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How do you investigate a war crime?

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There is something derisory in seeing Joe Biden or Justin Trudeau denounce “war crimes” in Ukraine, now that we have images of bodies in the streets of Boutcha. On Monday, the House of Commons voted with one voice: war crimes!

From day 1 of the invasion, the Russian army was committing “war crimes” by attacking civilian populations. This means that “the world”, well aware of this direct war, could do nothing to prevent it. This also means that the fear of being dragged before an illusory international justice does not deter the aggressors.

What is it for, then?

Still: anything that can be done to document these crimes should be.

Montreal lawyer Luc Côté has toured the world of war crimes, genocides and crimes against humanity for three decades. Since that day in September 1994 when he set foot in a Rwanda still strewn with corpses, he has lost many illusions about international justice.

“But you can never say no to victims who want to document rights violations in their country. »

It is an eminently political justice, made up of compromises, pressures, threats and blind spots. Like all international law, ultimately. But that’s no reason to give it up.

Luc Côté had been a criminal lawyer for 10 years when he took a radical career turn: he agreed to take part in an investigation into “human rights violations” in Rwanda. There was no question of a court yet. He was among the first to go and question witnesses about the genocide of 800,000 Tutsis in this small central African country, two months after the end of the massacres.

“It’s quite easy to understand how it happened; but you can never really understand how someone decides to go and kill his neighbor with whom he goes to church, with whom he has always lived in peace because propaganda has made him dangerous. »

Investigating crimes of such magnitude is not so different from an ordinary criminal investigation. You have to meet witnesses. Collect testimonials. To verify.

“Exhuming bodies from mass graves?

– It depends. There were more than 2000 in Rwanda. Some have the syndrome ITUC and think that a forensic anthropologist is needed for every death. The main thing is the testimonials. The bodies that could still be seen, mummified in churches or on the side of the roads two months later, bore the marks of machetes. It corroborated the stories. »

Where things got complicated was when it came to investigating the crimes of the new Rwandan Patriotic Front (RPF) government. Because if the genocide was against the Tutsis, Hutus were also massacred, especially in the camps for the displaced.

“I had arguments with the American ambassador, who said that we had no proof. I saw the victims’ trucks pass! I’m not talking about hundreds, I’m talking about thousands of victims. »

But it was the RPF which controlled the battered country. And investigating the abuses of the RPF meant being expelled, it meant stopping investigating the genocide.

“All countries felt guilty for what had happened. So we had to leave these bits of the investigation.

Luc Côté spent five years as a prosecutor with what became the International Criminal Tribunal for Rwanda. Then he was involved in the one on the former Yugoslavia.

There was absolutely no question of accusing Serbian President Slobodan Milosevic at the start. The Americans were trying to get a peace deal with him. And the evidence was then lacking to trace the chain of command of the massacres in Bosnia, in Srebrenica in particular.

But as soon as Milosevic refused to go to the Rambouillet peace talks, British and American intelligence services provided the intercepted conversations that allowed him to be charged.

The political situation in a country “under investigation” will determine how far investigators can go, and which targets will be excluded. Because the crimes are not always on one side. In a report on the Democratic Republic of the Congo, he identified crimes by 12 separate groups.

“In Sierra Leone, we were able to investigate the actions of three groups. We succeeded in accusing the Minister of the Interior. In Liberia, the Americans did not want us to touch [au président] Charles Taylor; until he became more of a drag than a political advantage, and there they facilitated his arrest. It became known that he has long received money from the CIA. »

It is sometimes humanitarian aid that is threatened with confiscation if a head of state is not delivered.

How do you investigate war crimes in Ukraine when the fighting is raging?

“We can do a lot of remote work now. Collect testimonials. You have to document on the ground, but only up to a point. »

The Russians say the victims in Boutcha are a set-up. “It is true. In Srebrenica, the Serbs said that the people buried in the mass graves were combatants, victims of the bombardments. But on searching, we saw that they had been shot in the back of the neck and had their hands tied. It matched the testimonies. »

As time is limited, “we don’t try to find out who killed whom in each uniform, but rather to look at the top of the pyramid; who responded to what order, given by whom, with what weapons…”

The hope for Luc Côté, now retired, is civilians. The families of the victims, who keep their cause alive, without political bias, tirelessly.

In Argentina, where perhaps 30,000 people “disappeared” (often murdered) during the military dictatorship, it took 25 years of family struggle to begin to get justice. Several Argentine fugitives were tried in Europe. The amnesty law has been repealed in Argentina, trials have taken place, and some abducted children have been found.

“It’s almost poetic, this story…”

But besides that, the International Criminal Court (ICC) “has not demonstrated its competence so far”, with three meager convictions in 20 years to show, which is quite pathetic. “Even indictments, for which the standard of proof required is low, have been quashed by the judges…”

“As for all the rest of the UN, it depends on the interests, the hypocrisy of the nations, the budgets granted. The only way to get a head of state indicted is usually regime change; he is delivered for political revenge, not for justice.

“Also, we denounce one war, but not another. The American crimes in the prison of Abou Ghraib, the “combatant enemies” invented by George Bush, tortured in Guantánamo, the invasion of Iraq… All that could also be investigated. The United States – no more than Russia or China – is not a member of the ICC.

“I understand that many compromises are inevitable. But I lost illusions. Victories, there are not many in this area. You have to think long term…”

So even if Vladimir Putin and his generals will never be brought before a court, in The Hague or elsewhere, it remains necessary to build the case for these crimes, as if it were going to happen. So that this evidence exists against them in history, so that at least not everything is erased from these men and women.

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