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Moscow Mechanism Report (2022)

Report on Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine

Document: ODIHR.GAL/36/22/Corr.1

Date: 14 July 2022 — Warsaw

Original: English

Reference: Invoked under paragraph 8 of the 1991 Moscow Document

VII. General Conclusions

The second mission has largely confirmed the conclusions reached by the first mission. It has discovered clear patterns of serious violations of IHL attributable mostly to Russian armed forces in many areas which its investigations referred to. A significant number of civilians have been killed or injured, and civilian objects - like civilian houses, hospitals, cultural property, schools, multi-story residential buildings, administrative buildings, penitentiary institutions, water stations and electricity systems - have been damaged or destroyed in numerous towns and villages. The magnitude and frequency of the indiscriminate attacks carried out against civilians and civilian objects, including in sites where no military facility was identified, is credible evidence that hostilities were conducted by Russian armed forces disregarding their fundamental obligation to comply with the basic principles of distinction, proportionality and precaution that constitute the fundamental basis of IHL.

The signs of torture and ill-treatment on the corpses of killed civilians also show disregard of the principle of humanity that should guide the application of IHL in military operations. The events concerning the towns of Bucha and Irpin, that were visited by the mission, are two emblematic examples of these grave breaches of IHL under the Geneva Conventions and their Additional Protocols, which constitute war crimes. There is information that all the violations that the mission was able to ascertain are or will be under investigation and the responsible persons, if identified and arrested, under prosecution by the relevant national or international judicial authorities.

The second mission has concluded that international human rights law (IHRL) has been extensively violated in the conflict in Ukraine. Some of the most serious violations include targeted killing of civilians, including journalists, human rights defenders, or local mayors; unlawful detentions, abductions and enforced disappearances of such persons; large-scale deportations of Ukrainian civilians to Russia; various forms of mistreatment, including torture, inflicted on detained civilians and prisoners of war; the failure to respect fair trial guarantees; and the imposition of the death penalty. Most, albeit not all, violations have been committed in 665666 the territories under the effective control of the Russian Federation, including the territories of the so-called Donetsk and Luhansk People’s Republics, and are largely attributable to the Russian Federation. The mission has identified two new alarming phenomena which were not included or paid sufficient attention in the first report, namely the establishment and use of so- called filtration centres and the tendency by the Russian Federation to bypass its international obligations by handing detained persons over to the two so-called People’s Republics and letting them engage in problematic practices, including the imposition of the death penalty.

The second mission has also confirmed that the current conflict in Ukraine has had a very negative impact on the enjoyment of economic, social, and cultural rights, such as the right to education the right to health, the right to social security, the right to food and water and the right to a healthy environment. This impact is not limited to instances when these rights have been directly violated but results from the overall state of destruction and disruption of the provision of vital services (education, healthcare, food production, etc.) in the country as well. The mission would moreover like to stress that particular attention have to be paid to individuals belonging to vulnerable groups, such as women, children, older persons, or persons with disabilities. All violations of IHRL entail the responsibility of the relevant State. The most serious among them, moreover, may give rise to individual criminal responsibility for war crimes and crimes against humanity.

The second mission shares the doubts expressed by the first mission as to whether the Russian attack on Ukraine per se could qualify as a “widespread or systematic attack directed against any civilian population”, which provides the context for crimes against humanity. Yet, it fully upholds the conclusion that some patterns of violent acts violating IHRL, which have been repeatedly documented during the conflict, such as targeted killing, enforced disappearance or abductions of civilians, meet this qualification and that any single violent act of this type, committed as part of such an attack and with the knowledge of it, constitutes a crime against humanity. The second mission also notes that such patterns have become more evident in the period under scrutiny in this report.

The findings of this report are, similar as in the first report, preliminary. This is due to the limited time for the preparation of this report, the ongoing nature of the armed conflict in Ukraine, the complexity of the situation in Ukraine, the large scale of alleged violations, abuses and crimes committed there as well as difficulties inherent in the collection of evidence in such a situation. The second mission has nonetheless been able to identify certain alarming patterns of behaviour that need to be further investigated and considered by competent national or international bodies. The second mission is convinced that the Independent International Commission of Inquiry on Ukraine (IICIU), established by the UN Human Rights Council, will be able, within its one-year mandate, to provide an in-depth analysis of the situation in Ukraine. The International Humanitarian Fact-Finding Commission (IHFFC) could helpfully complement the work of the UN and OSCE bodies, if Ukraine and the Russian Federation agreed to use its services. The issues of State responsibility have to be considered by the ICJ, the ECtHR or another judicial body. The issues of individual criminal responsibility have to be, and already are, considered by national courts in Ukraine, the Russian Federation or third countries, or by the ICC, always in full respect of the guarantees of a fair trial.

