Eurasia Press & News
I still recall the first time I saw a defendant accused of crimes against humanity admit guilt in court. It was 2008. I had been a journalist for a few years and had covered trials at the UN-backed International Criminal Tribunal for the former Yugoslavia in the Hague and at the Bosnian War Crimes Chamber. But this was different.
Vaso Todorović looked a lot like other defendants I had seen: He sat with slumped shoulders, eyes glued to the ground, barely making eye contact with anyone in the courtroom, jumpy when the clerks or judges called his name. But after the charges against him were read, the prosecution and defense explained that the former police officer — one of the first people in Bosnia to be charged with the killings of Bosnian Muslims in Srebrenica in July 1995 — was prepared to admit guilt.
There are different types of investigations into genocide and crimes against humanity. Some happen within days of an atrocity and their value is in revealing crimes soon after they happen, while others are published years after crimes take place.
The defense stated two reasons why Todorović should be given the minimum sentence of five years — the first was he had agreed to testify in every single genocide-related case in Bosnia and Herzegovina and confirm there had been a clear instruction not to leave anyone alive in Srebrenica almost a fortnight before the actual attack began, a key element in proving the systematic nature of the crime of genocide in proceedings against other suspects.
Second, the court heard that Todorović himself did not seem to have genocidal intent in Srebrenica, but rather was part of a widespread and systematic attack which resulted in the killings of more than 1,200 men and boys. When the prosecutor amended the charge against Todorović — from accomplice to genocide to the lesser charge of being responsible for crimes against humanity — he agreed to plead guilty.
The total death toll in the Srebrenica massacre, which was committed by Bosnian Serb military and police forces, was over 7,000 men and boys, while around 40,000 women, children, and elderly were expelled from their homes. Roughly 50 people have been convicted in the Hague and in the capitals of the Western Balkans countries — Sarajevo, Belgrade, and Zagreb — for those crimes, the vast majority for the two most “organized” types of crimes under International Criminal Law: genocide and crimes against humanity.
Crimes of War
Genocide was criminalized for the first time in the immediate aftermath of World War II by a UN convention adopted unanimously by the UN General Assembly in 1948. The most heinous of crimes in war and peace, is also the most difficult to prove. This is because in order for genocide to take place, there has to be an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group” and for this destruction to be carried out through killings, abuse, inflicting unbearable living conditions, prevention of births, or forcible transfers of children.
Crimes against humanity can occur in peacetime, but they are more common in war. For crimes against humanity to occur, the baseline crimes — such as killings, torture, abuse, sexual violence, or other acts — must be part of a widespread or systematic attack against civilians. The perpetrator must know of this larger-scale assault and their acts must contribute to that attack in some form.
Trials for genocide and crimes against humanity are slow. Even now, decades after Srebrenica, there are still several ongoing cases related to the genocide.
Both genocide and crimes against humanity are most clearly defined as legal terms in the 1998 Rome Statute, which established the International Criminal Court, and both crimes can also be found in the criminal codes of many countries. Many states have implemented the crime of genocide in domestic legislation, although not all have used the UN definition. Multiple states have also included crimes against humanity in their domestic legislation, especially after ratifying the ICC Rome Statute.
As is clear from the definitions, both genocide and crimes against humanity are systematic crimes and require more than proving the individual acts took place. Both crimes will be committed as part of a pattern, often on a large scale, and both contain elements that require proving the perpetrator(s)’ intent or knowledge of the acts, for example by proving that they knew of an explicit or implicit plan or policy in the case of genocide.
Although individual testimonies of brutality are insufficient proof of either genocide or crimes against humanity, journalists and even investigators have to collect evidence from individual survivors and victims. This is crucial for two reasons.
Firstly, while it is armed forces who most commonly commit genocide or crimes against humanity, these units and their leaders rarely leave documents that reveal their plans. Instead, the evidence of crimes often comes from individual testimonies which may reveal an implicit or explicit plan or policy. Secondly, the experiences of multiple survivors can reveal patterns or similar timelines, which may indicate systematic crimes targeted against a specific group.
Journalists and other investigators should always:
Take the time to talk to survivors and those who were close to a crime scene, or the first to arrive.
Gather testimonies to see if there is an overlap in the accounts being given. This is particularly important if investigating crimes that took place in the past, but it also applies to real-time reporting.
Try to find organizations that support victims and survivors in order to speak to multiple witnesses.
Be cautious with language. When reporting on acts that may constitute war crimes, but which have not yet been proven in court, reporters should refer to “alleged” or “possible” war crimes. (Read more on this in chapter one).Interviewing traumatized people is difficult and should not be underestimated. Journalists need to be aware of the psychological effects replaying a traumatic event can have on an interview subject, but hearing such accounts can also have an impact on journalists as well. The Dart Center for Journalism and Trauma and Zero Tolerance have helpful resources to help journalists to prepare, but there are a number of key practices reporters can put in place: provide a safe space when interviewing victims; explain the reason for the interview; monitor your subject and, if needed, stop the interview; don’t ask interrogative questions; and ensure the person feels they have control over the situation.
