Russian war crimes in the Ukraine-Russia conflict – the extent of the crimes and the ongoing investigatory work

Introduction 

The concept of “war crimes” first arose in the aftermath of World War II. In the legal realm, war crimes are regulated in various sources, and, just like law, their definition is adaptable as it is dependent on the uniqueness of each new war (Morrison, 2007). War crimes are considered ‘atrocious’ (Morrison, 2007) and codified in the Rome Statute of the International Criminal Court and several other treaties and conventions. Article 8 of the Rome Statute defines and illustrates the scope of war crimes in explicit detail and elaborates on classifications in categories (Neville, 2022). These include, but are not limited to, the violations of personal security, dignity, liberty, and the right to life, and in cases where victims are children, the rights of the child (Human Rights Council, 2023). 

As will be asserted throughout this article, the imprecision and uncertainty of the law concerning war crimes, and the lack of legitimate power of international law and its institutions pose an inherent problem in tackling the Russia-Ukraine war. More notably, there is an issue regarding Russia being answerable for the crimes it commits against Ukraine under international law due to a lack of jurisdiction. However, the EU’s stance on fighting war crimes and other internationally recognised crimes remains clear: while it has yet to place combating international crimes on the forefront of the agenda, it is a goal that the EU is actively pursuing in the hope of superseding its previous and original focus on economic growth and financial profit (Caianiello, 2022).

The current state of affairs

Russia has a history of committing war crimes. While the war on Ukraine paints the most recent picture of gruesome violations of international humanitarian law, the 2008 war in Georgia has also remained in memory in this respect. Human rights organisations discovered war crimes that unfolded throughout the conflict, where over 80 percent of the war crimes that violated the Geneva Conventions were attributable to Russia (Mullins, 2011). Since the war on Ukraine commenced on the 24^th of February 2022, the Ukrainian population has been living in a state of constant fear, panic, and precariousness. Almost 13.5 million civilians have been relocated, with 8 million of them having fled their home country, and close to 5.5 million moving within their country. Additionally, over 8,000 civilians have lost their lives, not to mention the Ukrainian armed forces that have been killed (Human Rights Council, 2023). Hence, it is imperative to set the objective of trying to achieve ‘justice’, in whichever way possible. 

A report from March of this year of the Independent International Commission of Inquiry on Ukraine framed the spectrum of war crimes that are committed by Russia and concluded in a Human Rights Council session that a wide range of conduct has been violating international humanitarian law and thus constitutes war crimes. More specifically, 25 attacks have been investigated, considered as not in alignment with Russia’s war objectives, and deemed immoderate, especially since they were mostly targeted at groups of civilians who lacked protection and the means to defend themselves against the attacks. Moreover, the complete disregard for the locations they attacked, which included medical institutions and educational buildings, and the failure to take into consideration the many civilians present during these attacks, generated indiscriminate attacks. In addition to that, civilians have been subjected to danger as Russian forces purposefully entered civilian areas, which has been further exacerbated by the Russian forces taking intended aim at the infrastructure of Ukraine, resulting in inhumane living conditions (Human Rights Council, 2023). Aside from that, personal integrity has been violated on numerous levels by the Russian military. For one, in locations under the governance of Russian armed forces, executions have been carried out, and extensive torturing in self-deployed ‘detention centres’. 

In all documented cases, the Russian military forces have been deemed as either liable or presumably liable. In many cases, the detention in and of itself was unfounded and used to manipulate Ukrainian civilians into subordination, and many persons are left unaccounted for to this day. Many additive war crimes have been identified – such as arbitrary deportation within Ukraine and to Russia of inmates, torture, and inhumane interrogations – mostly with the goal of acquiring information as well as several attacks against civilians who were in the process of evacuating and going about mundane day-to-day activities, such as driving their cars (Human Rights Council, 2023). 

Finally, the issue of gender is a common narrative in war crimes, marked by the prevalence of rape being committed against women. In this particular war, rape has predominantly been taking place during house searches when women were in solitude – however, men, including Ukrainian soldiers, were not spared, and children were in some cases obliged to watch (Human Rights Council, 2023). An aggravated aspect to consider amidst the horrendous crimes committed on a daily basis is the definingly extensive magnitude that this war has been amounting to worldwide, damaging the economy on a global scale (Wadephul, 2022). The stops put on the exportation of essential crops and the extreme increase in energy prices has shown the economic dependencies and lack of economic diversity that have been detrimental throughout this war. 

Legal grounds and investigatory actions 

In order to address the severe violations of international humanitarian law, and hold Russia accountable for committing war crimes, internationally acknowledged human rights and their laws constitute the cornerstones of ‘just and humane’ armed conflicts, aiming to minimise casualties and protect the lives of the most vulnerable. If situations or conflicts escalate, criminal investigations are held to apply further scrutiny and determine the severity of the violation(s) of international human rights (Neville, 2022). 