Comments by Ukraine to the Report of the Mission of Experts, established to address the violations of international humanitarian and human rights law, war crimes and crimes against humanity committed during Russia’s war of aggression against Ukraine

  1. Taking into account the provisions of Section VI.B.2 of the Report [pages 112-114], it is important to note that on 25 April 2022 the Office of the Prosecutor of the International Criminal Court became a participant of the Joint Investigation Team (hereinafter - JIT) for the investigation of crimes committed during the armed aggression against Ukraine, joining Ukraine, Poland and Lithuania. Estonia, Latvia and Slovakia became members of the JIT on 30 May 2022. At the same time, in order to set up a legal framework for cooperation with the International Criminal Court and to bring it in line with the provisions of the Rome Statute, the Criminal Procedure Code of Ukraine was amended by the Law of Ukraine of 3 May 2022 N"2236-X "On Amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine on cooperation with the International Criminal Court" by supplementing it with new section IX2 "Specific aspects of cooperation with the International Criminal Court".
  2. It is important to emphasize that all foreign citizens and stateless persons, which take part in the international armed conflict on Ukraine’s side as members of the Armed Forces of Ukraine are lawful combatants and are protected by the international humanitarian law, including the immunity from being brought to justice for the mere fact of participation in the armed conflict. The issue of the military service in the Armed Forces of Ukraine by foreign citizens and stateless persons is regulated by the Law of Ukraine “On Military Duty and Military Service”. Ukraine ratified the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries. Article 447 of the Criminal Code of Ukraine provides for criminal liability for mercenarism.
  3. “This fact also complicates the procedure to specify the exact number of Ukrainians who died in Crimea. During a meeting held in Kyiv with the Mission of the President of Ukraine in the Autonomous Republic of Crimea, the mission was informed that it is difficult to confirm if the mid-May number of 48 dead Ukrainians is correct. Some other deceased may be Ukrainian citizens on whom Russian citizenship was unlawfully imposed.” [page 25 of the Report]. Comment by Ukraine: based on the findings of the Mission of the President of Ukraine in the Autonomous Republic of Crimea as of July 2022, out of 108 Crimean residents confirmed to have died as a result of taking part in the hostilities in mainland Ukraine as part of the Russian armed forces, 57 were reported to be Ukrainian citizens. What complicates the establishment of exact figures is that some of the deceased may be Ukrainian citizens on whom Russian citizenship was unlawfully imposed, which Ukraine doesn’t recognize, while others may be Russians that have been unlawfully residing in the occupied Crimea and Sevastopol.
  4. “During its visit to Ukraine, the mission could receive information from the Mission of the President of Ukraine in the Autonomous Republic of Crimea about illegal conscription in Crimea's temporary occupied territories (TOTs).” [page 32 of the Report]. Comment by Ukraine: according to the announcement of the occupying administration in Crimea dated July 4, 2022, it issued “The order on commission for mobilization of citizens in the republic of Crimea”. This “order” also provides for establishment of the relevant municipal commissions of lower level. This step of the occupying administration testifies that the Russian Federation might prepare to carry out the illegal mobilization in the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol. In the meantime, conscription campaigns are conducted regularly twice a year (in spring and autumn) since 2015. Conscripts are men between 18 and 27. As of now, the occupiers have unlawfully conducted 14 conscription campaigns, forcing about 34,000 Crimeans to serve in the Russian armed forces. On April 1, 2022, the occupying administration launched the 15th unlawful conscription campaign. Russia planned to draft 134,500 conscripts in total, including in the TOT of Crimea and Sevastopol.
  5. “Since its invasion of Ukraine on 24 February 2022, Russia has been accused of using vehicle-borne thermobaric rocket launchers.” [page 51 of the Report]. Comment by Ukraine: it is important to mention that Russian armed forces use multiple rocket launchers capable of using thermobaric warheads «TOS-1» (so- called «Buratino») and «TOS-1a» (so-called «Solntsepyok») when attacking Ukrainian cities. This directly endangers the lives of civilians, given the affected area and the level of indiscriminative impact of such weapons. For example, the area that can be totally burned up by «Solntsepyok» is up to 40,000 square meters, and it is carried out with completely unguided missiles.
