The Independent International Commission of Inquiry on Ukraine—established by the United Nations Human Rights Council in March 2022—published its report on 15 March 2023, detailing numerous violations of international human rights, criminal and humanitarian law, primarily carried out by Russian forces. Such commissions of inquiry are essential when other enforcement mechanisms are blocked, and can provide avenues for accountability in national, regional, and international courts. The full-scale attention of international institutions on Ukraine is a critical moment to strengthen the work of international fact-finding missions for future and existing armed conflicts.
Russia’s invasion of Ukraine on 24 February 2022 prompted an unprecedented response from several international institutions, including but not limited to the UN General Assembly and the International Court of Justice. As the war progressed, allegations of violations of international humanitarian law (IHL), international human rights law (IHRL), and international criminal law (ICL) mounted – mostly regarding Russian forces – including but not limited to the massacres in Bucha, the deportation of children, and attacks on residential areas. According to the UN High Commissioner for Human Rights, the war in Ukraine has claimed more than 8,000 civilian lives and millions have fled the country or been internally displaced. While most attention has recently focused on the arrest warrants issued by the International Criminal Court for Vladimir Putin and Maria Alekseyevna Lvova-Belova, several actors – including international fact-finding missions and commissions of inquiry – have been gathering evidence of international crimes committed during the war with the ultimate aim of holding those responsible to account.
International fact-finding missions and commissions of inquiry
International fact-finding missions and commissions of inquiry are increasingly used by international institutions to establish credible facts in conflict situations and to assess them in light of international norms. Several international institutions have recently made increasing use of this instrument. At the UN level, such commissions are mandated by the UN General Assembly, the UN Security Council, the UN Secretary General, and the UN Human Rights Council (HRC). Over the past 25 years, the HRC has been the most active mandating body, having established more than forty of such commissions. While fact-finding missions themselves are often controversial, they are essential for generating and disseminating impartial knowledge about violations that can inform and facilitate political and legal responses at the national, regional and global levels. For example, the reports of the UN Independent International Commission of Inquiry on the Syrian Arab Republic were used as evidence in the landmark case on torture in Syria before the Koblenz Higher Regional Court in 2022. International courts and tribunals also begin proceedings following fact-finding reports and cite them as evidence. More broadly, documenting and condemning norm violations is essential to maintaining the legitimacy of, and respect for, international law.
The Independent International Commission of Inquiry on Ukraine
The Independent International Commission of Inquiry on Ukraine (IICIU), was established by the HRC on 4 March 2022. The constitutive resolution was adopted by a large majority of thirty-two votes in favor, two votes against (Russia and Eritrea), and thirteen abstentions (including, for example, India); Russia did not participate in the vote following its suspension from the HRC. The commission is mandated to investigate all alleged norm violations; to collect, verify, and analyze evidence, including through field visits and to identify those responsible. It is worth noting that the IICIU is mandated to investigate both sides of the conflict, making it a fairly balanced mandate – essential for the legitimacy of the commission as a whole. The IICIU published an interim report on 18 October 2022 and its comprehensive report on 15 March 2023.
Procedures: On-site visits and interviews
While the Ukrainian authorities have cooperated with the commission, providing written responses and access, the commission has so far received no cooperation from Russia. A central aspect of the commission’s work has been to conduct on-site visits (eight to date) to Ukraine (but not to the occupied territories absent Russian consent). Visits have included places of detention and sites of destruction to investigate the use of certain weapons. Similar to the approach of most fact-finding missions, a central source of the commission’s reports has been first-hand information, including more than 600 interviews with witnesses and victims of alleged violations and abuses. The commission collected information based on video and photographic sources, as well as satellite imagery, in order to corroborate information gathered by field visits and interviews. In addition, it has issued a call for submission of information and documentation relevant to its mandate (A/77/533, para. 9).
Findings: Violations of international law by parties to the conflict
The IICIU, citing its constitutive resolution, states that the applicable legal framework for the evaluation of its findings are IHL, IHRL and ICL (A/77/533, para. 14). The second report details violations of these legal frameworks in four broad areas: conduct of hostilities, personal integrity rights, laws of occupation, and forcible transfer and deportation of children. As several violations amount to “grave breaches” of the Geneva Conventions, they must be prosecuted by the high contracting parties to the Geneva Conventions based on the principle of universal jurisdiction. Many states have adopted the necessary legislation for universal jurisdiction, but in reality only a few of them have the necessary resources and means to do so.
In general, the IICIU attributes the majority of violations and war crimes to Russian forces, but also details, albeit in much smaller numbers, violations, including war crimes, committed by Ukrainian forces. This section highlights some of the IICIU’s findings in each category – noting that the report is more comprehensive and detailed.
