Mark Kersten is a senior researcher at the Munk School of Global Affairs and Public Policy and a consultant with the Wayamo Foundation.
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 in the hope that evidence can be marshalled 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 a continuing conflict. It is fairly easy to point to the bombing of a theatre sheltering children in Mariupol, or a massacre in a town such as 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 such as that being conducted by the International Criminal Court (ICC) with the help of states such as 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 backward 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 the chain reaches 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 of 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 prisoners.
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 co-operation 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. 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 difficult. Cases such as 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 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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