There are many domestic and international non-governmental organizations (NGOs) and civil society organizations that work with survivors, victims, and witnesses. Make sure to follow their reports, talk to them about what they are seeing, and gather information. Some good examples of NGOs that can become valuable resources are TRIAL International, the Commission for International Justice and Accountability, the Clooney Foundation for Justice, and other similar associations.
Journalists should be familiar with international organizations that monitor human rights abuses in wartime, such as Amnesty International, Human Rights Watch, and UN agencies such as the Office on Genocide Prevention whose role is to issue reports on the prevention of genocide and systematic hateful incidents, as well as the office of the UN High Commissioner for Human Rights. It is also important to connect with international institutions that play an important role in gathering evidence, such as the International Commission on Missing Persons. These organizations have investigators on the ground whose testimonies can help build stories. Additionally, their reports can be helpful in trying to determine whether crimes have reached a systematic scale.
Perhaps the most valuable piece of advice for investigating and reporting about genocide and crimes against humanity is understanding the framework of international humanitarian law, the law related to war, and international criminal law, the body of law which creates individual criminal responsibility for the most serious of international crimes.
Interviewing traumatized people is difficult and should not be underestimated. Journalists need to be aware of the psychological effects replaying a traumatic event can have on an interview subject.
Understanding these issues is crucial in terms of being precise when we can speak about systematic crimes which can potentially be classified as genocide or crimes against humanity. But also because the trials themselves provide an avenue to gather evidence, make connections between sites of crimes and perpetrators, and generally understand contexts of events within which crimes take place.
Prosecutions of individuals for genocide and crimes against humanity can take place in the International Criminal Court, but this court can only exercise jurisdiction in certain cases, for example in countries that have signed on to the so-called Rome statute. Although many countries are not signatories to the statute (including China, Israel, and the US), the Court is still active and has a great resource section for learning about international justice. The International Court of Justice, also known as the “World Court,” is a different court that only deals with state responsibility. It can find states (as opposed to individuals) responsible for violations of international law, including for genocide, but not crimes against humanity or war crimes, as these are crimes of individual responsibility.
Trials for international crimes — genocide and crimes against humanity, but also war crimes, for example against civilians and prisoners of war — often take place in specialized international and hybrid domestic-international courts. Some of these include the International Residual Mechanism for International Tribunals, Kosovo Specialist Chambers, and the Special Tribunal for Lebanon. The EU has already announced a similar system will be put in place to prosecute alleged crimes of war such as genocide and crimes against humanity in Ukraine related to the Russian invasion.
Finally, the largest number of proceedings for international crimes during war (including genocide and crimes against humanity) occur at a local level. However, because of the universal jurisdiction principle over international crimes, this does not mean that they only occur in the locations where atrocities took place. For example, there are now dozens of crimes against humanity trials for crimes in Syria taking place across Europe, especially in Germany and the Netherlands, where defendants or victims and survivors now reside.
Considering that genocide and crimes against humanity are systematic crimes and require a legal understanding, proceedings before courts provide a key platform for accessing evidence, gathering testimonies, and understanding the complexities required to prove a pattern necessary for the systematic reality of these crimes. Gathering evidence in trials of individual war criminals, for example of low-level officials, may help to demonstrate a broader pattern of violations which could indicate that the higher levels of authority may be responsible for crimes against humanity or genocide.
In order to collect as much information as possible from these proceedings, journalists need to refine their methods and increase their background knowledge of relevant laws, the proceedings, and the courts themselves. The reporting handbook from the Institute for War and Peace is an invaluable resource on effective court reporting. The handbook provides valuable background into how courts operate, as well as a hands-on guide on how to cover the actual trials. There are organizations that specialize in monitoring trials, such as the Humanitarian Law Center in Serbia, the Balkan Investigative Reporting Network in Kosovo and Bosnia and Herzegovina, as well as international specialized outlets and journalists who specialize in international crimes. Finally, there are lawyers who specialize in international humanitarian law and international criminal law, and some, such as the American lawyer Peter Robinson, publish digests of recent international court decisions, which can be extremely helpful.
In international crimes proceedings, indictments and verdicts are fully public, as well as most hearings. This means that the vast majority of evidence will be made publicly available as well, which provides an avenue to gather evidence that may be usually difficult to obtain, such as intelligence memos and military orders.
That said, journalists should take special care when reporting from trials to understand the legal decisions related to confidentiality and not to reveal information or identities of protected witnesses. The International Criminal Tribunal for the former Yugoslavia, and other international and domestic tribunals prosecuting genocide, crimes against humanity, and war crimes, can find journalists in contempt of court for disclosing such information.
