III. Methodology

A. Scope of the mandate

The temporal mandate of the mission of experts covers the period between 1 April 2022 and 25 June 2022, when the report was finalized. At the moment of the finalization of the report, the conflict in Ukraine was unfortunately still ongoing. This report therefore could not provide a final overview of all incidents which would have occurred during this conflict. Geographically, the mission focuses on the alleged violations of IHL and IHRL committed in the whole territory of Ukraine, within its internationally recognized borders (including the Autonomous Republic of Crimea, the City of Sevastopol, the Donetsk and Luhansk regions and all the regions which have come under the temporary occupation by the Russian Federation since 24 February 2022). The mission has no limitations concerning the personal scope of its mandate, i.e., it investigated all potential contraventions of international standards regardless of the nationality of the person having committed them and the identity of the actor to which they are attributed.

In line with paragraph 7 of the Moscow Document, the mission of experts had three weeks to produce its report. Such a limited time span, together with the ongoing nature of the conflict and the permanent inflow of new information, did not make it possible for the mission to verify all the allegations of violations of IHL and IHRL received from various sources and to “report on all atrocities committed by the Russian armed forces in Ukraine /emphasis added/, as requested by the inviting State. Similar to the first report, however, this second report identifies the main patterns of behaviour incompatible with international standards and provides concrete examples documenting these patterns. It also indicates which violations of international standards give rise not only to the responsibility of the relevant party to the conflict but also to individual criminal responsibility (for war crimes or crimes against humanity). At the same time, the mission was not in the position, and did not have the mandate, to conduct criminal investigations and to identify specific individuals responsible for such crimes. It is for national and international prosecutorial offices and judicial bodies to assume this task.

B. Methods of Fact-Finding

In the preparation of this report, the mission of experts used several main methods of fact­finding, relying on various sources of information.

First, it built on the data contained in the report on Ukraine produced under the OSCE Moscow Mechanism in April 2022. It also used other written reports, comments and statements produced by international organizations (UN, OSCE, Council of Europe, EU), States, non-governmental organizations, and media. Moreover, after the establishment of the mission, the OSCE renewed the special online channel of communication through which those in possession of relevant information could share, and did indeed share, such information.

Secondly, the mission conducted various interviews, both online and in person. The experts would like to express their gratitude to all the interlocutors who took time to talk to them, share with them relevant information and provide them with evidence. They would particularly like to thank the UN Human Rights Monitoring Mission in Ukraine (HRMMU), for excellent cooperation and information sharing. As in the first mission, valuable information and analysis was provided by the Humanitarian Research Lab at Yale School of Public Health, as well as by various NGOs.

Thirdly, on 20-23 June 2022, two members of the expert mission, Ms Bilkova and Ms Guercio, visited Ukraine. During the visit, they met the representatives of the Ministry of Defence, the Ministry for Reintegration of the Temporarily Occupied Territories of Ukraine, the Office of the Ukrainian Parliament Commissioner for Human Rights, the Mission of the President of Ukraine in the Autonomous Republic of Crimea, the Ministry of Justice, the Office of the Prosecutor General and the Ministry of Foreign Affairs. They also visited the towns of Irpin, Bucha and Hostomel, which were between the end of February and the end of March 2022 for several weeks under the temporary occupation of the armed forces of the Russian Federation and various atrocities were reportedly committed during that period. The experts also met several witnesses who could report about the events in some of the temporarily occupied territories. For security reasons, the names of such persons may not be disclosed. The experts would like to thank the Ukrainian authorities for all the assistance provided for the organization of the visit and in its course.

Through all the different methods of fact-finding, the mission was able to get access to a large amount and variety of evidence and to gain a good oversight of the situation in general and of particular issues under scrutiny. During the preparation of the report, the mission enjoyed administrative and logistic support from the ODIHR. The experts wish to stress that, in line with the rules of the Moscow Mechanism, the OSCE did not in any way interfere with the substantive work of the mission, which operated in a fully independent and impartial way.

The mission regrets to note the lack of cooperation manifested by the Russian Federation. Following the example of the first mission, on the day of its establishment, the mission sent a letter to the Permanent Representation of the Russian Federation to the OSCE, inviting the Russian Federation to collaborate with the mission and to share with it all the relevant information that the Russian Federation might be in possession of and that might help the mission to take the position of the Russian Federation into account in its investigation. Unfortunately, the letter remained unanswered. Despite that, the mission was able to get access to, and rely on, statements and positions of the Russian Federation and it took note of them in the report.

Moreover, the mission faced the obvious challenges linked to the dissemination of propaganda, disinformation and fake news that always accompanies armed conflicts. The mission sought to overcome this challenge by carefully weighting all the pieces of evidence at its disposal and by seeking, to the extent possible, to cross-check any information through various mutually independent sources.

