Organization for Security and Co-operation in Europe
Office for Democratic Institutions and Human Rights
Address: Miodowa 10 tel: +48-22-520 06 00 e-mail: office@odihr.pl
00-251 Warsaw, Poland fax: +48-22-520 06 05 website: www.osce.org/odihr
256/2022
NOTE VERBALE
The OSCE Office for Democratic Institutions and Human Rights (ODIHR) presents its compliments to the Delegations of the OSCE participating States and, in accordance with paragraph 7 of the 1991 Moscow Document, has the honour to herewith transmit the observations of the mission of experts established under the Moscow Mechanism, invoked by 45 OSCE participating States following bilateral consultations with Ukraine, together with a description of action Ukraine has taken or intends to take upon it.
ODIHR avails itself of this opportunity to renew to the Delegations of the OSCE participating States the assurances of its highest consideration.
Warsaw, 11 July 2022
Delegations of the OSCE participating States
Vienna
ODIHR.GAL/36/22/Corr.1
14 July 2022
ENGLISH only
1
REPORT ON VIOLATIONS OF INTERNATIONAL
HUMANITARIAN AND HUMAN RIGHTS LAW,
WAR CRIMES AND CRIMES AGAINST HUMANITY
COMMITTED IN UKRAINE (1 APRIL – 25 JUNE 2022)
Content
I. Executive Summary......................................................................................................3
II. Introduction and Mandate ...........................................................................................4
III. Methodology...............................................................................................................7
A. Scope of the mandate..............................................................................................7
B. Methods of Fact-Finding........................................................................................8
C. Applicable International Standards ......................................................................9
1. International Humanitarian law ........................................................................9
2. International Human Rights Law ....................................................................10
3. International Criminal Law .............................................................................12
4. OSCE Commitments.........................................................................................14
IV. Alleged Violations of International Humanitarian Law.........................................15
A. Treatment of Persons in The Power of the Enemy..............................................15
1. Wounded, Sick And Shipwrecked as Well as Medical Personnel...................15
2. Respect For the Dead........................................................................................16
3. Prisoners of War (POWs).................................................................................17
4. Civilians.............................................................................................................20
5. International Humanitarian Law of Military Occupation..............................24
B. Conduct of Hostilities...........................................................................................34
1. General Assessment of Violations of IHL Rules on Targeting........................34
2. Sieges and Humanitarian Corridors................................................................36
3. Targeted Attacks on Individual Civilians........................................................38
4. Arming of the Civilian Population ...................................................................40
5. Human Shields..................................................................................................40
6. Passive Precautions to be Taken by the Defender ...........................................41
7. Specially Protected Objects..............................................................................42
8. Use of Weapons.................................................................................................48
9. Unlawful Methods of Warfare..........................................................................53
10. Naval Warfare...................................................................................................53
C. Conclusions...........................................................................................................57
2
V. Alleged Violations and Abuses of International Human Rights Law .......................59
A. Impact of the Conflict on Civil and Political Rights..................................................59
1. Right to Life .............................................................................................................59
2. Prohibition of Torture and Inhuman and Degrading Treatment..........................66
3. Right to Liberty and Security..................................................................................70
4. Right to a Fair Trial.................................................................................................74
5. Rights to Freedom of Expression ............................................................................77
6. Other Civil and Political Rights ..............................................................................79
B. Impact of the Conflict on Economic, Social and Cultural Rights.............................83
1. Right to Education...................................................................................................83
2. Right to Health.........................................................................................................85
3. Right to Social Security ...........................................................................................86
4. Right to Food and Water .........................................................................................88
5. Right to a Healthy Environment .............................................................................89
C. Impact of the Conflict on Vulnerable Groups...........................................................89
1. Women .....................................................................................................................90
2. Children ...................................................................................................................92
3. Older Persons...........................................................................................................96
4. Persons with Disabilities..........................................................................................99
5. National and Ethnic Minorities.............................................................................100
6. LGBTQ Persons.....................................................................................................102
7. Watchdogs (Human Rights Defenders and Other Activists)................................104
8. Internally Displaced Persons (IDPs) .....................................................................105
D. Conclusions ...............................................................................................................107
VI. Ensuring Accountability for War Crimes, Human Rights Violations and Crimes
against Humanity .............................................................................................................109
A. Fact-Finding Mechanisms..................................................................................109
B. Responsibility Mechanism..................................................................................111
1. Responsibility of the State ..............................................................................111
2. Individual Criminal Responsibility................................................................112
VII. General Conclusions..............................................................................................114
3
EXECUTİVE SUMMARY
On 2 June 2022, the Delegations of 45 OSCE Participating States, after consultations with Ukraine, invoked the OSCE Moscow Mechanism under paragraph 8 of the Moscow Document to “consider, follow up and build upon the findings of the Moscow Mechanism report received
by OSCE participating States on 12 April 2022” addressing “the human rights and humanitarian impacts of the Russian Federation’s invasion and acts of war, supported by Belarus, on the people of Ukraine, within Ukraine’s internationally recognized borders and territorial waters”. In accordance with the Moscow Document, Ukraine subsequently selected three persons from the list of experts to be part of an expert mission. These three persons are:
Ms Veronika Bílková (Czech Republic), Ms Laura Guercio (Italy) and Ms Vasilka Sancin (Slovenia). The mission of experts was officially established on 7 June 2022.
The current mission of experts is the second one established to investigate alleged violations of international humanitarian law (IHL) and international human rights law committed in the territory of Ukraine during the armed conflict triggered by the act of full-fledged aggression 25 carried out by the Russian Federation against Ukraine on 24 February 2022. The first mission was established on 15 March 2022. In its report, submitted on 5 April 2022 and made public on 13 April 2022, the mission covered the period from 24 February until 1 April 2022. The period under scrutiny in the second report is 1 April – 25 June 2022, though occasionally, violations committed prior to 1 April 2022 but which were not reported in the first report, because information about them only became available after this date, are also included in this report.
In the preparation of this report, the mission of experts used several main methods of factfinding, relying on various sources of information. First, it built on the data contained in the first report on Ukraine produced under the OSCE Moscow Mechanism in April 2022, as well as on other reports, comments and statements produced by international organizations (UN, OSCE, Council of Europe, EU), States, NGOs, and media. Secondly, the mission conducted various interviews, both online and in person. Thirdly, on 20-23 June 2022, two members of the expert mission, Ms Bilkova and Ms Guercio, travelled to Ukraine. During the stay in Kyiv, they met with representatives of various Ukrainian authorities. They also visited the towns of Irpin, Bucha and Hostomel. The visit to Ukraine allowed the mission to collect essential direct information, vital for the drafting of this report, as well as confirmation of information learned from other sources. Through all the different methods of fact-finding, the mission was able to get access to a large amount and variety of evidence and to gain a good oversight of the situation in general and of particular issues under scrutiny.
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 considerable 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 with disregard to 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, which 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 beenextensively violated in the conflict in Ukraine. Some of the most serious violations includetargeted 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 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 socalled 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 has 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
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
665 Interview with representatives of the Ministry of Justice of Ukraine, on file with the authors of the report.
SeeЗакон України № 2236 Про внесення змін до Кримінального процесуального кодексу України та інших
законодавчих актів України щодо співробітництва з Міжнародним кримінальним судом, 3 травня 2022.
666 Проект закону Про внесення змін до деяких законодавчих актів України щодо імплементації норм
міжнародного кримінального та гуманітарного права, 20 травня 2021.
115
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 socalled 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.
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