VI. Ensuring Accountability for War Crimes, Human Rights Violations and Crimes against Humanity

a. Fact-Finding Mechanisms

Alleged violations of international humanitarian law and international human rights law, as well as allegations of war crimes and crimes against humanity committed in the current conflict in Ukraine, have to be properly investigated. The obligation to do so stems from treaties, such as the 1949 Geneva Conventions and the 1977 Additional Protocol I and relevant IHRL treaties, as well as from customary rules. The investigation for the purposes of criminal prosecution is carried out by prosecutor offices, courts and law enforcement agents at the national or international level and will be dealt with in the next two subsections. Yet, in many recent conflicts, such criminal law investigation has been often complemented by the activities of fact-finding or inquiry mechanisms which do not seek to provide detailed evidence about individual crimes and to identify their perpetrators but, rather, concentrate on the establishment of facts in order to contribute to the peaceful settlement of international disputes.⁶⁴¹ The main task of fact-finding or inquiry mechanisms is therefore to verify the authenticity of allegations that certain incidents have occurred. The mechanisms may also make a prima facie legal assessment of the incidents finding out whether there are reasonable grounds to assume that these incidents might amount to violations of international standards, usually IHL and IHRL.

In the context of the conflict in Ukraine, several fact-finding or inquiry mechanisms have been used. One of them is the Moscow Mechanism of the OSCE, under which the current report has been produced. As noted in Section II above, the Moscow Mechanism, established in 1991 and activated ten times since then, makes it possible for the OSCE Participating States to invite a mission of up to three experts to produce, preferably within three weeks, to consider a particular question or problem relating to the human dimension, gather information about such question or problem from any available sources and, if possible, use its good offices and mediation service to promote dialogue and cooperation among the OSCE Participating States. As also already noted in Section II, the first mission tasked to establish facts about violations of international humanitarian and human rights law, war crimes and crimes against humanity committed in Ukraine since 24 February 2022, was set up on 15 March and produced its report on 5 April 2022 (the report was presented to the OSCE Permanent Council on 12 April 2022 and became public one day later).⁶⁴² The current mission, endowed with a virtually identical mandate, was set up on 7 June 2022 and submitted its report on 28 June 2022.

In parallel to the OSCE mission of experts, a similar mission was established, on 4 March 2022, within the UN, by the UN Human Rights Council (HRC). This Independent International Commission of Inquiry on Ukraine (IICIU) to ensure accountability for human rights violations and abuses of IHL associated with Russia’s aggression against Ukraine and to end impunity.⁶⁴³ Its wide mandate includes investigations of all alleged violations and abuses of human rights and violations of IHL, and related crimes in the context of the aggression against Ukraine by the Russian Federation; identification, where possible, of individuals and entities responsible for such abuses and violations; and to make recommendations, in particular on accountability measures, including issues of individual criminal responsibility and access to justice for victims. The mandate of the IICIU is thus broader than the mandate of the two OSCE missions of experts which was in fact limited to the first of the three tasks. The IICIU is composed of three experts, Mr Erik Mose (Norway), Ms Jasminka Dzumhur (Bosnia and Herzegovina) and Mr Pablo de Greiff (Colombia). It was set up for the initial duration of one year and should provide an oral update on its work to the UN HRC in September-October 2022 and submit a comprehensive written report in February-April 2023.

On 12 May 2022, the UN Human Rights Council requested the IICIU to address the events having occurred in the areas of Kyiv, Chernihiv, Kharkiv and Sumy regions in late February and in March 2022, when these regions found themselves under the temporary occupation of the Russian Federation.⁶⁴⁴ The findings on these events should be presented during the oral update and included in the report. On 7-16 June 2022, the members of the IICIU travelled to Ukraine to meet with various interlocutors, including victims and witnesses of alleged violations of IHL and IHRL. During their stay in Ukraine, they visited Kyiv, Lviv, Irpin, Bucha, Kharkiv, Sumy, Trostyanets and Ohktyrka.⁶⁴⁵ The findings from this visit or any other conclusions that the IICIU might reach were not known by 25 June 2022 and the second mission therefore could not rely on them in its report.

The second mission recalls that in addition to the mechanisms established within international organizations, certain treaties applicable in the conflict in Ukraine set up special fact-finding bodies as well. This is the case of the International Humanitarian Fact-Finding Commission (IHFFC), established by Article 90 of the Additional Protocol I to the Geneva Conventions.⁶⁴⁶ The IHFFC is a permanent international body composed of 15 experts which may investigate allegations of grave breaches and serious violations of IHL committed in international armed conflicts. It may do so with respect to States which have accepted its jurisdiction through a general declaration or on an ad hocbasis. So far, over 70 States, including Ukraine, have issued a general declaration. The Russian Federation did so as well but it withdrew the declaration on 23 October 2019. The ad hocacceptance of the IHFFC would however still be an option and the second mission is convinced that the investigation carried out by the IHFFC would helpfully complement the work of the other, above mentioned fact-finding mechanisms.

