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Live updates from Ukraine: War crimes investigations face huge challenges

Credit…Roman Pilipey/EPA, via Shutterstock

A Russian missile strike on a town in central Ukraine on Thursday killed at least 23 people, including three children. Two weeks earlier, missiles crashed into buildings near Odessa, killing 21 people. And for weeks, in the Kyiv suburb of Bucha, civilians bore the brunt of the Russian onslaught – killed on bicycles or walking down the street, or executed with their hands tied.

Indiscriminate Russian attacks on civilian areas have become a feature of its invasion, and this week an international conference in The Hague sought to coordinate an approach to the overwhelming allegations of war crimes in Ukraine.

But investigators face a formidable challenge, with no less than 20,000 war crimes investigations, multiple countries and international agencies at work, and a heavy burden of proof to reach a conviction. To complicate matters further, the investigations are working while the war is still raging. The Kremlin has denied the allegations against its forces and the Russian Defense Ministry has called graphic evidence of atrocities “fake”.

Prosecutors are keen to avoid a situation in which national and international prosecutors overlap in their search for evidence and witnesses. On Thursday, Karim Khan, the prosecutor of the International Criminal Court, stressed the need to coordinate investigations and avoid a “rush” of many parties “running to the crime scenes”.

In The Hague this week, representatives from 45 countries, including the United States and countries in the European Union, heard testimony about the atrocities and pledged around $20 million to help the ICC, the Attorney General of Ukraine and United Nations efforts.

Experts say the International Criminal Court, established in 1998 to deal with cases of mass atrocities, could be an important avenue for Russian accountability, although there are many obstacles to that goal. Neither Russia nor Ukraine are among the court’s 123 member countries, but Ukraine has granted the court jurisdiction over crimes committed on its territory.

Dutch Foreign Minister Wopke Hoekstra told a press conference on Thursday that the Netherlands was considering setting up an ad hoc international tribunal for war crimes in Ukraine.

Ukrainian President Volodymyr Zelensky addressed the conference via video even as rescuers dug through the rubble of Thursday’s missile strike on Vinnytsia, a town far removed from fighting on the eastern front. “It’s an act of Russian terror,” he said.

On Wednesday, US Secretary of State Antony J. Blinken said Russian authorities had“deported” between 900,000 and 1.6 million Ukrainian citizens, including 260,000 children, from their homes to Russian territory, often to isolated regions of the Far East. The illegal transfer of protected persons, he said, is a violation of a Geneva Convention and a war crime.

Russia acknowledged that 1.5 million Ukrainians are currently in Russia, but said they were evacuated for their own safety.

The history of war crimes cases suggests that it would be difficult for prosecutors to bring cases about Russia’s war in Ukraine.

Three of the most significant lawsuits – against Slobodan Milosevic, Charles Taylor and Saddam Hussein – were brought against leaders who were no longer in power; no sitting president has ever been handed over to an international tribunal.

Russian President Vladimir V. Putin enjoys strong support at home and has developed strong ties with the leaders of other major nations, including those of China, Turkey and Iran.

Proving war crimes, and especially proving who ordered a given action, is also very difficult. In Mr. Putin’s case, prosecutors would have to show that he issued specific orders that led to specific atrocities, knew about the crimes, or did nothing to prevent them.

Prosecutors would also have to show that Russian commanders intentionally targeted civilian structures or struck them in attacks that failed to distinguish between civilian and military targets. Obtaining such evidence or testimony may not be possible in the near future, at least while the fighting rages on.

Marlise Simons contributed reporting from Paris.