Three hours after the first Russian bombardments in Ukraine, on February 24, Yaropolk Brynykh 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 156,000 kilometers across the country, questioned more than 1,500 witnesses and completed twenty reports.
At the beginning of the month of April, he tells on the telephone to be “somewhere” in central Ukraine. He won’t say more, to protect himself. Some of his colleagues are investigating at the Chernobyl power plant, others have joined Boutcha, where many civilian corpses were discovered after the withdrawal of Russian troops. “There are great psychological pressure. It’s very hard to see the corpses of children, to smell the odor of the bodies or to see images of rape”, he confides.
The interviews he conducts with witnesses sometimes last for several hours. Because it tries to collect the most precise possible testimonies from victims, while ensuring that “not to aggravate their trauma”.
“When I interview a person, I check everything they say. I ask them about the time, the weather, what they heard, what noise the bomb was making, from which direction did it come, etc.”
Yaropolk Brynykh, investigator for the NGO Truth Houndsat franceinfo
This field work, 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, capable of quickly deciding to withdraw in case of danger. “We know that human rights activists are targets for the Russian army, and that we risk death,” he slips.
This investigator is constantly in communication with his office and other organizations that help him to cross-check the testimonies or identify elements found on the spot, such as fragments of bombs or ammunition.
From Berlin, Sam Dubberley has been one of those cyber-investigators who have been very active since the start of the war. The director of Human Rights Watch’s Digital Investigations Lab applies Osint (Open Source Intelligence) investigative methods to make the best use 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 managed to confirm the use of cluster munitions in Kharkiv through on-site testimony, Google Street View, satellite images and photo metadata.”
Sam Dubberley, cyber-investigator for the NGO Human Rights Watchat franceinfo
The Digital Investigations Lab also relies on specialists from Ukraine and Russia. “To be able 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, she works with rigor, so that the information can hold up in court”assures 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) launched an investigation, as did the UN Human Rights Council. To investigate, the ICC can rely on the work of NGOs, but she “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 target the most senior officials.”
Clémence Bectarte, lawyer at FIDHat franceinfo
National courts are also investigating. Ukrainian President Volodymyr Zelensky announced on Monday 4 April that a “special mechanism” would be created for “investigate all the crimes of the occupiers 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” which applies in law for war crimes. “Faced with the most serious crimes, States can launch proceedings on acts committed abroad against their nationals”explains Emmanuel Daoud, criminal lawyer at the ICC.
In France, thee National Anti-Terrorism Prosecutor’s Office (Pnat) opened an investigation in March after the death of a Franco-Irish journalist, then three new investigations in April for war crimes likely to have been committed against French nationals. 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 letter of request. They will work at the same time for the investigations opened in France”details the former boss of the OCLCH, Eric Emeraux.
However, the ICC, like States, does not judge an army, but individuals. Once the war crimes have been documented, all these investigations will have to work to trace the chain of responsibility. And that’s the rub. “It is not easy in law to impute crimes to the military, in particular to the officers of the highest ranks”, explains Julian Fernandez, professor at the Parisian University Panthéon-Assas.
Investigators will try to search for tangible elements left by the troops. “Some regimes document a lot, we sometimes find written orders, names of politicians. We are also looking for speeches, witnesses from the inside”, relates Jeanne Sulzer, lawyer at Amnesty International France.
“The objective is not only to trace the military responsibilities, but also the political responsibilities of the principals.”
Clémence Bectarte, lawyer at FIDHat 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” which affects his institution, points out Julian Fernandez. To deal with 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 aid? The unit specializing in the fight against crimes against humanity, within the Paris public 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 first deputy prosecutor in charge of this pole.
“We are opening investigations, but the impetus is not necessarily accompanied by additional means, and this for years.”
Aurélia Devos, former head of the unit responsible for combating crimes against humanityat franceinfo
In order to improve collaboration between national and international jurisdictions, new tools have been put in place. In Europe, Eurojust, the European Agency for Judicial Cooperation in Criminal Matters, was created in 2002 with the aim of facilitating the sharing of information between States. The ICC has also launched a platform to allow those who have information relating to abuses committed in Ukraine to contact its investigators.
But, even completed, 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 try crimes committed on their territory. For 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 not possessing a police force, it can onlyorder arrest warrants, but countries have the possibility of refusing to hand over the persons concerned. An extradition of Vladimir Putin also seems very unlikely in the current political conditions, Moscow having withdrawn its signature from the Rome Statute, the international treaty which founded the ICC 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 against impunity will be tested when people have to be arrested.”
Jeanne Sulzerat franceinfo
Finally, there are legal obstacles at the national level. In France, a judgment of the Court of Cassation handed down last year deemed French justice incompetent to prosecute a former soldier of Bashar Al-Assad for complicity in crimes against humanity in Syria, because the law in his country did not punish not those kinds of facts. “A similar situation could exist with Russia”, points out Aurélia Devos. The only certainty: war crimes being imprescriptible at the international level, they can be judged well after the end of the conflict in Ukraine.