Proving war crimes isn’t easy – a forensic expert explains what it takes to document human rights violations during conflict, from Afghanistan to Ukraine


Een Oekraïense onderzoeker van oorlogsmisdaden fotografeert de nasleep van een Russische raketaanval in Zatoka, Oekraïne, op 26 juli 2022. <a href="" rel="nofollow noopener" doel="_blanco" data-ylk="slk:Nina Liashonok/Ukrinform/Future Publishing via Getty Images" klasse="koppeling ">Nina Liashonok/Ukrinform/Future Publishing via Getty Images </a>” src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTQ3NQ–/ -~B/aD05NzE7dz0xNDQwO2FwcGlkPXl0YWNoeW9u/″ data-src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTQ3NQ –/–~B/aD05NzE7dz0xNDQwO2FwcGlkPXl0YWNoeW9u/></div>
<p>The United Nations reports that at least 5,237 Ukrainian civilians were killed in the war in Ukraine, but other estimates put the number at more than 10,000.</p>
<p>Ukraine has now launched more than 16,000 investigations into suspected war crimes committed by Russians.</p>
<p>For me and my colleagues – who have been working since 1998 to secure forensic evidence of crimes of this kind in Afghanistan, Guatemala and other places – it is clear that identifying and collecting evidence of international crimes such as the killing of civilians in conflict beyond the capabilities and resources of local police teams, detectives and prosecutors.</p>
<p>It is also likely that the full extent of the war crimes committed by both Ukraine and Russia will not be investigated and possibly prosecuted until after the war has finally ended.</p>
<p>This means that in the event of the war in Ukraine, a new, unbiased judiciary and research organization will probably have to be established to deal with the claims and questions about tens of thousands of victims on all sides.  This will take decades of work and a lot of money, requiring the support of rich countries.</p>
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Een massagraf in Dasht-e-Leili, Afghanistan, werd in 2002 en 2008 onderzocht door experts van Physicians for Human Rights, waaronder de auteur. <a href="" rel="nofollow noopener" doel="_blanco" data-ylk="slk:Stefan Schmitt/Physicians for Human Rights" klasse="koppeling ">Stefan Schmitt/Doctors for Human Rights</a>” data-src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTUyOQ–/ X3roRerOOotgi3_68lkqGA–~B/aD0xMDgwO3c9MTQ0MDthcHBpZD15dGFjaHlvbg–/<noscript><img alt=Stefan Schmitt/Doctors for Human Rights” src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTUyOQ-/ -~B/aD0xMDgwO3c9MTQ0MDthcHBpZD15dGFjaHlvbg–/″ class=”caas-img”/>

Proving war crimes

War crimes, under international law, occur when civilians, prisoners of war, hospitals or schools – essentially anything and anyone not involved in military activities – are targeted during a conflict.

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Both the Ukrainian government and the Donetsk People’s Republic, a Ukrainian breakaway territory occupied by Russians, have since February 2022 prosecuted and convicted both Russian and Ukrainian soldiers for war crimes.

These prosecutions raise questions about the way evidence is collected and handled to support these cases — and its credibility. Ukraine has a history of government corruption, and Donetsk is both unrecognized internationally and supported by Russia, which has a legal system known to tolerate torture.

Past recent conflicts that have led to accusations and investigations of war crimes provide context for understanding the challenges of investigating them independently.

I investigate cases where law enforcement, military and police have allegedly committed crimes against civilians and are not held accountable for it. In many cases, these alleged crimes take place 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 places and document physical evidence of war crimes – take photographs, take notes, take measurements and make sketches to illustrate a potential crime scene. The idea is that other experts can pick up on this evidence and draw their own conclusions about what happened there.

Crime scene investigators like me generally don’t determine whether a war crime has been committed. That is a decision that is reserved for the public prosecutor or a judge who receives the evidence.

