Earlier this week, Russian forces fired artillery shells at a maternity unit and a children’s hospital in Mariupol, Ukraine. Previously, multiple sources indicated that more healthcare facilities had been bombed. International humanitarian law, as codified in the Geneva Conventions and Additional Protocols, focuses on the protection of “civilian objects,” which include schools, hospitals, residences, and places of worship, as well as sites where non-combatants seek to go about their everyday lives. If Russia is proven to be targeting civilian areas without a military purpose, it will be convicted of committing war crimes.
Two days ago, the World Health Organisation (WHO) reported 18 attacks on hospitals in Ukraine to date, which if proven, would be one of the instances that could constitute a war crime.
ICC war crimes investigation in Ukraine
Thirty-eight governments have now taken a significant step toward ensuring documentation of potential war crimes by asking the International Criminal Court (ICC) prosecutor to open a war crimes investigation in Ukraine, Human Rights Watch reported yesterday.
On 28 February 2022, the ICC Prosecutor announced he would seek authorisation to open an investigation into the Situation in Ukraine, on the basis of the Office’s earlier conclusions arising from its preliminary examination, and encompassing any new alleged crimes falling within the jurisdiction of the Court.
Former US Ambassador-At-Large for War Crimes Issues Stephen Rapp said on the BBC Context programme yesterday that this is “The strongest case [for war crimes] we have seen since World War II”.
However, as an investigative article in Time Magazine shows, building a war crime case against Putin is harder than you think. “For indictments to stick in court, hard evidence will be needed— and not the kind of photo and video evidence that you might expect. The most important place to look is actually in soldiers’ pockets, says Bill Wiley, founder and executive director of the Commission for International Justice and Accountability.”
Former War Crimes Prosecutor Stephen Rapp said on the BBC: “You’d be gathering the evidence from the air, obviously, and then from the Ukrainians for their information. It would be that kind of information, satellite imagery for instance, that can show the patterns of the bombardments, and evidence and photos taken on the ground by Ukrainian civil society and Ukrainian authorities themselves.”
The role of satellites in previous war crime investigations
As a press release by Amnesty International in 2014 shows, this is not the first time that satellite images are used in war crime investigations against Russia.
In their press release of 7 September 2014 they say: “Amnesty International today accused Russia of fuelling separatist crimes, as it revealed satellite images indicating a build-up of Russian armour and artillery in eastern Ukraine. Amnesty also said that Ukrainian militia and separatist forces are responsible for war crimes.”
According to a blog post in the International Justice Monitor in 2015 “Satellite imagery was first used in international criminal proceedings during the Srebrenica trials at the International Criminal Tribunal for the former Yugoslavia. Yet, the full value that this unique form of evidence may possess is still underused comparative to its potential. Practical matters of collecting and analysing satellite based evidence, as well as the still nascent legal precedents related to admissibility and probative value, are major barriers to its more frequent and effective use in trials.”
A Fordham International Law Journal analysis of the use of digital evidence in war crimes prosecutions added in 2017 that after the Srebrenica investigations: “Satellite imagery went from an instrument of military strategists and private corporations to an important resource for war crimes investigators and prosecutors.”
After the war in Bosnia, satellite imagery has been used in practically every ICC prosecution for war crimes since, including cases in Sudan, Libya, Afghanistan and Syria.
War crimes evidence from space
Going back to Ukraine, in a recent report by BBC News, satellite imagery was used as evidence for the earlier mentioned attack on a children’s hospital in the city of Mariupol, clearly showing the location of a bomb crater in between the hospital buildings. It also shows before and after images of an artillery attack in a residential neighbourhood.
In the same article, the authors write: “Images from satellite technology company Maxar have revealed damage to residential areas to the south and east of the city, now virtually cut off from the outside world.”
It is clear that satellite imagery has become an important element in bringing the effects of war to media consumers. It can only be assumed that this same imagery will be made available to military strategists and war crime investigators alike. Satellite companies like Maxar and Planet are among the key (public) sources of this evidence.
In fact, the public image gallery on the Planet website now mostly contains detailed satellite photos of war-struck areas in Ukraine, in addition to Russian navy and other military troop displacements.
Using satellite images in court
While the investigations into war crimes in the ongoing war in Ukraine have only just begun, it is obvious that satellite imagery will play a role like we have not seen before. In its concluding chapter, the Fordham International Law Journal article states:
“Between the satellites monitoring of a situation from space, drones observing the situation from above, and persons recording the situation on the ground, there is enough imagery and footage to portray modern conflict situations from all angles and at all times. If judges need to assess whether certain actions taken by investigators or officers in the military were reasonable based on the information available to them, they can review the drone or cell phone footage rather than relying on testimony.”
Featured image on top, source: Eloise Bollack, Coalition for the ICC