Introduction
On February 24, 2022, Russia invaded Ukraine, violating the UN Charter and creating the largest threat to European unity and security since World War Two. While the threat to European security is undeniable, the threat posed to international humanitarian law is equally alarming. In the year since the invasion, more than 8,000 civilians have been killed and 8 million Ukrainians have become refugees. As the war continues and Russia retreats from regions it once occupied, evidence of possible violations of international law is being discovered.
While media coverage in the West has focused on alleged violations committed by Russia, that does not mean Ukraine is innocent. In the eyes of the law, Russia and Ukraine are equal and they are held to the same standards. Any breach of those standards, even once, cannot and should not be tolerated because any potential violation that is not investigated or prosecuted to the fullest extent of the law risks being repeated, either in Ukraine or elsewhere by states who watch how this war is being conducted and think they can do the same. Understanding the various alleged violations of international law that have been committed by both sides since the war began is critical if we are to not repeat them and if there is to be any measure of justice once this war is over. There are people still alive today who remember the horrors of World War Two, who remember what this world was like without the Geneva Conventions to regulate the conduct of war.
History of the Russia-Ukraine Conflict
Tensions between Russia and Ukraine can be traced back to 2004 and the Orange Revolution. The revolution began in November 2004 after the second-round results of the presidential election proclaimed Viktor Yanukovych the winner, despite exit polls showing opposition leader Viktor Yushchenko in the lead. The elections were marked by widespread voter fraud and corruption in favor of Yanukovych, the Kremlin’s candidate. Russian election monitors had “validated” the results of the run-off and proclaimed Yanukovych the winner. However, the Supreme Court of Ukraine annulled the results of the first run-off and ordered a repeat of the vote in December. Yushchenko won comfortably, much to the chagrin of people in eastern and southern Ukraine, as well as Russia. Yushchenko’s victory was a setback for Russia’s plans to keep Ukraine within its sphere of influence. However, Russia got its way in 2010 when Yanukovych became president after Yushchenko’s term was riddled with infighting and he failed to integrate Ukraine with the West.
Yanukovych’s presidency did not last long before he was ousted during the Euromaidan Revolution in 2013 when protests erupted across Ukraine after he rejected a deal that would have led to greater economic integration with the EU. The protests spread across the country and Yanukovych fled to Russia in February 2014. A month later, Russia annexed Crimea, citing a duty to protect the rights and lives of ethnic Russians, who comprise a majority of the Crimean population. Not long after the annexation, separatist groups in Luhansk and Donetsk in eastern Ukraine declared independence from Ukraine. Russia supported the separatist groups in the war against the Ukrainian military, with some reports suggesting that Russian soldiers had crossed the border and were fighting alongside the separatists and that some shelling had come from inside Russia.
In 2015, Russia, Ukraine, France, and Germany began negotiating the Minsk Accords, with “provisions for a ceasefire, withdrawal of heavy weaponry, and full Ukrainian control of the regions.” However, the agreement and ceasefire collapsed, and fighting resumed. In October 2021, Russia began substantially building up its troop presence on the Ukrainian border, with over 100,000 troops stationed there by the end of the year. In early February 2022, Russia deployed troops to its border with Belarus, surrounding Ukraine from the north, east, and south. Finally, on February 24, 2022, Russia launched a full-scale invasion of Ukraine, and the war has only deteriorated: more than 71,000 alleged war crimes are being investigated by the Ukrainian authorities.
International Law
After World War Two, the international community agreed that the conduct of war needed to be regulated or the atrocities committed during that time would be repeated. The Geneva Conventions, which are the foundation of international humanitarian law (IHL), are a set of four treaties and three additional protocols that regulate how states can wage war. One of the innovations of the Geneva Conventions is the concept of grave breaches, which are the most serious breaches of the law of war. Grave breaches are unique in that they are only applicable in international armed conflicts (e.g., the current Russo-Ukrainian war). There are articles common throughout the four conventions (the Common Articles) that describe what a grave breach is. Articles 50 and 51 of the first and second conventions describe grave breaches as “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body of health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Article 130 of the third convention includes the previous language, adding that “compelling a prisoner of war of the right of fair and regular trial prescribed in this Convention” is also a grave breach. Finally, Article 147 of the fourth convention, building on the three previous articles, includes “unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the right of fair and regular trial” and the “taking of hostages.” Grave breaches of the Geneva Conventions are legally and colloquially referred to as war crimes, which must be prosecuted by the High Contracting Parties.