C. Applicable International Standards

The mission of experts was tasked to investigate and report on potential violations of international humanitarian law and international human rights law, war crimes and crimes against humanity, as well as possible contraventions of OSCE commitments. Four main sets of international standards were therefore applied in the legal assessment of the situations and cases documented in this report, namely those of international humanitarian law (IHL), international human rights law (IHRL), international criminal law (ICL) and the OSCE commitments. These sets of legal standards are not mutually separated but, rather, show important overlaps. A single incident, for instance the killing of a detained civilian, may at the same time constitute a violation of all the four sets and it may give rise to the responsibility of the State to which this killing would be attributed, and to the individual criminal responsibility of concrete individuals who carried out or ordered such killing, simultaneously.

1. International Humanitarian law

International humanitarian law (IHL) is a branch of public international law which applies specifically in the context of armed conflicts, and which seeks to limit the humanitarian and other effects of such conflicts. IHL applies both in international and non-international armed conflicts and it addresses its norms to State or non-state parties to the conflict. The conflict under scrutiny in this report constitutes an international armed conflict, generally defined as “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them .¹² In line with this definition, the internal qualification of the situation by the parties to the conflict and the label they attach to it do not have any effect on its qualification under IHL, which relies solely on objective criteria, namely whether “a resort to armed forces between States ¹³ has taken place. In the conflict between the Russian Federation and Ukraine, it undoubtedly has and IHL is thus fully applicable there. IHL does not allow for derogation.

IHL consists of two main branches. The first one is the Geneva Law, which protects victims of war, i.e., those who are not, or no longer, taking part in hostilities and find themselves in the hand of the other party to the conflict (wounded, sick, shipwrecked, prisoners of war, alien civilians in the territory of another party to the conflict, civilians in the occupied territories, etc.). The Geneva Law is regulated by the four Geneva Conventions (1949) and three Protocols Additional to these Conventions (1977, 2005). All the four Geneva Conventions (GC) and Additional Protocol I (AP) are applicable in international armed conflicts. The Russian Federation and Ukraine are both States parties to all these instruments. The most fundamental rules of the Geneva Law are considered part of customary international law.¹⁴

The second branch of IHL is the Hague Law, which restricts means and methods of warfare, i.e., it indicates which military tactics and which weapons may be used by the parties to the conflict on the battlefield. The Hague Law is regulated by the Hague Conventions (1899, 1907) and by many other, more specific treaties, such as the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflictand its two Protocols (1954, 1999), the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction(1972), the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects(1980, CCW) and its five Protocols (1980, 1995, 2003), the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction(1993), the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti­Personnel Mines and on their Destruction(1997), the Convention on Cluster Munitions(2008) and the Treaty on the Prohibition of Nuclear Weapons(2017). The Russian Federation and Ukraine are State parties to some of these treaties.¹⁵ Again, some rules of the Hague Law are considered part of customary international law.

All parties to the conflict have the obligation to respect and ensure respect for IHL by their armed forces and other persons or groups acting in fact on its instructions or under their direction or control.¹⁶ This obligation is in no way linked or conditioned upon reciprocity.¹⁷ Violations of IHL entail responsibility of the party to the conflict to which such violation are attributed.¹⁸ In line with the general rules on the responsibility of States for internationally wrongful acts,¹⁹ the responsible State is under the obligation to cease the violation, to offer appropriate assurances and guarantees of its non-repetition, if circumstances so require, and to provide reparation for the injury caused by the internationally wrongful act.²⁰

2. International Human Rights Law

International human rights law (IHRL) encompasses a set of rules through which States have committed themselves to respect, protect and fulfil human rights of all individuals on their territory or under their jurisdiction. The main sources of IHRL are universal and regional treaties, though the most fundamental rules of IHRL make part of customary international law. At the universal level, these are the International Covenant on Civil and Political Rights(ICCPR), the International Covenant on Economic, Social and Cultural Rights(ICESCR) and seven treaties focusing on a particular human rights violation or on the protection of certain groups of vulnerable persons. At the regional level, both Ukraine and the Russian Federation were, at the outburst of the conflict, members of the Council of Europe. On 16 March 2022, however, the membership of the Russian Federation in the organization was discontinued by decision of the Committee of Ministers.²¹ In 1997 and 1998, respectively, Ukraine and the Russian Federation ratified the European Convention on Human Rights (ECHR). In consequence of its exclusion from the Council of Europe, the Russian Federation “shall cease to be a High Contracting Party to the ECHR on 16 September 2022 .²² The European Court of Human Rights (ECtHR) remains competent to deal with applications directed against Russia relating to alleged violations of the ECHR that occur before 16 September 2022 (Article 58(2) of the ECHR).

