Ukrainian Civilians forced to endure War Crimes by Russian Armed Forces
The 52nd Session of the Human Rights Council
27 February – 4 April 2023
Agenda Item 4 – General Debate on Human Rights Situations that require the Council's attention
Interactive Dialogue with the Independent International Commission of Inquiry on Ukraine
20th-21st March 2022
By Conall Corrigan / GICJ
Executive Summary
On the 20th and 21st of March 2023, the 52nd Regular Session of the Human Rights Council (HRC) considered the report of the Independent International Commission of Inquiry on Ukraine (COI) on the human rights situation in Ukraine resulting from Russian aggression.
Mr Erik Møse, Chairperson of the Commission, noted that the report of the COI raises further concerns about the human rights and humanitarian situation in Ukraine. He highlighted that Russian authorities have committed a range of violations of international human rights law (IHRL) and international humanitarian law (IHL) throughout Ukraine. In the view of the COI, many of these violations amount to war crimes and include unlawful killings, attacks on civilians, torture, rape, and forced transfers and deportations of children. The Commission stressed that the destruction of key infrastructure and rising numbers of civilian casualties have impacted millions of people and have led to deteriorating living conditions and hampered access to food, water, and education. Mr Møse concluded by informing the Council that the COI requires additional investigative and legal expertise as well as operational support to adequately fulfil its mandate.
Throughout the interactive dialogue, most states and NGOs continued to express concern about Ukraine’s ongoing human rights situation and showed support for the work of the COI. Many called for the Council to extend the mandate of the Commission and appealed to the international community to ensure effective criminal accountability for perpetrators of rights abuses.
Geneva International Centre for Justice (GICJ) reiterates its support for the work of the Commission and applauds its efforts to document and analyse the evidence of Russian war crimes within Ukraine. It is vital that the COI is adequately funded and provided with enough resources to carry out its mandate effectively. Moreover, it is essential that the international community, and all investigative teams involved in documenting human rights violations perpetrated in the region, coordinate efforts with the COI to hold all actors accountable for any crimes they may have committed. In addition to judicial measures, we strongly urge UN member states to adopt other dimensions of accountability including reparations to ensure non-recurrence.
Background
On the 24th of February, an urgent debate by the HRC on ‘the situation of human rights in Ukraine stemming from Russian aggression’, as requested by Ukraine, was held on the 3rd and 4th of March. As a result of this meeting, member states adopted resolution 49/1 on the ‘Situation of human rights in Ukraine stemming from the Russian aggression’, which condemned the abuses and violations of IHRL and IHL resulting from the Russian Federation’s actions against Ukraine. The adoption of the resolution included the establishment of a COI, consisting of three human rights experts, to be appointed by the President of the HRC for an initial period of one year. The resolution mandates the COI to identify perpetrators and collect and analyse evidence of violations with a view to securing legal accountability. The resolution was adopted by a vote of 32 in favour, 2 against and 13 abstentions.
Following continued reports of alleged war crimes committed in the Kyiv region of Ukraine, the General Assembly adopted draft resolution A/ES-11/L.4 titled ‘Suspension of the rights of membership of the Russian Federation in the Human Rights Council’, which revoked Russia’s membership of the HRC.
In its first report, published in October 2022, the COI presented its findings about events during late February and March 2022 in the four regions of Kyiv, Chernihiv, Kharkiv, and Sumy, as requested by Human Rights Council resolution S-34/1. During this first phase of its investigations, the Commission has found that war crimes and violations of IHL and IHRL have been committed in Ukraine since 24 February 2022 predominately by Russian armed forces.
Summary of the Report of the Independent International Commission of Inquiry on Ukraine
Mr Møse informed the Council that the most recent report of the COI has covered events in nine regions that have taken place over the course of one year. He noted that the COI has strengthened its analysis of patterns of violations, thematically deepened its investigations on torture, included attacks on energy infrastructure, and continues to offer recommendations on the various avenues of accountability. The COI has visited fifty-six locations over eight trips to Ukraine and interviewed almost six hundred people to form the basis of its report. Although the COI has established contact with the Ukrainian government, Mr Møse lamented the fact that efforts to facilitate conversations with the Russian government proved unsuccessful.
