processes seen by the ICTY, leads the British jurist Geoffrey Nice to demand greater diligence in the Ukraine case on behalf of the victims. He assures that, in the future, “the time spent in the Balkan trials will be seen as an embarrassment and a shame; in Victorian times, Dickens already mocked the slowness of justice”.
Nice acted as chief prosecutor in the trial against the former Serbian president, and has a clear opinion of the war in Ukraine: “This is a case of a crime of aggression committed by Russia, which is guilty, against Ukraine, which is innocent. War crimes have been seen since the beginning, and almost certainly also crimes against humanity. The important thing is that Ukraine goes ahead with the judgment of the world in its favor. That you do not have to wait for processes that may not take place. Putin may never be handed over to international justice; will have to accept it.” Along the same lines, he adds that after the Nuremberg processes, “the winners and the losers of World War II advanced from 1946: among other reasons, because it was clear who was on the right side and who was wrong.”
The chief prosecutor of the International Criminal Tribunal. “Ukraine is a crime scene”
Ukraine is a “crime scene”, the chief prosecutor of the International Criminal Court (ICC), the British Karim Khan, assured on Wednesday during a visit to the city of Bucha, near kyiv. “We are here because we have good reason to believe that crimes within the Court’s jurisdiction are being committed. We have to go through the fog of war to get to the truth,” Khan told reporters in Bucha, where hundreds of civilians were found dead after the Russian occupation, some with their hands tied behind their backs. The chief prosecutor also indicated that a TPI forensic team is already working on the investigation to ensure “separating truth from fiction.” “We have to keep an open mind and we have to follow the evidence,” he added.
Russia denies responsibility for the deaths and its president, Vladimir Putin, says reports of Russian soldiers shooting civilians are “false.”
On the contrary, the Organization for Security and Cooperation in Europe (OSCE) has assured that in Ukraine there are “clear patterns of violations of international humanitarian law (IHL) by Russian forces in their conduct of hostilities”. This has been stated in a report prepared by independent experts. They consider that if Russia had respected IHL “in terms of distinction, proportionality and precautions” when invading Ukraine, “the number of civilians killed or wounded would have been much lower.” The three authors of the report on human rights violations and possible war crimes in Ukraine, Wolfgang Benedek, Veronika Bilková and Marco Sassóli, have found “credible evidence suggesting that even the most fundamental human rights violations have taken place.”
The document indicates that “selective assassinations, forced disappearances and kidnappings of civilians, including journalists” are “patterns” of human rights violations that have been repeatedly documented. If these attacks against the civilian population are shown to have been committed in a premeditated and systematic manner, any such violent act “would then constitute a crime against humanity.”
At the moment, these are the results of a preliminary investigation ordered on March 3 by 45 of the 57 OSCE member states, with the support of kyiv. The investigation covers the events from February 24 to April 1, so it does not include the atrocities discovered in Bucha, and other towns near kyiv, that have been attributed to Russian troops. Russia was invited to cooperate with the expert mission, but refused to provide any information or help.
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