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Difficult road to justice in Bucha atrocities

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BRUSSELS (AP) — The gruesome images and stories pouring out of Ukrainian towns like Bucha following the withdrawal of Russian troops testify to depravity on a scale reminiscent of the barbarities of Cambodia, the Balkans, World War II.

The question now: What to do with this suffering?

With revelations from Ukrainian officials that more than 400 civilian corpses had been discovered, a chorus rang out at the highest levels of Western political power, calling for accountability, prosecution and punishment. On Monday, Ukrainian President Volodymyr Zelenskyy called the killings “genocide” and “war crimes”, and US President Joe Biden said Vladimir Putin was “a war criminal” who should be brought to justice.

But the road to holding Russia’s president and other top leaders criminally accountable is long and complex, international lawyers warn.

“Certainly the discovery of bodies that bear the signs of executions – such as gunshot wounds to the head – present strong evidence of war crimes,” said Clint Williamson, who served as the United States’ Goodwill Ambassador for war crimes issues from 2006. to 2009.

“When victims are found with their hands tied, blindfolded and bearing signs of torture or sexual assault, an even more compelling case is presented. There are no circumstances in which these actions are permitted, whether the victims are civilians or military personnel who have been taken prisoner.

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This story is part of an ongoing Associated Press and Frontline investigation that includes the War Crimes Watch Ukraine interactive experience and an upcoming documentary.

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There is no reason to believe that the Russians will recognize war crimes. The Russian Defense Ministry said on Sunday that “not a single civilian has faced violent action from the Russian military”, and Russian Foreign Minister Sergey Lavrov described the scenes to outside kyiv as an “orchestrated anti-Russian provocation”.

The International Criminal Court, which usually prosecutes only a handful of high-ranking perpetrators, has opened an investigation into the atrocities committed in Ukraine. Ukrainian prosecutors have launched thousands of criminal investigations, while prosecutors from Poland, Germany, Lithuania, Latvia, Estonia, France, Slovakia, Sweden, Norway and Switzerland have opened their own investigations. And there have been growing calls for the creation of a special tribunal to try Russia for the crime of aggression in Ukraine.

To build a war crimes case, prosecutors must gather forensic and ballistics evidence, as they would in any murder case, to establish the cause and circumstances of victims’ deaths. They must also demonstrate that the crime was committed in the context of an ongoing armed conflict, which is clearly the case in Ukraine.

To build a crimes against humanity case, prosecutors must further establish that the crimes were part of widespread and systematic attacks against civilians, for example by showing patterns of behavior in the way people were killed in Bucha, Motyzhyn, Irpin and other cities.

Next comes the more difficult task of establishing who is responsible by building a chain of evidence to link the crime scene to key civilian or military leaders. The first link in this chain is often to understand what forces were present when the atrocities occurred and under whose command they were.

“If you want to look at chains of command and perpetrators, it’s important to analyze and gather information on which unit is where,” said Andreas Schüller, program director for international crimes and accountability at the European Center. for constitutional and human rights in Berlin. “You need proof of linking the entire military apparatus. Documents could be leaked, or witnesses could speak up and disclose internal planning operations.

Building a case all the way to the top – to hold Putin and other leaders individually accountable for war crimes or crimes against humanity – will be difficult, legal experts say.

“You have to prove that they knew or could have known or should have known,” said Philippe Sands, a prominent British lawyer and professor at University College London. “There is a real risk that you will end up with trials of mid-level people in three years and the main people responsible for this horror – Putin, Lavrov, the defense minister, the intelligence people, the military and the financiers who support this – will get away with it.

It would be easier to catch Putin for the crime of aggression, that is, the act of waging a ruthless and unprovoked war against another country. But the International Criminal Court does not have jurisdiction over Russia for the crime of aggression because Russia, like the United States, is not a signatory.

In March, dozens of prominent lawyers and politicians, including Ukrainian Foreign Minister Dmytro Kuleba and former British Prime Minister Gordon Brown, launched a campaign to create a special tribunal to fill this legal vacuum and to try Russia for the crime of aggression in Ukraine.

Negotiations are underway on how to set up such a tribunal so that it has broad legitimacy, either through an international body like the United Nations or under the auspices of a collection of individual states. . The Nuremberg Tribunal was established by the Soviet Union, United States, United Kingdom and France to hold Nazi leaders to account after World War II.

Sands, who also backs the initiative, said whatever their legal weight, the images coming out of Ukraine build the political will needed to hold Russia accountable.

“You feel something moving. And I think that’s how the law works. The law does not guide. The law follows, and it follows realities, images and stories, and that’s what makes things happen,” he said.

“The more serious the horrors on the ground, the more calls I get for a crime of aggression tribunal,” he added. “Governments are feeling intense pressure to do something.”

But it may take an even bigger political shift to condemn Putin in any meaningful way. Trials in absentia are not allowed at the International Criminal Court, and even if a special court were set up to try Putin in absentia, a trial without a perpetrator present might ring hollow.

“I really struggle to see how there is a plausible defense to the evidence we are witnessing,” said Alex Batesmith, who served as a United Nations prosecutor in Kosovo and Cambodia and is now a lecturer at the faculty. of Law from the University of Leeds. “But there’s no way on earth that Putin will surrender to the ICC or be arrested and brought to the ICC without a major intercontinental conflict or internal political changes in Russia that don’t seem plausible.”

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