The report published by the COI has found that Russian authorities have committed a wide range of violations of IHL and IHRL in Ukraine, with many amounting to war crimes. The Commission confirmed its previous findings on Russia’s conduct of hostilities after investigating twenty-five attacks with explosive weapons in populated areas of the nine regions under investigation. The report documents considerable civilian harm, attacks against civilian infrastructure and the destruction of cities with the OHCHR confirming that 90% of all casualties are due to such attacks. Since the 10th of October 2022, Russian forces have launched waves of attacks on Ukraine’s energy structures, which the report stipulates were disproportionate and constitute war crimes. Investigations by the COI have also confirmed the widespread use of summary executions in areas that Russian armed forces controlled in 17 localities including Kyiv. Moreover, a pattern of unlawful confinement which affected men, women and children in areas controlled by Russian armed forces was also uncovered by the Commission. The torture and inhuman treatment of mostly men has also been described as widespread, systematic, and prevalent against certain categories of people in particular those suspected of providing any kind of support to the Ukrainian armed forces. In addition to war crimes and violations of human rights, the COI has found that such acts may amount to crimes against humanity and recommends further investigation.
The COI’s report also highlighted the cases of gender and sexual-based violence against women, men, and girls in Ukraine and the Russian Federation. This form of violence affected mainly women during house searches and in detention and the evidence within the report shows that sexual violence constituted torture. The COI has not been able to verify different figures provided by both parties related to the forced transfer and deportation of children. It has concluded that the situation violates IHL and amounts to a war crime. The report states that Russian authorities have violated their obligation to facilitate in every possible way the reunion of families and unjustifiably delayed the repatriation of detainees. Moreover, the report accuses the Russian government of adopting legal and policy measures to create a framework for some children to remain permanently in the Russian Federation.
Although the report of the COI places much of the blame for ongoing rights abuses in Ukraine on the Russian armed forces, it also states that the Ukrainian government is guilty of committing similar acts albeit at a much lower rate. The Commission has documented a small number of violations in addition to two cases of war crimes involving the shooting, wounding and torture of Russian prisoners of war which were discussed in the COI’s previous report. The report also found instances where Ukrainian armed forces likely committed indiscriminate attacks and, on some occasions, did not take necessary precautions to avoid endangering civilians.
The COI’s report makes several recommendations on accountability measures. It considers the efforts undertaken at the national, regional, and international levels and states that the coordination of these measures is essential for ensuring justice for victims. Due to limited resources, the Commission recommends both parties to the conflict develop an investigatory and prosecutorial strategy, which will prioritise cases on the basis of clear criteria and ensure due process and transparent monitoring. In addition to judicial measures, the Commission firmly believes that other dimensions of accountability including truth reparations and guarantees of non-recurrence are essential. Mr Møse made it clear that priority should be given to establishing a victim’s registry and ensuring institutional support is available to those who need it including mental health and psycho-social services.
Speakers of the Country Concerned
The President of the HRC noted that the Russian Federation was not in the chamber to take the floor as a country concerned before allowing the representative of Ukraine to speak.
