Going after war crime perpetrators
July 14, 2022
As Russia's war continues to pound Ukraine's eastern frontiers, the chief prosecutor of the International Criminal Court (ICC) on Thursday called for an "overarching strategy" to coordinate the process of holding the perpetrators of war crimes in Ukraine accountable.
"The simple truth is that, as we speak, children, women and men, the young and the old, are living in terror,'" ICC Prosecutor Karim Khan said, speaking at a Ukraine Accountability Conference in The Hague.
"They're suffering in Ukraine and in so many different parts of the world, grieving about what they lost yesterday, holding their breath about what they could lose today, and what tomorrow can bring. At a time like this, the law cannot be a spectator," he added.
'War crimes being documented like never before'
Since Russia invaded Ukraine in February this year, civilians, local NGOs, international organizations like Human Rights Watch and some EU countries have been involved in collecting evidence of more than 20,000 war crimes committed by Russia in Mariupol, Bucha and other regions of Ukraine.
Elsa Taquet, senior legal adviser at TRIAL international, an NGO involved in fighting impunity for international crimes, welcomed the involvement of global players in documenting crimes in Ukraine but warned that it could bring challenges.
"It is a really positive thing — seeing war crimes being documented like never before," Taquet told DW. "But the problem is that in the Ukraine case it could be difficult to coordinate the investigation and prosecution of mass atrocities during the conflict with so many bodies documenting it.”
'We need an accountability strategy'
As the conference began in the Dutch capital, Russian missiles struck the Ukrainian city of Vinnytsia, to the south-west of Kyiv. Ukrainian President Volodymyr Zelensky called it "an open act of terrorism."
Ukrainian Foreign Minister Dymtro Kuleba tweeted: "Russia commits another war crime…We will put Russian war criminals on trial for every drop of Ukrainian blood and tears.”
The conference was co-hosted by the Netherlands, the ICC and the European Commission. Dutch Foreign Minister Wopke Hoekstra said: "Just like a climate strategy and a COVID strategy, we need an accountability strategy."
According to the ICC, war crimes include violent acts committed during conflicts, against ordinary civilians, people in need of protection, people involved in humanitarian assistance and peacekeeping operations and crimes against their property and fundamental rights.
These "violent acts” include murder, mutilation, cruel treatment and torture, taking people hostage, rape and sexual slavery. They're carried out intentionally using prohibited methods of warfare and are investigated by interviewing witnesses, analyzing photographs and videos, collecting autopsies of victims and carrying out forensic studies.
National authorities usually bear the responsibility of holding the perpetrators of war crimes accountable and also play an integral role in leading the investigation of war crimes in their country.
But the ICC is seen as a court of last resort to hold the perpetrators accountable, when its member country is unwilling to do so.
Ukraine is not a member of the ICC but has requested the court's jurisdiction over its territory since 2014.
Challenges of over- and under documentation
Yet, Taquet reiterated that currently even the ICC could find analyzing evidence challenging with so many players involved in documenting them.
"I think the main challenge in the Ukraine case is that lots of local actors who were not necessarily trained or didn't know how to document and gather evidence of war crimes, were suddenly thrown into the process," she said.
"While it is a good thing, over documentation creates potential traumatization every time you interview victims and even the witnesses. There are also some risks with multiple testimonies being gathered and during the trial, figuring out the difference between each of the testimonies could be challenging," she added.
But she highlighted that during conflicts, including the war in Ukraine, sexual violence cases are often under documented.
"I'm not sure if this is because there is a stigma associated with sexual violence during conflicts or because there is a mistrust in victims' testimonies but in general the international justice system needs to pay more attention in gathering more evidence on sexual violence during conflicts," she said.
'A big shift in international justice'
Top prosecutors from the ICC and Eurojust also agreed to ramp up support to Ukraine's prosecutors by providing necessary legal and technical assistance. Moreover, countries like the UK have also agreed to provide a £2.5 million (2.95 million dollars) package to support the Prosecutor General of Ukraine from 2022 to 2023.
Taquet also said international bodies needed to provide legal avenues for victims and witnesses outside of Ukraine.
"At the moment, with all the refugees fleeing the conflict, it is important to address the needs of those people outside of Ukraine and potentially also document what they've witnessed or have been victims of,” she said.
Taquet said the way in which war crimes in Ukraine will be handled is going to result in "a big shift for international justice."
"The Ukraine conflict is showing that there is a strong momentum at the moment to be more reactive and to use international justice as a tool for deterrence against war crimes around the world," she said.
Edited by: Sonia Phalnikar