As noted by the first mission, in addition to the fact-finding or inquiry mechanisms that are already in place and are or could be used with respect to the conflict in Ukraine, there is also an initiative aimed at establishing a permanent independent investigate mechanism (IIM) advanced by some States, such as the Netherlands, and some NGOs, such as the International Commission of Jurists.⁶⁴⁷ Following the example set by the International, Impartial and Independent Mechanism for Syria (IIIM) and the Independent Investigative Mechanism for Myanmar (IIMM), the IIM would be tasked to collect evidence to be used mainly in international or national criminal proceedings. At the time of the submission of this report, the prospects of this initiative remained unclear.⁶⁴⁸

The second mission wishes to add that fact-finding tasks with respect to the conflict in Ukraine, albeit without any formal mandate, have been since the outbreak of the conflict carried out by various Ukrainian and non-Ukrainian non-governmental organizations. These organizations have partly relied on public open sources information but many of them have also collected evidence through satellite pictures and on-site visits or witnesses and have interviewed victims and witnesses. Such organizations include inter aliathe Platform for the Investigation of War Crimes in Ukraine - 5 AM Coalition (bringing together 16 Ukrainian NGOs), the Tribunal for Putin Platform, Bellingcat, Amnesty International, Human Rights Watch and many other organizations. The second mission praises these organizations for their work and for sharing some of the conclusions of this work with the mission and it stresses the importance of constructive cooperation between various entities engaging in similar activities.

B. Responsibility Mechanism

As noted in Section III.C.1-2, any violations of international law, including IHL and IHRL, by the de jureor de factoorgans of the State as well as by private entities whose acts are attributable to the State, give rise to the international responsibility of this State.⁶⁴⁹ Moreover, certain qualified violations of IHL, as well as certain violent acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack give rise to individual criminal responsibility.

1. Responsibility of the State

Responsibility of the Russian Federation for alleged violations of IHL and IHRL and/or for other alleged violations committed during the conflict in Ukraine are at the moment the object of at least two inter-state judicial proceedings. One takes place before the UN International Court of Justice (ICJ), the other before the European Court of Human Rights (ECtHR).

The ICJ, the principal judicial organ of the United Nations,⁶⁵⁰ is competent to consider and decide any legal disputes submitted to it by States. On 26 February 2022, Ukraine filed a complaint against the Russian Federation under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.⁶⁵¹ The application relates to the accusations levelled by the Russian Federation against Ukraine that the latter has committed acts of genocide in the Donetsk and Luhansk regions of Ukraine and the use of these accusations for the legal justification of the “special military operation” against Ukraine started on 24 February 2022. Ukraine requests the ICJ to declare that the accusations are false and that they cannot be used as a legal justification for the Russian use of force against Ukraine. At the time of the submission of this second report, the ICJ still remains seized of the matter. Yet, on 16 March 2022, granting the Ukrainian request for provisional measures, it ordered the Russian Federation “to immediately suspend military operations that commenced on 24 February on the territory of Ukraine” and to “ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations”.⁶⁵² The order has not been implemented so far.

The ECtHR currently has six inter-state cases between Ukraine and the Russian Federation (in one case, the other way round) pending. These cases relate to various events having happened in the relationship between the two countries since 2014, such as the unlawful occupation and annexation of Crimea (2014) or the shooting down of the Malaysia Airlines Flight MH17 (2014). On 28 February 2022, Ukraine submitted a request to the ECtHR to indicate urgent interim measures to the Russian Federation in relation to “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine”. On 1 March 2022, the ECtHR granted this request, indicating to the Russian Federation to “refrain from military action against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops”.⁶⁵³

The interim measures have not been respected and future decisions have even a lower chance to be so, in view of the law adopted by the Russian Federation on 11 June 2022, stipulating that the country "will not implement decisions of the European Court of Human Rights entering into force after 15 March 2022".⁶⁵⁴ The law reacts to the exclusion of the Russian Federation from the Council of Europe, due to which the Russian Federation ceased to be bound by the ECHR on 16 March 2022, though the ECtHR had the competence to consider cases related to events having occurred under the jurisdiction of the Russian Federation until 16 September 2022. To the extent that these cases relate to the violations of IHRL in the current conflict, the findings of the first and second mission could be of relevance for them.