The Ukrainian representative informed the Council that Ukraine has endured the direst human rights and humanitarian emergency over the last year because of Russia’s unprovoked and unjustified full-scale invasion of her country. She noted that the entire world has witnessed unspeakable atrocities including unlawful killings, premeditated attacks on civilians and civilian infrastructure, unlawful confinement, torture, rape, unlawful transfer, and the deportation of children. Millions of people, mostly women and children have been forced to leave their homes due to hostilities leaving them homeless, and without a means to support a normal life. The representative reaffirmed her support for the work of the COI which shows that Russia has committed a wide range of violations of IHRL and IHL, many of which amount to war crimes and crimes against humanity. She added that Ukraine has launched a comprehensive effort with the help of all relevant national and international mechanisms and institutions to ensure that there will be no escape from accountability for Russia’s crimes in Ukraine. Moreover, she highlighted that arrest warrants issued by the ICC for Vladimir Putin and Maria Lvova-Belova, Russian Commissioner for Children's Rights are the first step towards bringing war criminals and their accomplices to justice. She underlined the need for the COI to continue assessing Russia’s actions, particularly the forced transfer of children to its territory. The representative reminded the Council that the 1948 Genocide Convention makes it clear that forcibly transferring children of a particular group with the intent to destroy whole or in part a national, ethical or religious group may constitute genocide. She further praised the work of the COI and assured the Council that the evidence presented in its report will inevitably become part of court proceedings including at a special tribunal which should be established to prosecute the Russian political and military leadership for the crime of aggression against Ukraine. The delegate also criticised the involvement of Belarus in facilitating military attacks on Ukraine as well as the unlawful deployment of Russian military personnel and their continued attacks at the Zaporizhzhia nuclear power plant which poses the risk of a major nuclear incident. Ukraine concluded its statement by calling on the Council to support an extension of the COI’s mandate for another year.
Interactive Dialogue on the COI’s Report
The Ukrainian Parliament’s Human Rights Commissioner expressed gratitude for the work of the COI and its recommendations. He stressed that some of the crimes require more attention, particularly the cases of unlawful confinement and the torturing of Ukrainian children and their forcible displacement to the Russian Federation. Such actions, he argued, are genocidal according to Article 2 of the UN Genocide Convention and must be legally qualified and investigated. The Commissioner concluded by calling on the COI to strengthen its work on the ground to document all crimes by Russian forces.
The representative of Lithuania on behalf of the Nordic-Baltic countries expressed shock at the brutality of the actions of the Russian armed forces in Ukraine. He lamented the fact that for more than a year the indiscriminate killings of civilians and attacks on critical civilian infrastructure have been daily occurrences in Ukraine. The delegate asserted that Russian soldiers continue to demonstrate unimaginable cruelty by perpetrating summary executions, torture, and conflict-related sexual violence. He condemned this practice and called for the immediate return of all 
Ukrainian children to their homes. The findings of the COI, he argued, are objective and impartial as opposed to Russia’s deliberate campaign of disinformation and propaganda. He concluded by noting that the Commission’s findings give an even stronger impetus to take decisive action to address numerous violations of IHL and IHRL as well as war crimes.
The delegation of the European Union began by acknowledging that for more than a year the international community has been a witness to the devastating consequences of Russia’s unprovoked and justifiable act of aggression against Ukraine. The EU reiterated the strongest condemnation of Russia’s invasion and thanked the COI for its report. The representative expressed concern over the growing body of evidence of violations of IHRL and IHL and war crimes. The representative condemned attacks against civilians and civilian infrastructure,
summary executions, unlawful killings, torture, rape and sexual and gender-based violence. She added that those responsible must be held accountable. The EU called on Russia to stop its aggression and fully respect Ukraine’s sovereignty, independence, and territorial integrity. In light of the recent arrest warrants issued against Vladimir Putin and Maria Lvova-Belova, the delegation stressed the importance of collecting, analysing and preserving evidence in light of arrest warrants.
Albania on behalf of the Group of friends of accountability following the aggression against Ukraine noted that Ukrainians have endured a variety of abuses including indiscriminate 
killings, extrajudicial executions of civilians and detainees including POWs, torture, and gender-based sexual violence. She expressed alarm at the COI’s findings which she claimed highlighted the need to ensure accountability under international law for these serious crimes committed in Ukraine and ensure justice for all victims and the prevention of future crimes. She concluded by stressing that impunity for those responsible for committing international crimes is unacceptable and a disservice to victims and their families.