It is widely accepted that international human rights law (IHRL) is applicable during times of war and that principle has been affirmed by numerous international legal bodies. Even though states are technically allowed to derogate some of their responsibilities under IHRL, they are only allowed to do so “to the extent strictly required by the exigencies of the situation. The measures of derogation may not be inconsistent with the state’s other international obligations, such as those under IHL.” There are also certain human rights that are considered non-derogable, such as the right to life, the right to liberty and security, and freedom from torture and inhumane or degrading punishment. Crimes against humanity are the most serious breaches of international human rights law, including violations of non-derogable rights.
This is where international criminal law (ICL) becomes applicable. ICL applies to four broad sets of crimes: war crimes, crimes against humanity, genocide, and the crime of aggression. These are the four crimes the International Criminal Court has jurisdiction over, as outlined in the Rome Statute. The Rome Statute defines war crimes as both grave breaches of the Geneva Conventions, as well as “other serious violations of the laws and customs applicable in international armed conflict” such as intentionally targeting civilians and civilian infrastructure. The Rome Statute also has defined crimes against humanity as acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Examples of crimes against humanity include, but are not limited to, “murder, extermination, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, and rape, sexual slavery… and any other form of sexual violence of comparable gravity.” Even though neither Russia nor Ukraine are state parties to the Rome Statute, war crimes and crimes against humanity committed on the territory of Ukraine are within the International Criminal Courts' jurisdiction because the situation was referred to the ICC by 43 state parties, and Ukraine lodged a declaration formally accepting the ICC's jurisdiction over crimes committed on the territory indefinitely.
Probable Violations of International Law
On October 18, the UN Independent International Commission of Inquiry on Ukraine published a report detailing the findings of its investigation into events that occurred between February and March 2022 in the Kyiv, Chernihiv, Kharkiv, and Sumy provinces of Ukraine. The Commission “has found reasonable grounds to conclude that an array of war crimes and violations of human rights and international humanitarian law have been committed in Ukraine since 24 February 2022.” Russian armed forces were responsible for the vast majority of war crimes and human rights violations. The Commission found that Russia most likely used explosive weapons indiscriminately in civilian areas, including indiscriminate attacks on residential buildings, schools, hospitals, and other buildings of non-military importance. Attacking civilian infrastructure not out of military necessity is a grave breach of the Geneva Conventions. Additionally, “The Commission found numerous cases in which Russian armed forces shot at civilians trying to flee to safety and obtain food or other necessities, which resulted in the killing or injury of the victims.” The Commission also found that “violations against personal integrity” were committed in the four provinces under Russian occupation. “These violations included summary executions, torture, ill-treatment, sexual and gender-based violence, unlawful confinement and detention in inhumane conditions, and forced deportations.” These are also grave breaches under the Geneva Conventions. Furthermore, the Commission found “a pattern of summary executions in areas temporarily occupied by Russian armed forces" including in Bucha, where over 400 people were executed during the month of Russian occupation. Many Ukrainian civilians were also illegally confined, tortured, and forcibly transferred to Russia. “Russian armed forces inflicted severe physical and mental pain and suffering upon the victims.” Sexual and gender-based violence was rampant with victims as young as 4 and as old as 83. Each of these crimes described by the Commission constitutes grave breaches under the Geneva Conventions and can be considered war crimes.
Even though Russia is responsible for most of the violations of international law, Ukraine is not absolved of wrongdoing. The Commission also found evidence of war crimes committed by the Ukrainian armed forces. “The Commission has also documented two cases in which Ukrainian armed forces shot, wounded, and tortured captured soldiers of the Russian armed forces.” In the first case, between March 24 and March 26, Ukrainian soldiers deliberately shot three Russian prisoners of war while interrogating them. The second instance occurred on March 29 when a Ukrainian soldier shot an already wounded Russian soldier three times at close range.
The Commission’s investigation was limited in scope. It only investigated violations of international law committed through March 2022. As more Russian forces began retreating, evidence of possible war crimes and other violations of international law have been reported. In September, the Ukrainian news agency, Ukrainska Pravda, reported that 447 bodies had been exhumed from a mass grave in Izium, Kharkiv Oblast. Most of the bodies are civilians and their exact causes of death will be investigated, although most show signs of violent death, and 30 showed evidence of torture. As stated above, attacking civilians is a war crime, and the evidence, in this case, speaks volumes, but it must be properly investigated for this to be definitively called a war crime.
A Deliberate Strategy?
International law is clear, but it seems that every day the world discovers another possible war crime or another violation of human rights. This begs the question: why? Why violate the laws of war and international human rights law? The answer is different depending on which country you are asking about, even though the law is equally applied to both. "This equal application of IHL to both belligerents is particularly difficult to accept in the current situation, where Russia is the aggressor and therefore responsible for all human suffering in Ukraine, whether or not it results from violations of IHL and even when it is directly caused by Ukraine because even that would not have occurred if Ukraine had not to defend itself from the Russian invasion.” The answer to why Ukraine committed those two war crimes is very simple: self-defense. The extent to which committing war crimes is the best way to defend your country is questionable, but that is the reason.