On 11 June 2022, the Russian Federation adopted a law stipulating that the country ‘“will not implement decisions of the European Court of Human Rights entering into force after 15 March 2022 .²³ In 2006 and 2009 respectively, Ukraine and the Russian Federation ratified the Revised European Social Charter(RESC). Again, in consequence of its exclusion from the Council of Europe, the Russian Federation will cease to be State party to the RESCH by 16 September 2022.²⁴ Also at the regional level, the Russian Federation is member of the Commonwealth of Independent States and State party to the CIS Convention on Human Rights and Fundamental Freedoms(1995, CHRFF).

As was explained in the first report, IHRL continues to apply in times of armed conflict. In such times, however, many human rights guarantees may be suspended by means of a derogation (Article 4 of the ICCPR, Article 15 of the ECHR). The Russian Federation has not adopted any derogation in the context of the current conflict. Ukraine, conversely, has extensively derogated from its obligations under the ICCPR and the ECHR. The recent derogations (2022) have been made in connection to the Russian attack on Ukraine and the introduction of a state of emergency and of martial law on the entire territory of Ukraine.²⁵

The mission recalls that States have the obligation to respect and ensure the human rights of all individuals within their jurisdiction and that, as established under the case-law of international human rights bodies, jurisdiction is not limited to the territory of the State²⁶ but extends to the territories under the effective (de facto) control of the State, exercised directly or through non­state entities,²⁷ and to individuals under the specific control of the State (typically individuals in detention).²⁸ The mission shares the view expressed in the first report that some parts of the Ukrainian territory are, or were for a certain period, under the effective control of the Russian Federation (Crimea, Sevastopol, parts of Donetsk, Luhansk, and Kherson regions).

The mission also recalls that in times of armed conflict, IHRL applies in parallel to IHL. In this situation, as declared by the International Court of Justice (ICJ), “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law .³⁰ It is largely accepted that when the last scenario materializes, the standards of IHRL have to be interpreted in light of IHL, which in most instances constitutes the applicable lex specialis.³¹ This also explain why the same incident can simultaneously violate IHL and IHRL.

Violations of IHRL have the same legal consequences as violations of IHRL, i.e., they give rise to the obligation to cease the violation, to offer appropriate assurances and guarantees of its non-repetition, if circumstances so require, and to provide reparation for the injury caused by the internationally wrongful act. Specific human rights treaties regulate these legal consequences in more detail, in view of the right of individual victims to challenge the violations before national and international (quasi)judicial bodies autonomously.

3. International Criminal Law

International criminal law (ICL) is a branch of public international law aimed at making sure that individuals responsible for violent acts are held criminally responsible. The international community has agreed on a list of four crimes under international law, namely the crime of aggression, the crime of genocide, crimes against humanity, and war crimes. The mandate of the mission refers specifically to crimes against humanity and war crimes.

The definitions of crimes against humanity and war crimes are contained in the Rome Statute of the International Criminal Court (ICC). Neither the Russian Federation, nor Ukraine is State party to the Rome Statute. Yet, on 9 April 2014 and 8 September 2015, respectively, Ukraine, by means of two declarations made under Article 12(3) of the Rome Statute, accepted the jurisdiction of the ICC with respect to crimes against humanity and war crimes, committed on its territory from 21 November 2013 onwards.³²

_Crimes against humanity_ are violent acts, such as murder, extermination, rape, deportation or forcible transfer, torture or enforced disappearance “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack ³³. All States have, under customary international law, the obligation to prevent, prosecute and punish crimes against humanity.³⁵

_War crimes_ amount to violations of the most fundamental rules of IHL which are applicable both to parties to the conflict and to individuals. War crimes consist either in grave breaches of the Geneva Law (wilful killing, torture, etc.); or in other serious violations of the laws and customs of war (intentionally directing attacks against the civilian population or civilian objections, etc.). The Geneva Conventions and API explicitly impose on States the obligation to “enact any legislation necessary to provide effective penal sanctions ³⁸ and to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and /.../ bring such persons, regardless of their nationality, before /their/own courts .³⁹ Both Ukraine and the Russian Federation have introduced certain war crimes into their criminal codes.⁴¹

It is important to highlight that crimes against humanity and war crimes are not mutually disjunctive categories and a single act can therefore meet the qualifications of both of them.

4. OSCE Commitments

Within the CSCE and OSCE, under the human dimension, numerous commitments have been adopted since the 1970s that relate to, and further develop, legal standards contained in IHL, IHRL and ICL.⁴² The Russian Federation and Ukraine both committed themselves to these standards.

With respect to IHL, the Participating States have undertaken “in all circumstances respect and ensure respect for international humanitarian law including the protection of the civilian population and have recalled “that those who violate international humanitarian law are held personally accountable (Helsinki, 1992, paras