Based on a report by the European Parliament, there is an abundance of proof of infringements of international humanitarian law based on Russia’s actions since the beginning of the war – specifically war crimes, as well as crimes against humanity, and genocide. War crimes are distinguished from genocide and crimes against humanity under the Rome Statute. While genocide and crimes against humanity include conduct that constitutes war crimes, war crimes are committed in warfare only against armed forces and civilians. Most prevalent are attacks on civilians, especially unarmed women, and children, and the destruction of civilian infrastructure such as schools and hospitals. The unrecorded casualties exacerbate the state of affairs even more, even though there have already been some prosecutions (Neville, 2022). At this stage, several active investigatory processes are ongoing. Firstly, from March 2022, the Organization for Security and Cooperation in Europe (OSCE) investigated potential war crimes through the Moscow Mechanism. This mechanism allows the OSCE to monitor and assess potential human rights problems in OSCE-participating states by deploying experts to deliver reports on these potential human rights violations. It concluded with proof that there were crimes being committed as part of the war, but asserted that the instigation of the war itself was not criminal (Neville, 2022). 

Beyond that, as of April 2022, a so-called Joint Investigation Team (JIT), a collaboration of the International Criminal Court (ICC) prosecutor’s office and Eurojust, was formed. Eurojust is the term for the European Union’s authority for criminal justice liaison. Alongside Ukraine, many other member states function under the scope of a JIT, which consists of a joint investigatory process lasting one to two years. The Ukraine-Russia war is the first time the ICC’s prosecutor’s office joined a JIT (Neville, 2022). Furthermore, within the United Nations Human Rights Council, experts are investigating potential human rights violations in Ukraine and the European Court of Human Rights is investigating violations of the European Convention on Human Rights. Additionally, Ukraine is investigating war crimes within its own territory, through means of an online platform that gathers accounts /records of war crimes and crimes against humanity. There is also a supplementary app to report war-related crimes (Neville, 2022).

Unfortunately, there are issues pertaining to the legal grounds of the JIT. Ukraine and Russia are not signatories of the Rome Statute, which would be required to establish jurisdiction of the ICC in this case. However, there are legal principles supporting the prosecution of war crimes, such as universal jurisdiction, which allows the law to be enforced beyond state lines, and individual criminal responsibility enabling the prosecution of individuals for internationally recognized crimes. Still, in order for the JIT to be fruitful, EU Parliament resolutions continuously advocate for Ukraine to sign and ratify the Rome Statute (Neville, 2022). 

Conclusion

While recent investigations have been successful in finding legal wrongdoings en masse, the reports have not had any effect whatsoever. Even though the EU has been appealing to Ukraine to accelerate the ratification of the Rome Statute and to Russia regarding the prosecution of its criminals, there is a lack of legal basis needed to enforce the EU’s argument. Moreover, it needs to be kept in mind that international humanitarian law and international human rights are further consolidated by the practice of customary law. Customary law describes the fact that commonly used legal practices that govern on an international scale are not codified, but considered and adopted in international legal operations, especially aiding in filling in the blanks that are not covered by treaties and conventions (Neville, 2022). However, customary legal sources on laws governing war are, similarly to the written sources, ambiguous and inexplicit, impeding the efforts of bringing justice to the people of Ukraine even further. 

Another problem arises due to the lack of enforcement institutions that cater to violations of human rights in times of war (Morrison, 2007). While there are international legal institutions and authorities like the ICC, their influence is limited as their interference is only warranted in states that have ratified the Rome Statute, showcasing the struggle of accomplishing legal realisation. 

Nonetheless, in terms of the consequences for Russia, the notion of accountability has been brought forward by the recent resolution report of the Human Rights Council, which established the demand of holding the offenders legally liable and further determining the extent of their punishment through judicial means (Human Rights Council, 2023). Notably, the efforts of the EU should not be placed in the background of the legally just mediation of this conflict. The JIT was instigated thanks to the EU and thus it is essential that closer attention is paid to the EU and that it is allowed to further engage with and investigate international crimes (Caianiello, 2022).

The blatant neglect of Russian armed forces towards Ukrainian civilians and soldiers amounts to violations of international humanitarian law and human rights in alarmingly numerous instances. Besides the clear breaches of internationally recognised law, the ramifications for the victims, the Ukrainian population, are devastatingly profound (Human Rights Council, 2023). Consequently, honouring the legal notion of holding perpetrators responsible for the crimes they have committed is the least that can be done as retribution, even though actual reconciliation can never be achieved. Regrettably, whether these demands will be met by Russia depends on the further development of the legal situation, and how the aspect of legal responsibility continues to evolve. 

Caianiello, M. (2022). The Role of the EU in the Investigation of Serious International Crimes Committed in Ukraine. Towards a New Model of Cooperation?, European Journal of Crime, Criminal Law and Criminal Justice, 30(3-4), 219-237. doi: https://doi.org/10.1163/15718174-30030002

Morrison, D. C. (2007). War crimes. Great Decisions, 65–76. http://www.jstor.org/stable/43682471

Mullins, C. W. (2011). War crimes in the 2008 Georgia—Russia conflict. The British Journal of Criminology, 51(6), 918–936. http://www.jstor.org/stable/23639898

Neville, A. (2022). Russia’s war on Ukraine: Investigating and prosecuting international crimes. European Parliamentary Research Service. Human Rights Council (2023, 16 March). https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/733525/EPRS_BRI(2022)733525_EN.pdf

Report of the Independent International Commission of Inquiry on Ukraine. 52^nd session, Agenda item 4, UN Doc A/HRC/52/62 (16 March 2023).

Wadephul, J. D. (2022). The War against Ukraine and the World Order. Horizons: Journal of International Relations and Sustainable Development, 21, 106–115. https://www.jstor.org/stable/48686700