Ukraine Symposium – Results of a First Enquiry into Violations of International Humanitarian Law in Ukraine

On 3 March 2022 the Moscow Mechanism of the human dimension of the Organization for Security and Co-operation in Europe (OSCE) was invoked by Ukraine supported by 45 participating States. This mechanism mandated a mission of experts, undertaken by Professor Wolfgang Benedek, Professor Veronika Bílková, and the undersigned, to enquire into violations of international human rights law (IHRL) and international humanitarian law (IHL), as well as to establish facts and circumstances of possible cases of war crimes and crimes against humanity.

On 13 April 2022, the Mission presented its report to the OSCE Permanent Council (the Report). This post presents my personal account, as of one of the Mission’s experts, on the main findings of the Mission on International Humanitarian Law (IHL).

Preliminary Remarks

Timeframe of the Report

The events covered by the Report took place from 24 February to 1 April 2022. At the time of the completion of the Report, the conflict was still ongoing, and new developments continued to unfold dynamically. For example, Russian troops withdrew from the areas surrounding Kyiv, in particular, from Bucha, Irpin, and Borodyanka. In those towns allegations and images of horrifying scenes of summary executions of large numbers of civilians, as well as allegations of widespread sexual violence, were uncovered. The Report, however, does not address the possible IHL violations that occurred in these areas since the evidence was uncovered after the Report’s formal completion.

Practical difficulties faced by the Mission

In collecting the information for and drafting the Report, the Mission faced several practical difficulties and obstacles. First of all, the time allotted to preparing the Report was limited to three weeks, during which time active hostilities were occurring throughout the whole territory of Ukraine and new reports of violations were published around the clock.

Second, the Mission could not travel to Ukrainian territory since the OSCE advised the experts not to visit Ukraine. Safe access to the places of potential violations could not be provided, and as the OSCE no longer had an expatriate field presence, it could not arrange meetings in Ukraine. A “field visit” would therefore have largely been symbolic.

Third, the Mission wished to receive first-hand accounts of both parties’ positions. However, the Russian Federation informed the Mission that it considered the Moscow Mechanism largely outdated and redundant and declined to nominate a liaison person. This made it impossible for the Mission to take account of the Russian position, except as stated by officials in open source publications. Ukraine’s ability to fully cooperate was also limited because of the ongoing hostilities on its territory. I particularly regretted not having any contact with the Ukrainian military, which would have been crucial to evaluating certain violations of IHL on the conduct of hostilities.

Finally, the Mission was confronted to a large amount of disinformation and propaganda disseminated through various channels in relation to the conflict. The Mission therefore made great effort to gather and compare information from a variety of available sources, and carefully evaluated the quality of sources.

Distinction between jus ad bellum and jus in bello

To correctly understand current public discussions on IHL in Ukraine and the findings of the Report, a remark is necessary on the constant mixing up of the terms jus ad bellum (the law on when war may be conducted, prohibiting, inter alia, aggression) and jus in bello (the law on how war must be conducted). IHL is part of jus in bello. It has to be kept completely separate and distinct from jus ad bellum.

IHL applies equally to both belligerents. It may be particularly difficult to accept this in Ukraine, where Russia is the aggressor and therefore responsible for all the human suffering in the conflict, whether resulting from violations of IHL or even when directly caused by Ukraine; such suffering would not have occurred if Ukraine had not had to defend itself from the Russian invasion. The principle of equal application nevertheless must be preserved. Ensuring the effectiveness of IHL to protect war victims requires that both sides comply with its rules equally.

Findings of the Mission on IHL Issues

The Mission’s overall conclusion was that during the period under consideration, violations occurred on both the Ukrainian and Russian sides. In many instances, both sides also respected IHL and publicly expressed their commitment to comply with their obligations under IHL.

The violations committed by the Russian Federation, however, are by far larger in scale and nature. Due to the time limitation and means at the disposal of the Mission, the Mission was not able to conduct a detailed assessment of most allegations of IHL violations concerning particular incidents. Nevertheless, the Mission found clear patterns of IHL violations by Russian forces on many of the issues investigated—and some violations committed by Ukraine.

Conduct of hostilities

Under IHL, the assessment of whether the rules regulating the conduct of hostilities were violated is based not on the results, e.g., what was destroyed or who was killed or injured, but on what and who was targeted. Targeting civilians or civilian objects is a violation of IHL and a war crime.

The Mission found evidence that the victims were targeted in only a limited number of instances, including instances when civilians were shot at individually, outside buildings, or summarily executed when in the control of Russian forces. Beyond where violations in specific instances could be found, it is inconceivable that so many civilians would have been killed and injured, and so many civilian objects—including houses, hospitals, cultural property, schools, multi-story residential buildings, administrative buildings, penitentiary institutions, police stations, water stations, and electricity systems—would have been damaged or destroyed if Russia had respected its IHL obligations in terms of distinction, proportionality, and precautions in conducting hostilities in Ukraine. This is particularly the case when destruction and deaths occurred far away from the actual fighting. Even in cases where fighting opposed confronted both parties, such as the conduct of the siege of Mariupol, we found examples of clear violations.

Use of explosive weapons with a wide area effect in urban warfare

Under IHL, even when a weapon is not per se prohibited, its use must comply with the rules on distinction, proportionality, and precautions. The Mission considered the use of explosive weapons with a wide-area effect in the conflict and drew some conclusions. The Mission determined that even if certain targets were, hypothetically, military objectives and combatants, it is highly implausible that the undisputed use of cluster munitions, munitions with a large blast radius—such as large bombs or missiles, unguided missiles, artillery and mortars, multiple launch rocket systems (MLRS), and dumb bombs released from aircrafts—and the alleged use of incendiary weapons, white phosphorus, and thermobaric or vacuum bombs, in densely populated areas, was in each case the only feasible choice for the Russian commander, especially considering the wide choice of weaponry Russia possesses. Therefore, the Mission concluded that Russia did not take all feasible precautionary measures, as it should have under IHL.

