It is also likely that the full extent of war crimes committed by both Ukraine and Russia will not be credibly investigated and possibly prosecuted until after the war is finally over.
I am surprised that arrest warrants are being issued for the kidnapping of Ukrainian children. To successfully prosecute this crime, investigators will need to prove that the alleged kidnappers not only took the children against their will, but also had no intention of returning them to their legal guardians. This can be more difficult to prove than other types of war crimes.
To put these upcoming indictments into perspective, it’s also useful to remember that the International Criminal Court, an independent court based in The Hague, often known as the ICC, tends to focus on high-profile cases that go after political leaders and has no the task of providing answers to the families of all the victims.
prove war crimes
War crimes, under international law, occur when civilians, prisoners of war, hospitals or schools, essentially anyone and everything not involved in military activities, are attacked during a conflict.
The Ukrainian government and the Donetsk People’s Republic, a breakaway region of Russian-occupied Ukraine, have prosecuted and convicted Russian and Ukrainian soldiers for war crimes since February 2022.
Ukraine has so far convicted 25 Russian soldiers for war crimes in Ukraine. These prosecutions raise questions about how the evidence to support these cases is collected and handled, and about credibility.
Ukraine has a history of government corruption and Donetsk is not internationally recognized and backed by Russia, which has a judicial system known for tolerating torture.
I investigate cases where law enforcement, military and police are alleged to have committed crimes against civilians without accountability. In many cases, these alleged crimes occur during a civil war, such as the Guatemalan civil war in the late 1970s and early 1980s, or the Rwandan conflict and genocide in the mid-1990s.
This means that I often work with international organizations such as the United Nations to travel to these locations and document physical evidence of war crimes: taking photographs, taking notes, taking measurements, and drawing sketches to illustrate a possible crime scene. The idea is that any other expert can collect this evidence and draw their own conclusions about what happened there.
Crime scene investigators like myself don’t usually determine if a war crime was committed. That is a decision reserved for the prosecutor or a judge to whom the evidence is presented.
Beyond political interests
Considering that this war is being fought between the Ukrainians and the Russians, but involves other countries such as the United States, any independent effort to investigate war crimes will raise questions about credibility.
In this context, one must consider whether an independent investigation and prosecution is possible. The ICC is perhaps the best candidate, although it is far from immune to political pressure, particularly from powerful countries.
The ICC has a specific mandate to prosecute people allegedly responsible “for the most serious crimes of concern to the international community.” This includes genocide, crimes against humanity, and war crimes. The forcible transfer and deportation of a group of people is a war crime.
But the ICC is not tasked with investigating the fate of victims on all sides of the war. This will require a separate effort, decades of work, and will cost a great deal of money, requiring the support of rich countries.
Since its creation in 2002, the ICC has charged more than 40 people, all from Africa, and convicted 10 of them. While 123 countries are part of the ICC, meaning they have signed to support its work, neither Russia nor Ukraine have ratified the treaty allowing the ICC to investigate crimes on their territories or by their forces.
The Russian Foreign Ministry responded to the ICC’s March 17 announcement by saying that the arrest warrant “does not make sense” for Russia, as it is not part of the ICC.
The United States has also never ratified the founding treaty of the ICC, with the justification that it would not accept the prosecution of US soldiers by a foreign court.
However, Ukraine has given the ICC limited jurisdiction to investigate crimes there since 2014.
In some cases, the ICC has not been able to successfully prosecute people even when issuing indictments. The court in 2009 and 2010, for example, issued indictments against Omar al-Bashir, a former head of state in Sudan, for his role in carrying out genocide and directing war crimes in Darfur. However, despite the fact that al-Bashir traveled internationally, no authority in any country he visited ever arrested him, despite the ICC warrant.
Prove that there were kidnappings
Russian forces have moved at least 6,000 Ukrainian children to camps and facilities across Russia for forced adoptions and military training, according to a March 2023 report by the Conflict Observatory, a US State Department-backed program.
Showing sufficient evidence that Russia forcibly abducted the children and did not intend to return them to their legal guardians would likely involve family members of the children giving witness statements. That is unless the ICC prosecutor has obtained Russian military documents or communications that clearly indicate that these are involuntary kidnappings.
Contrast this with trying to prosecute Russian military commanders and leaders for carrying out multiple bombings of non-military sites in Ukraine, such as hospitals or schools. It would be relatively easy to provide evidence that the attacks on these sites constituted war crimes, as long as there is no evidence that these sites lost their protected status under international law, such as evidence that a bombed hospital or school was used. for military purposes. purposes
War crimes involving large numbers of victims leave behind a multitude of surviving family members, all of whom have the right to know the fate of their loved ones.
But it is important to remember that the ICC’s prosecution of any war crime will not extend beyond the arrest and prosecution of individual soldiers and political leaders. The court is not responsible for repatriating children to their respective families.
Stefan Schmitt is a forensic scientist with experience in crime scene investigations and forensic anthropology at Florida International University’s Center for Global Justice and Forensics. He has worked for the International Criminal Tribunals for Rwanda and the former Yugoslavia.
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