2. Individual Criminal Responsibility

Both the first and the second mission have concluded that there are reasonable grounds to believe that war crimes and crimes against humanity have been committed in the current conflict in Ukraine, mostly, albeit not exclusively, by members of the armed forces of the Russian Federation. Allegations of such crimes have already started to be investigated and/or criminally prosecuted, both at the national level, especially in Ukraine, and at the international level, before the International Criminal Court (ICC). There is also an initiative aimed at setting up a special tribunal for Ukraine.⁶⁵⁵ Since this tribunal, according to the available proposals⁶⁵⁶ should have jurisdiction solely over the crime of aggression, it is not further discussed in this report, because doing so is not within the mandate of the second mission.

At the national level, unsurprisingly, Ukraine has so far been the most active in the investigation and prosecution of international crimes and other offences committed on its territory and, mostly, against its citizens. As already indicated above (see Section V.A.4), by 25 June 2022, the Office of the Prosecutor General of Ukraine registered almost 20,000 criminal cases relating to crimes under international law. 18,805 concern war crimes, 73 the act of aggression, 18 war propaganda and 634 are others.⁶⁵⁷ By the same date, two trials have resulted in a judgment before Ukrainian courts (in Kyiv and Poltava). The investigation into international crimes and other offences committed on the territory of Ukraine has also been conducted and the first charges made, in the Russian Federation, mostly with respect to foreigners having joined the Ukrainian armed forces (Section V.A.4). The problematic nature of the trials carried out by the so-called Donetsk and Luhansk People’s Republics has already been highlighted in this report (Sections V.A. 1 and V.A.4). The second mission wishes to once again repeat that the obligation to investigate into international crimes and hold their perpetrators accountable is not limited to crimes committed by the other party to the conflict. In addition to Ukraine and the Russian Federation, several other countries, which are not party to the current conflict, have opened investigation into crimes committed in the territory of Ukraine. Some cases concern crimes committed by the citizens of such countries, having joined one or the other party to the conflict (foreign fighters,⁶⁵⁸ volunteers having engaged in looting,⁶⁵⁹ etc.). Other relate to international crimes, especially war crimes, committed mostly by members of the Russian armed forces.⁶⁶⁰ Third countries are also involved in the investigation carried out by the Ukrainian law enforcement agencies, for instance by providing forensic experts.⁶⁶¹ Already at the end of March 2022 moreover, a Joint Investigation Team was set up by Poland, Lithuania and Ukraine and under the auspices of the Eurojust. This team should help Ukraine in gathering evidence of crimes committed on its territory.⁶⁶² Within the European Union, the European Arrest warrant could be used as a useful tool to ensure that perpetrators of international crimes do not escape justice by moving to another EU country. The European Arrest Warrant makes it obligatory for EU States to arrest and transfer to another EU State persons suspected of certain serious crimes, including “crimes within the jurisdiction of the International Criminal Court”.⁶⁶³

At the international level, the ICC, the permanent court established by the Rome Statute in 1998, is competent to investigate and prosecute certain international crimes, namely war crimes and crimes against humanity, committed on the territory of Ukraine during the current conflict. The ICC deals with the situation in Ukraine on the basis of a referral made in the early March 2022 by 41 State Parties to the Rome Statute of the ICC.⁶⁶⁴ While neither Ukraine nor the Russian Federation have ratified the Rome Statute, the ICC may act on the basis of this referral thanks to the fact that on 9 April 2014 and 8 September 2015, Ukraine made two declarations Article 12(3) of the Rome Statute, granting the ICC the jurisdiction over any crimes committed on its territory since 21 November 2013. The ICC prosecutor Karim A. Khan opened the investigation on 2 March 2022 and has carried out at least two visits to Ukraine since then. At the moment of the submission of this report, the investigation into the situation in Ukraine is still ongoing and no individual defenders have been yet identified, no arrest warrants issued and no cases opened.

During the visit to Kyiv, the second mission learnt that the Ukrainian criminal legislation was about to be amended to facilitate the cooperation between Ukraine and the ICC.⁶⁶⁵ Such an amendment is to be welcomed, as would be the entry into force of the substantive amendment to the Criminal Code of Ukraine, revising its text to make it fully compatible with the Rome Statute of the ICC. The draft amendment of this type was adopted by the Verkhovna Rada of Ukraine already on 20 May 2021 but so far has failed to be signed by President Zelenskyy.⁶⁶⁶ The second mission notes that bringing the Ukrainian legislation into the full compliance with the Rome Statute of the ICC is desirable and that this move would also facilitate the future ratification of the Rome Statute by Ukraine which should be seen as one of the legal priorities of the country.