On the other hand, Russia appears to be violating international law as part of a deliberate strategy. In the months and days before the war, Vladimir Putin made a series of addresses to the nation. On July 12, 2021, Putin wrote an article titled “On the Historical Unity of Russians and Ukrainians” in which he wrote there is no historical basis for Ukrainian independence from Russia, that Ukraine is a product of historical Russia and as such owes its existence to Russia. In this article, Putin accused Ukraine of fratricide by forcing Russians to assimilate into Ukrainian culture to create an “ethnically pure Ukrainian state, aggressive towards Russia.” Ironically, Putin ends the article by stating “we respect the Ukrainian language and traditions. We respect Ukrainians’ desire to see their country free, safe, and prosperous,” but the only way to do that is by aligning itself with Russia.”
Exactly eight months later, three days before the invasion, Putin addressed the nation, repeating the same sentiments on the historical unity of the two nations, and proclaiming that Ukraine “actually never had any stable traditions of real statehood.” On the day of the invasion, Putin's intention for Ukraine became clearer. He stated that Ukraine was perpetrating genocide against ethnic Russians. "The purpose of this operation is to protect people who… have been facing humiliation and genocide perpetrated by the Kyiv regime. To this end, we will seek to demilitarize and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation.” Vladimir Putin’s thinly veiled eliminationist rhetoric is contrasted by the outright eliminationist rhetoric of Russian media pundits like Timofey Sergeytsev. At the beginning of the war, Sergeytsev called the Ukrainian masses “passive Nazis” and “accomplices of Nazism” and called for a “total lustration” of Nazis (i.e., the Ukrainian people and government). Sergeytsev, echoing Putin, wrote, “Ukraine, as history has shown, is impossible as a nation-state, and attempts to "build" one naturally lead to Nazism.” Any Russian citizen or soldier, reading these articles and listening to these speeches in the Russian state media echo chamber, would undoubtedly internalize this as the truth. Many Russians have: 74% support the military’s actions in Ukraine.
Russia has made it abundantly clear it does not recognize the existence of an independent Ukraine, going as far as saying that Ukraine is run by Nazis that need to be “liquidated.” To achieve this goal of demilitarizing and denazifying Ukraine, the Russian armed forces have been deliberately brutal towards civilians in the towns they occupied. For example, Germany’s foreign intelligence service, the BND, intercepted radio communications among Russian military personnel when they were north of Kyiv. One soldier said that they shot a person on a bicycle and another soldier said, “First you interrogate soldiers, then you shoot them.” Killing a civilian and prisoners of war are both violations of the Geneva Conventions. Committing atrocities serves as a means to an end. By terrorizing civilians and committing gross violations of international law, Russia is trying to deter resistance and assert its dominance over the Ukrainian people. “Russia’s political goals in Ukraine lend themselves to violence against civilians, even more so after Moscow’s narrative shifted the motive for the war from liberating the Ukrainian population to cleansing it from “Nazi” elements.” Asserting control over the Ukrainian people can only be achieved by dehumanizing them to the point where they no longer have the will to fight back.
Moving Forward
There is strong evidence both Russia and Ukraine have violated international law during this war. The Independent International Commission of Inquiry on Ukraine found evidence of such violations, disproportionately committed by Russia. There is also evidence supporting that this is a deliberate strategy by Russia to assert control over the Ukrainian people. Atrocities do not happen in a vacuum, but when they happen, they must be documented and investigated with the utmost urgency and respect for the people harmed. There are currently numerous international and domestic investigations open, but investigations of this nature can take months, even years, to complete. The Commission of Inquiry needed seven months to investigate crimes committed in just one month. This war has lasted for over a year, so the world may not find out the extent of war crimes until long after the war has ended. This poses its own set of challenges. Witnesses could emigrate, evidence could be destroyed, and victims, who are severely traumatized, may need years before they can tell their stories. It is also highly improbable that Russia will cooperate with any investigation, seeing as it does recognize the authority of the International Criminal Court, nor does it recognize Ukraine as a sovereign nation. None of these challenges should deter the international community from investigating, documenting, indicting, and, hopefully, prosecuting these gross violations of international law. Europe has seen the ‘cleansing’ narrative before and it, along with the rest of the world, must set the precedent now that any crimes and violations of a similar nature in a similar context will be thoroughly investigated and prosecuted, lest they will be repeated.