Gathering evidence in trials of individual war criminals… may help to demonstrate a broader pattern of violations which could indicate that the higher levels of authority may be responsible for crimes against humanity or genocide.
Finally, when investigating genocide and crimes against humanity it is important to remember that since these crimes are systematic, investigating potential patterns is critical. As the University of Essex handbook “Reporting Killings as Human Rights Violations” states: “Patterns may be found in the agency involved (e.g. a certain branch of the security forces, or personnel from one particular police station), the type of person being targeted (e.g. children, certain ethnic groups), the circumstances in which killings take place (e.g. masked men take the victim from his or her house in the middle of the night, drive away in an unmarked van, and the body is found abandoned some miles away a few days later) or even the method of killing. You should watch for such patterns and develop a system of keeping effective and clear records to illustrate them. You could establish a database and/or a network with other NGOs who are dealing with similar cases. It is likely that pooling such information will strengthen your case.”
Genocide and crimes against humanity are by their very nature crimes that require manpower. The larger the forces involved, the greater the likelihood of there being potential sources outside of the military regime who may be useful witnesses: people like truck drivers, doctors, cooks, cleaning crew, etc. It also means there is a larger pool of institutions which might have documents needed to prove certain abuses, such as state, district or regional agencies, government ministries, police, courts, etc. Freedom of information acts can be used systematically and relentlessly to gather as much hard evidence as possible.
Trials for genocide and crimes against humanity are slow. It takes time for the cases to wind through the courts, which means they can last for years: the average length of trial in front of the Bosnian state court is several years. Even now, decades after Srebrenica, there are still several ongoing cases related to the genocide.
I have seen Todorović and heard his testimony many times. In the end, he received a short sentence — just six years — but went on to become a key prosecution witness in at least a dozen cases, with his insider testimony proving the basis for multiple convictions.
Case Studies
There are different types of investigations into genocide and crimes against humanity. Some happen within days of an atrocity and their value is in revealing crimes soon after they happen, while others are published years after crimes take place and reveal the names of suspected — but unprosecuted — perpetrators. Some use open source methods and others are based on traditional interviews and from gathering relevant documents.
Srebrenica Genocide
By analyzing dozens of verdicts for the Srebrenica genocide and documents, military records, and testimonies, the Balkan Investigative Reporting Network in Bosnia and Herzegovina (BIRN BiH, where I work) identified three former Bosnian Serb military police commanders who were mentioned by witnesses and in documents as being involved in capturing Bosnian Muslims from Srebrenica and escorting them to mass execution sites — but who had never been charged. The investigation shows what role military police units had in the massacre and how commanders ordered subordinates to detain and transfer Muslim civilians to mass killing sites. Along with the piece, BIRN BiH published the evidence gathered from court records. In 2022, the investigative series won second place at the Fetisov International Awards in the Outstanding Contribution to Peace category. But more importantly, two years later, one of the military commanders alleged to have been involved was charged with genocide.
Russian Cruise Missile Strikes on Ukraine
Bellingcat is renowned for using open source research techniques to publish in-depth investigations about conflict areas. In 2022 it published a number of investigations debunking some of the Russian narratives related to Ukraine and naming people believed to be responsible for mass atrocities. One of the most important investigations looks at Russia’s cruise missile strikes on Ukraine. According to these investigations, the group believed to be responsible is part of the Russian Armed Forces’ “Main Computation Centre of the General Staff” which works from the Ministry of Defense headquarters in Moscow and the Admiralty headquarters in St. Petersburg. Bellingcat used phone metadata to prove that contacts between these individuals and their superiors spiked shortly before many of the high-precision Russian cruise missile strikes that have killed hundreds and deprived millions in Ukraine of access to electricity and heating. This type of investigation can show the systematic nature of the crimes being committed, which in turn can help to reveal patterns of crimes that may constitute crimes against humanity or genocide.
Uyghur Detention Camps in China
In the summer of 2022, the United Nations Office of the High Commissioner for Human Rights issued an in-depth report citing that “the extent of arbitrary and discriminatory detention of members of Uyghur and Muslim groups” in the Chinese region of Xinjiang “may constitute international crimes, in particular crimes against humanity.” These findings come after years of journalistic investigation revealing the horrors of Chinese government detention sites used to allegedly combat “violent extremism and separatism.” In 2020, Megha Rajagopalan, Alison Killing, and Christo Buschek were named as a finalist for the Pulitzer Prize for their series for BuzzFeed News revealing the sprawling system of more than 260 detention sites built since 2017. The investigation was based on OSINT techniques, with Killing using her skills as an architect and geospatial analyst, along with testimonies of survivors collected by her colleagues, to showcase the deliberate, systematic nature of Chinese targeting of Muslims and their incarceration.