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Dode lichamen werden gevonden in een greppel in Lysychansk, Oekraïne, in juni 2022. <a href="" rel="nofollow noopener" doel="_blanco" data-ylk="slk: Madeleine Kelley/SOPA Images/LightRocket via Getty Images" klasse="koppeling ">Madeleine Kelley/SOPA Images/LightRocket via Getty Images</a>” data-src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTQ2OQ–/ 2zhJ2_XIyGYplo9SElTafg–~B/aD05NTg7dz0xNDQwO2FwcGlkPXl0YWNoeW9u/”><noscript><img alt=Madeleine Kelley/SOPA Images/LightRocket via Getty Images” src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTQ2OQ–/ -~B/aD05NTg7dz0xNDQwO2FwcGlkPXl0YWNoeW9u/” class=”caas-img”/>

Lessons from Afghanistan

Shortly after the US invaded Afghanistan in 2001, about 2,000 Taliban fighters surrendered to the Northern Alliance, an Afghan military coalition allied with the US. Later they went missing.

An investigation found that these inmates may have suffocated or died in containers used to transport them. It was suspected that they were buried in a mass grave in Dasht-e-Leili, a desert region in northern Afghanistan.

In 2002, the United Nations invited a group of forensic experts from the non-profit organization Physicians for Human Rights to investigate this alleged mass grave. As part of this team, I documented traces of heavy equipment, human remains and personal items in this area.

Human rights doctors uncovered more than a dozen bodies in a test trench, and autopsies by one of their forensic pathologists determined the cause of death was consistent with asphyxiation. Evidence of medical gloves on the surface of and in the mass grave seemed unusual to me, as it indicated that logistically prepared personnel had handled the remains of the dead. At that time, Afghans had hardly any medical supplies to care for their wounded.

To me it was indicative of the presence of foreign troops with necessary supplies – such as medical gloves – in this spot when the bodies were buried there. Since the US and its allies were looking for al-Qaeda members in late November 2001, this could be a reasonable explanation for their presence.

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In 2008, on a follow-up visit to the area, I discovered two large pits in the desert, indicating that human remains have been removed that may have been buried there. Subsequent analysis of satellite images revealed evidence of a large-scale excavation involving a backhoe and trucks, dating back to late 2006.

Everyone from former Afghan Vice President Rashid Dostum, also a warlord, to US military and government experts gave different answers about what happened there.

The answer to the question of whether war crimes were committed in Dasht-e-Leili remains unsolved to this day. Neither Afghanistan, the US, nor any other country or organization took on the investigation of these deaths.

Medische handschoenen worden gemeten bij een massagraf in Dasht-e-Leili, Afghanistan, in 2002. <a href="" rel="nofollow noopener" doel="_blanco" data-ylk="slk:Stefan Schmitt/Physicians for Human Rights" klasse="koppeling ">Stefan Schmitt/Doctors for Human Rights</a>” data-src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTUyOQ–/ JTtgRRo7FDG_gH_1yzh5gA–~B/aD0xMDgwO3c9MTQ0MDthcHBpZD15dGFjaHlvbg–/><noscript><img alt=Stefan Schmitt/Doctors for Human Rights” src=”–/YXBwaWQ9aGlnaGxhbmRlcjt3PTcwNTtoPTUyOQ–/ -~B/aD0xMDgwO3c9MTQ0MDthcHBpZD15dGFjaHlvbg–/” class=”caas-img”/>

Beyond political interests

Since Ukraine is fighting an active war against Russia, it will not have the independence it needs to honestly investigate and prosecute possible war crimes.

That requires other countries and international groups to help set up an independent, impartial organization to investigate the fate of victims on all sides of the war.

In March, the United Nations Human Rights Department also launched an international commission to investigate human rights violations in Ukraine. But the UN does not identify the human remains or return them to their families.

While the International Criminal Court also investigates war crimes in Ukraine, it tends to focus on high-level cases that go after political leaders and is not tasked with providing answers to the families of all victims.

These investigations do not extend beyond justice, that is, the arrest and prosecution of soldiers or political leaders.

War crimes involving massive casualties leave behind a large number of surviving relatives, all of whom have the right to know the fate of their loved ones. This applies to Ukraine as well as to any other country where international crimes are committed.

Families also have a right to the truth about what happened. This requires an institution with the independence, staff, scientific resources, legal capabilities and money to achieve this understanding.

This article was republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. It was written by: Stefan Schmitt, International University of Florida.

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Former director of the International Forensic Program at Physicians for Human Rights, a non-profit, non-governmental human rights organization. I continue to consult for human rights organizations around the world.


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