In the conduct of hostilities, Russia has committed the war crime of willful killing as a result of its indiscriminate attacks. The Russian attacks examined are depicted as indiscriminate for two reasons: means and methods (use of unguided bombs dropped from aircraft; cluster munitions, etc.), and lack of a military objective. Some documented attacks in this category include attacks on the besieged city of Mariupol, a railway station and a shopping center in Kramatorsk (paras. 28–35). In addition, Russian attacks on energy-related infrastructure amount to war crimes of causing excessive incidental death, injury, or damage. The disproportionate nature of these attacks has impaired millions of people’s access to heating, water, sanitation, food and health care (A/HRC/52/62, paras. 40–43).
In the category of personal integrity rights, the facts documented by the IICIU demonstrate that Russian armed forces have committed the war crime of willful killing of civilians or persons hors de combat in Bucha and 17 other localities. The IICIU has confirmed that Russian forces were responsible for the execution of at least 56 men, two women and a 14-year-old boy. The killings were often preceded by ‘detention, interrogation, torture, or ill-treatment’. (A/HRC/52/62, paras. 33, 53–56). The report also details several cases of sexual and gender-based violence, including the war crime of rape, which are attributed to the Russian armed forces (paras. 78–85). The finding of IICIU, also show widespread and systematic torture committed by Russian armed forces in the context of unlawful confinement, amounting to the war crime of torture and inhumane treatment.
With regard to the laws of occupation, the IICIU states that both the annexation of Donetsk, Kherson, Luhansk, and Zaporizhzhya and the holding of referendums in these areas (contrary to the requirements of the Ukrainian constitution) constitutes violations of international law. Under IHL, the occupying power has the responsibility to maintain the status quo ante (i.e. as it was before) in the occupied territory as far as practically possible (A/HRC/52/62, paras. 90–94). Therefore, the referendums violate this prohibition. Additionally, the IICIU states that the annexations constitute a violation of the prohibition on the use of force in Article 2 (4) of the UN Charter, and a clear case of aggression and territorial conquest in breach of international law (A/HRC/52/62, para. 90).
Forced transfers and deportations of children have been the focus of recent ICC arrest warrants. The IICIU has investigated incidents involving the transfer of 164 children between the ages of four to eighteen years from the Donetsk, Kharkiv, and Kherson regions, which have also been documented by the Russian authorities. The commission concludes that these transfers and deportations amount to war crimes of unlawful deportation and unjustifiable delay in the repatriation of civilians under IHL.
While most norm violations are attributed to Russia, the commission concludes that Ukrainian armed forces are also ‘likely responsible’ for a limited number of violations of IHL and IHRL, including war crimes. The IICIU has documented the use of rocket-delivered anti-personnel landmines and cluster munitions by Ukrainian armed forces, making some of their attacks indiscriminate. In two cases, Ukrainian armed forces were also documented to have tortured wounded and captured Russian prisoners of war (A/HRC/52/62, paras. 86–89, 36–39). While noting that Ukraine is also investigating some of these cases, the IICIU has called for further investigations into these incidents.
Outlook
The Independent International Commission of Inquiry on Ukraine is a crucial tool to establish facts in a rapidly evolving conflict situation, coupled with uncertainty and disputes about the facts on the ground. The report provides the basis for naming and shaming norm violations in international organizations and the international community. On 4 April 2023, the Human Rights Council adopted its resolution on the situation in Ukraine, including the IICIU reports, with 28 votes in favor, two against (China and Eritrea) and 17 abstentions, underlining once again the broad – but not universal support – to uphold international law in the war in Ukraine. In this resolution, the HRC condemns documented norm violations and calls on all parties to the conflict to comply with international law.
Towards accountability?
The IICIU’s report also places a strong emphasis on accountability. In a separate document – not available to the public – the IICIU has listed the names of perpetrators and military units responsible for the above-mentioned crimes. (A/77/533, para. 22). The findings of fact and lists of perpetrators can inform several potential avenues for establishing accountability for crimes and norm violations committed in the course of the war in Ukraine. While the proceedings of the ICC are currently the most prominent example, ad hoc tribunals, regional courts, and national legal proceedings (both inside and outside Ukraine) also offer viable and proven avenues. States parties to the Geneva Conventions are even obliged to prosecute perpetrators of “grave breaches” of the Conventions, such as willful killing, torture and inhuman treatment, and unlawful transfer or deportation.
Beyond selectivity?
The well-founded focus of several international institutions on the war in Ukraine should be used as an opportunity to strengthen the international responses to other ongoing armed conflicts elsewhere. Strengthening the work of commissions of inquiry is crucial, particularly in cases such as Syria or Yemen, where a lack of political will or the limitations of other international mechanisms have blocked any prospect of accountability or justice. It will also be interesting to see how European states – not usually targeted by such mechanisms – will further react to the findings of the Independent Fact-Finding Mission on Libya on the commission of crimes against humanity by the Libyan Coast Guard who directly or indirectly has received monetary and technical support from EU and its member states (A/HRC/52/83, para. 4).
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