The Chinese delegation highlighted that the outbreak of the war in Ukraine has had serious negative ramifications for all involved parties which have affected people’s livelihoods thereby bringing more instability to the regional and global situation. He underscored China’s belief that the sovereignty and territorial integrity of all states should be respected and the UN Charter must be observed. Moreover, the representative added that the legitimate security concerns of all states must be taken seriously. China emphasised that it is not in favour of any approach that would aggravate the conflict and regional tensions which he claimed is not in line with the interests of either party. He reminded the Council that the priority should be to ease the situation on the ground and avoid any further escalations of the conflict. The delegate
concluded by stressing that all efforts conducive to the peaceful settlement of the crisis must be supported and that China is ready to play a productive role in the political settlement of hostilities.
NGOs and National Human Rights Institutions
NGOs largely supported the work of the COI and see the findings in its report as being important for ensuring the accountability of perpetrators along with establishing reparations and guarantees of non-recurrence for victims. Many groups claimed that the report highlights the Russian government’s disregard for IHL and IHRL and implored the Council to extend the mandate of the mission. Several groups bemoaned the fact that the fatality rate is far outstripping the capacity to record and investigate casualties thoroughly and promptly. This creates disparities in casualty data published by sources which in turn can facilitate the spread of misinformation. Moreover, many NGOs questioned the absence of the mention of genocide within the report and asked the members of the Commission what more heinous acts must be committed by Russian forces for genocide to be recognised. NGOs called for all UN member states to ensure effective criminal accountability through their national jurisdictions and to further strengthen their cooperation with existing investigative and accountability mechanisms.
Concluding Remarks
All members of the Commission stressed the need for states to coordinate between different institutions to achieve justice for victims and their families. Concerning questions posed by NGOs about the lack of reference to genocide in the report, the Commission acknowledged that after examining the evidence available to them and comparing it to the Genocide Convention the COI has concluded that at this stage it is not possible to determine whether or not genocide has taken place. Although the Commission expressed concerns about the current situation in Ukraine, it has determined that certain elements require more investigation before levelling accusations of genocide against the Russian state.
The Commission also recognised the need for a broad notion of accountability to be adopted to ensure justice for victims. The COI reiterated its support for the ICC and underlined that at the international level, states must comply with their international obligations concerning reporting to the ICC and other institutions dealing with missing persons. In light of this, the Commission added that the creation of a missing person unit with sufficient forensic capacity will help with the recovery of persons in the future. Although the COI noted that the construction of a comprehensive and effective accountability system is a long-term process, they emphasised that this is essential for ensuring redress for victims of war crimes.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) welcomes the report of the COI which has offered a glimpse into the deteriorating humanitarian situation in Ukraine stemming from Russian aggression. The ongoing conflict in Ukraine has decimated cities across the country and continues to inflict unimaginable suffering on the civilian population, with more casualties, separation, displacement, and destruction of key infrastructure. Currently, nearly 18 million people in Ukraine are in need of humanitarian assistance and the conflict has undermined a myriad of human rights. Member states must coordinate efforts to provide humanitarian aid to the people of Ukraine and ensure that they have access to essential services. The international community must also maintain their support for Ukraine’s sovereignty and territorial integrity.
In order to carry out its work more effectively, the COI and other independent monitoring mechanisms must be granted unfettered access to all areas of Ukraine to adequately assess the damage caused by all human rights violations committed across the country. Only by doing this can the international community provide justice for those who have been forced to endure abuses of their fundamental rights and ensure legal avenues for redress. Although GICJ commends the work of the COI, we are concerned by its reluctance to state that the actions of Russian armed forces and affiliated armed groups amount to genocide. The forced transfer and deportation of children to the Russian Federation represent an egregious violation of the Genocide Convention and must be labelled as such by the Commission. We hope that future investigations by the Commission will rectify this and that accountability will be provided for those who have committed genocidal acts.
Regular_Session Justice Human_Rights Geneva Geneva4justice GICJ Geneva_International_Centre_for_Justice HRC52 Ukraine Russia Interactive_Dialogue War_Crimes
