why the conflict advances international justice “in an unprecedented way” on war crimes

Real-time investigations, before highly anticipated trials. Since the very beginning of the Russian invasion of Ukraine, launched on February 24, the International Criminal Court (ICC) has been investigating all the abuses that may have been committed in the conflict. As Russian soldiers have already been tried and convicted of war crimes in Kyiv, the ICC is set to hear its first cases “probably by the end of the year [2022]”, announced the European Commissioner for Justice, Didier Reynders.

>> We explain the notion of war crime, a recurring accusation in the conflict in Ukraine

This announcement contrasts with the usually long delays that characterize these complex cases. The ICC currently holds about ten people accused of war crimes, most of which date back to the early 2000s. “every file has its story”as lawyer Jeanne Sulzer, a specialist in international criminal law, explains, the conflict in Ukraine could nevertheless upset the way in which perpetrators of war crimes are judged.

An essential step, the collection of information pointing to abuses committed in Ukraine is carried out on several fronts. NGOs, civilians and States are mobilizing to gather evidence of these crimes, so that those responsible are tried. In addition to the observers present in the field, there are now cyber-investigators, such as those of the Digital Investigations Lab of the NGO Human Rights Watch. They search satellite images, videos published on social networks, survey Google Street View in search of information that can “stand before a court”explains to franceinfo Philippe Dam, director of the European Union branch of the NGO.

“There is a multiplicity and an acceleration of investigations… It is unheard of, it has never been so fast as in Ukraine.”

Jeanne Sulzer, lawyer specializing in international criminal law

at franceinfo

To centralize this evidence, the ICC prosecutor’s office has designed an online portal (in English) which makes it possible to contact its investigators. But watch out for mixing genreswarns Jeanne Sulzer. There are researchers from NGOs, journalists, investigators from the ICC, those from national authorities… Each has their role to play, but not all have the same objectives.”

The files brought by an NGO, even a well-established one like Amnesty International, “will not be automatically admissible” and will need to be carefully considered. “If the prosecution’s case is not solid, it’s a disaster”, justifies Jeanne Sulzer. So, to avoid any inconvenience, the ICC recommends following its fifty-page guide (PDF in English) to better “collect and preserve evidence of international crimes”.

After having seized the ICC, many Member States of the European Union have in parallel launched investigations into the war crimes denounced in the country. “The starting point of these instructions is the principle of universal jurisdiction, which allows war crimes to be judged even if they have been committed in another country”, explains to franceinfo Clémence Bectarte, lawyer and coordinator at the International Federation for Human Rights (FIDH).

In total, around 20 countries are currently looking into reported abuses in Ukraine. “The synergy develops in an unprecedented wayunderlines the specialist. There is a real desire on the part of these different jurisdictions to articulate themselves, to work together, so that the trials, tomorrow, take place in coordination.

Harmonizing investigations is the concern of the European judicial cooperation agency Eurojust, which has launched several initiatives to this end. She first facilitates coordination meetings so that investigators from different countries can share their evidence. The agency also leads a joint investigation team (Joint investigation team, or JIT) which brings together five countries (Ukraine, Lithuania, Poland, Estonia, Latvia, Slovakia) as well as the ICC. Eurojust describes this team as “the most advanced tool for international cooperation on criminal matters”.

Contacted by franceinfo, the agency assumes the small size of this group, “for more efficiency”, but does not wish to reveal the number of ongoing investigations or the budgets allocated to them. In any case, Eurojust enjoys widespread support: thanks to a recent European regulation, the agency is on the point of creating a common and secure database of (physical and digital) evidence.

All these devices, whether new or reinforced, must first make it possible to avoid duplication. “If we have four different jurisdictions prosecuting the same perpetrators, that makes the justice process unreadable”, emphasizes Clémence Bectarte. But who will take care of what business? The distribution of the trials envisaged by the various authorities is still unclear. “This is perfectly normal, assures the lawyer, because there is no fixed rule on the distribution. Everything is being built ex-nihilo.”

“Having so many levels of justice, which mobilized very early and work in real time, is unprecedented.

Clémence Bectarte, lawyer and coordinator at FIDH

at franceinfo

For Gaiane Nuridzhanian, a Ukrainian lawyer specializing in international criminal law, the sharing of tasks should however follow an already proven pattern. “Usually the ICC steps in when a country is unable or unwilling to try [des suspects de crimes de guerre]she recalls. Here, the situation is interesting because Ukraine wants to conduct trials and is able to do so. But there are so many reports that the national judicial system will not be able to process them all.“

According to specialists interviewed by franceinfo, the ICC may only have to try a small number of people, primarily officers and commanders. “These are the most complex cases, because you have to establish the chain of responsibility and go back as high as possible”, notes the lawyer Jeanne Sulzer. Ukrainian justice should concentrate “on the soldiers down the ladder” advances Gaiane Nuridzhanian, who evokes files that are perhaps simpler but much more numerous.

Thanks to international cooperation, the Ukrainian lawyer nevertheless wants to believe that it will soon be possible to “judge war crimes faster, and better”. By coordinating their investigations, the various authorities avoid the victims having to testify twice, limiting the burden on them. “I especially think that more cases should be brought to justice, with better evidence,” forecast Gaiane Nuridzhanian.

Be careful, however, not to want to go too fast. “Some trials can only take place after a major political change, such as the fall of a regime”, illustrates Jeanne Sulzer. Despite the mobilization of the international community, the hypothesis of a trial for war crimes of Russian President Vladimir Putin therefore remains very uncertain. “Nothing is impossible, nuance the lawyer. But that is why it remains important to think about the fight against impunity in a long time”.