The ICRC leads a campaign aimed at a political commitment by States not to use explosive weapons in densely populated areas unless sufficient mitigation measures are taken to limit their wide-area effects and the consequent risk of civilian harm (see here). In 2021, Ireland circulated a “Draft Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences that can arise from the use of Explosive Weapons with Wide Area Effects in Populated Areas.” It remains controversial whether the declaration merely reflects existing law or contains, or should contain, new legal obligations. Many States remained, at least before 24 February 2022, opposed to new legal obligations. I hope that their current reaction to Russian practices in Ukraine evidences a change in their attitude.

The law of occupation

The applicability of IHL of military occupation during the invasion phase to parts of Ukrainian territory over which Russia gained control since 24 February 2022 is controversial. In the Report, the Mission applied a functional concept of occupation to the invasion phase. Under this approach, certain rules of IHL of military occupation gradually started to apply as soon as Russia obtained control over the issues regulated by those rules. Under a sliding scale of obligations that apply according to the degree of control, negative obligations to abstain apply as soon as the conduct they prohibit is materially possible (such as when the person benefitting from the prohibition falls into the hands of the invading forces), while positive obligations to provide and to guarantee would apply only at a later stage when a greater level of control is gained.

Such an approach, in contrast to the traditional “all or nothing” approach, captures the fluid and dynamic realities of modern warfare and the absence of defined frontlines. It allowed the Mission to apply IHL of military occupation to all abuses by Russian forces concerning civilians in Ukraine who were, even if only temporarily, in the power of Russian forces. The Mission concluded that much of the conduct of Russian forces in the parts of Ukraine it occupied both before and after 24 February 2022, including through its proxies—the self-proclaimed “republics” of Donetsk and Luhansk—violated certain rules of IHL of military occupation.

Prisoners of war

Very limited information was available to the Mission with regard to prisoners of war (POWs) held by both parties to the conflict. The Mission was astonished by the small number of POWs acknowledged by both parties and expressed its regrets that these POWs do not yet benefit from the ICRC visits prescribed by Geneva Convention III. Some violations and problems were also identified regarding practices of Ukraine on the treatment of POWs. The Mission was particularly concerned by the fact that captured POWs were originally considered criminals and treated in ways that are incompatible with Geneva Convention III.

Arming the civilian population

The Ukrainian authorities called upon civilians to prepare Molotov cocktails to fight the Russian invaders, without incorporating such persons into the armed forces. Such a call was not appropriate under IHL because it made those persons lose protection against attacks without gaining combatant status. If Russian forces expected that every civilian was ready to receive them with Molotov cocktails, then other civilians and civilian residences would be put at risk of attacks.

A Few Words on Human Rights

The Mission also considered the impact of the current conflict on IHRL. While it was not able to verify all the reported incidents involving alleged violations of IHRL, it found credible evidence suggesting that such violations, including violations of fundamental human rights (right to life, prohibition against torture and other inhuman and degrading treatment and punishment), were committed, mostly in areas under the effective control of Russia.

The Mission also concluded that the impact of the conflict on the enjoyment of human rights has gone beyond the direct violation of these rights. By causing a high level of destruction and by interfering with the provision of vital services (education, healthcare, etc.), the conflict has made it very difficult for Ukraine to effectively respect, protect, and fulfil the human rights of its inhabitants. Finally, the Mission discovered that while the conflict has affected the population of Ukraine as a whole, it has had a particularly negative effect on individuals belonging to vulnerable groups, such as women, children, older persons, and persons with disabilities.

A Few Words on War Crimes and Crimes against Humanity

Legally, violations of IHL are committed by States. In reality, they are committed by human beings. A war crime can only be found if an individual perpetrator can be determined, and only a court can find such a perpetrator guilty of a war crime. Apart from that, certain war crimes may also constitute crimes against humanity if they are committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

The Mission was unable to determine such individual perpetrators or persons fulfilling the necessary conditions for command responsibility. Our Report contains findings on violations of IHL by Russia and Ukraine and simply mentions which violations would constitute war crimes, if the responsible individuals can be identified.

A General Mechanism for Collecting Evidence for Criminal Accountability 

In my opinion, instead of creating specific new mechanisms concerning the international armed conflict in Ukraine, existing mechanisms, such as the International Humanitarian Fact-Finding Commission (IHFFC) and the International Criminal Court (ICC), should be used. On one of the rare lacunas, there have been proposals from two conferences organized by the International Commission of Jurists and the Netherlands to strengthen international accountability mechanisms by extending and transforming existing fact-finding mechanisms. The International, Impartial and Independent Mechanism for Syria (IIIM) and the Independent Investigative Mechanism for Myanmar (IIMM) could be converted into permanent mechanisms without geographical limitations focused on collecting evidence for international and domestic criminal proceedings. Germany wants to promote this proposal in the context of the G7. This avenue deserves serious consideration.

An Unprecedented Commitment to Ensure Respect

All States, including those that are not involved in the armed conflict, must do everything reasonably within their power to prevent and bring to an end IHL violations committed by Russia and Ukraine. The Mission noted an unprecedented willingness of States to take such measures to end Russia’s violations of IHL. I can only hope that such commitment will equally exist in other armed conflicts, where the violation of jus ad bellum is not so blatant, but where violations of IHL as serious as those we witnessed in Ukraine occur.

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Marco Sassòli is professor of international law at the University of Geneva and was one of the three members of the mission of enquiry on violations of IHL and human rights in Ukraine under the Moscow Mechanism of the OSCE.

Photo credit: U.S. Mission to the OSCE