  6. “According to media reports, Ukrainian forces used cluster munitions in Husarivka, Kharkiv oblast, on 6 or 7 March 2022, when Russia occupied the village.” [page 50 of the Report]. Comment by Ukraine: since the beginning of the full-scale invasion of the Russian Federation on the territory of Ukraine, no criminal proceedings have been registered on the facts of use by the Armed Forces of Ukraine of cluster munitions, “Tochka-U” missile systems or other prohibited types of weapons.
  7. “The incident having occurred in the village of Vilkhivka in the Kharkiv region on 27 March 2022...” [page 69 of the Report]. Comment by Ukraine: two criminal proceedings based on the facts of possible mistreatment of prisoners of war have been initiated since February 24, 2022. One of them is based on the fact of possible mistreatment of prisoners of war by unidentified persons in military uniform on March 27, 2022, in the Kharkiv region; and another one is based on the fact of possible mistreatment of prisoners of war by representatives of the volunteer battalion near the village of Dmytrivka, Buchansky district, Kyiv region. All necessary measures are being taken to ensure a comprehensive and independent investigation of the circumstances of these criminal offenses, the pre-trial investigation is ongoing.
  8. “The trials have, in the majority, produced positive reactions. Yet, words of caution can also be heard, especially within the legal academia. The respect of the fair trial guarantees during the trials gives rise to doubts.” [page 75 of the Report]. Comment by Ukraine: regarding the right to a fair trial and due process on V.Shishimarin, A.Bobikin and A.Ivanov we would like to inform the following. The Criminal Code of Ukraine establishes that appearing with a confession, sincere repentance or active assistance in the detection of a criminal offense are mitigating circumstances. Considering these provisions of the Ukrainian legislation, A.Bobikin and A.Ivanov by testifying on investigated circumstances contributed to the investigation of the crime they were accused of. As a result, the court took into the account such behaviour of the defendants and defined it as a circumstance that mitigated their punishment. As for V.Shishimarin, at the stage of pre-trial investigation he pleaded guilty to the alleged crime only when most of the investigative actions, indicating him as a criminal, had been conducted. His defence attorney (lawyer V.Ovsyannikov) was present at all court hearings, and investigative actions on the suspect were also conducted with his immediate participation. During the pre-trial investigation and the trial, facts that reliably indicate that V.Shishimarin could not be considered as a military man acting at the commander’s order, were established. The punishment imposed on the convicted person is within the sanction of the article, and corresponds to the severity of the crime, taking into account two aggravating circumstances established by the court. The criminal law provides for the possibility, at the convicted person’s request, to change the sentence to a fixed-term one, defining specific term of serving the sentence. There were no complaints either from V.Shishimarin, or his lawyer, about inadequate detention conditions, torture or inhumane treatment. In accordance with the Ukrainian legislation, persons in custody in the courtroom stay behind an appropriate barrier. Such a barrier, in particular a glass cabin, provide the necessary isolation of defendants, guaranteed protection of participants of the court hearings from defendants’ unlawful actions, as well as protection of the defendants themselves. The fact that defendants stay behind the glass barrier is stipulated by the Ukrainian legislation and in no way caused any bias in the court. The presumption of innocence for each defendant was unconditionally respected, and their right to defense and a fair trial was ensured (for example, all convicted persons’ sentences were appealed by their defence attorneys). In view of the abovementioned, assumptions of violation of the presumption of innocence are insufficiently substantiated in the Report.

08 July 2022

  1. ↑ Interview with representatives of the Ministry of Justice of Ukraine, on file with the authors of the report. See 3aK0H VkpaiHU No 2236 Hpo oiieceiiiia 3MiH do KpiiMiiia:ibiio?o npouecva:ibiioro KodeKcy VkpaiHU ma iiiuiux 3aKOHodasHux aKmis VKpaim ipodo cnicpooiniiiiiuniaa 3 MiaiciiapoPiuiM KpitMiiiaxbiutM cydoM, 3 ipaBHa 2022.
  2. ↑ npoeKm 3aKonyHpo oiieceiiiia 3MiH do dexKux 3aKonodaBHux aKmis YKpaiHu ipodo iMnneMeHmayii nopM Mi./iciiapooiioao KpitMiitaxbitoao ma ay\taiiimapiioao npasa, 20 Tpanna 2021.
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