What's In Blue

Posted Wed 21 Sep 2022

Ukraine: High-Level Briefing

Tomorrow morning (22 September), the Security Council will convene for a ministerial-level briefing on Ukraine. The meeting, titled “The fight against impunity in Ukraine”, is a signature event of France’s Council presidency. French Minister for Europe and Foreign Affairs Catherine Colonna will chair the meeting. Secretary-General António Guterres is expected to provide introductory remarks, and ICC Prosecutor Karim Asad Ahmad Khan will brief. Several member states—including Belarus, Czechia, Germany, Lithuania, Poland and Ukraine—are expected to participate under rule 37 of the Council’s provisional rules of procedure. EU High Representative for Foreign Affairs and Security Policy Josep Borrell will also participate under rule 39.

Tomorrow’s briefing will be the Council’s first high-level meeting on Ukraine since the start of the war on 24 February. It will also be the first formal meeting specifically focused on accountability in Ukraine. Council members previously discussed the topic during the Arria-formula meeting on 27 April on “Ensuring accountability for atrocities committed in Ukraine”, organised by Albania and France. The issue was also brought up by several Council members during the open debate on “Strengthening accountability and justice for serious violations of international law” held on 2 June during Albania’s Council presidency.  (For more information, see our 26 April and 31 May What’s in Blue stories.)

Investigations into alleged violations and abuses of human rights and violations of international humanitarian law were launched within a week of Russia’s invasion of Ukraine. On 2 March, Khan announced his decision to proceed immediately with an active investigation into the situation in Ukraine after receiving referrals from 39 ICC States parties. Although Russia and Ukraine are not State parties to the Rome Statute, the latter has accepted the ICC’s jurisdiction for crimes committed within its territory.

Several other international mechanisms have been created to investigate war crimes in Ukraine. On 3 March, 45 Organization for Security and Co-operation in Europe (OSCE) participating states invoked the Moscow Mechanism to create an independent fact-finding mission to investigate abuses of international human rights law and international humanitarian law in Ukraine. The mission presented its findings in a report published on 13 April, which documented “clear patterns of [international humanitarian law] violations by the Russian forces in their conduct of hostilities”, citing evidence of the deliberate targeting of civilians, attacks on medical facilities, rape and executions.

After holding an “urgent debate on the situation of human rights in Ukraine stemming from the Russian aggression” on 3 and 4 March, the UN Human Rights Council (HRC) established the Independent International Commission of Inquiry on Ukraine (ICIU). The ICIU’s responsibilities include investigating “all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of aggression against Ukraine by the Russian Federation”, as well as preserving information, documentation and evidence of such violations and abuses in view of any future legal proceedings. The ICIU is expected to provide an oral update to the HRC on 23 September and to submit a report to the General Assembly in October, during its 77th session, and to the HRC during its 52nd session in March 2023.

Calls for accountability in Ukraine from several member states intensified in early April following reports of atrocities—including sexual violence and indiscriminate killing and torture of civilians—committed by Russian forces while in control of areas in the Kyiv region. On 13 April, following a trip to Bucha, Khan described Ukraine as a “crime scene” and said there were “reasonable grounds” to suggest Russia had committed war crimes during its military operation.

On 15 September, mass graves containing hundreds of bodies were found in the north-eastern city of Izium, which was recaptured during Ukraine’s recent counteroffensive. Ukrainian authorities exhuming the bodies have found evidence of atrocities, including signs of torture, prompting calls for the creation of a special international tribunal. On 16 September, the UN announced that its Human Rights Monitoring Mission in Ukraine (HRMMU) would investigate the mass graves for possible signs of atrocities.

Russia has categorically denied accusations of atrocities committed by its troops in Ukraine. It has accused Ukraine and the West of fabricating evidence and spreading false narratives regarding the events in Bucha. On 18 April, Russian President Vladimir Putin gave an honorary title to a brigade accused by Ukraine of having committed war crimes in Bucha. In a 16 September tweet, the Russian embassy in Canada described the reports of mass graves in Izium as “another monstrous provocation by Kyiv in a bid to repeat [Bucha]…and mobilize the Western public amid the [UN General Assembly] next week”.

At tomorrow’s briefing, Guterres is expected to highlight the war’s devastating effects on civilians. In his address to the General Assembly yesterday (20 September), Guterres said that “the war has unleashed widespread destruction with massive violations of human rights and international humanitarian law”, describing the latest reports on Izium’s burial sites as “extremely disturbing”.

Khan is expected to brief on his office’s investigation in Ukraine and efforts to provide cooperation and assistance to Ukrainian national authorities in accordance with Part 9 of the Rome Statute. As at 18 September, the office of Ukraine’s prosecutor general had recorded over 34,000 alleged war crimes committed by Russian forces since 24 February. Given the various investigations of alleged war crimes in Ukraine, Khan is likely to emphasise the continued need for coordination to avoid duplication. This was a key issue raised during the Ukraine Accountability Conference held at The Hague on 14 July. At that conference, 45 countries—including Albania, France, Ireland, Mexico, Norway, the UK, and the US, among others—signed a political declaration to work together on investigations into war crimes in Ukraine.

Council dynamics on Ukraine, including on accountability issues, remain difficult. While nearly all members support an independent UN investigation of alleged war crimes in Ukraine, most have been hesitant to accuse Russian forces of having committed atrocities in Ukraine before the conclusion of a full and transparent investigation. Several members that abstained on the 7 April General Assembly resolution suspending Russia from the HRC—including Brazil, Mexico and the United Arab Emirates (UAE)—said in their explanations of vote that a decision on suspending Russia from the HRC should have been taken only after the conclusion of the investigation by the ICIU.

At tomorrow’s meeting, some Council members may express support for the creation of a special tribunal for Ukraine on the crime of aggression. Moreover, given the extent of damages to Ukraine’s civilian infrastructure and loss of personal property resulting from the war, some members may call for the creation of an international compensation mechanism to register damages arising from Russia’s invasion of Ukraine. It appears that a General Assembly draft resolution recommending the creation of such a mechanism may be tabled in October.

Beyond the topic of accountability, Council members are also expected to express their views on a range of issues concerning the war in Ukraine. The US and European members may condemn the recent announcement by Russia of its plans to conduct referendums from 23 to 27 September in territories that it holds in eastern and southern Ukraine and the decision of Russian President Vladimir Putin to partially mobilise army reserves to support Russia’s war efforts in Ukraine. The US and European Council members view these developments as further efforts by Russia to violate Ukraine’s sovereignty and territorial integrity. These members may urge non-aligned member states to take a stronger stance against Russia in this regard.

The US and European Council members are also expected to condemn recent attacks by Russian forces on critical infrastructure in Ukraine, including the 15 September missile strike that reportedly destroyed a water pumping station in Kryvyi Rih in central Ukraine and the 19 September missile attack that landed 300 metres from the South Ukraine Nuclear Power Plant in the city of Yuzhnoukrainsk in the Mykolaiv region.

Some non-Western elected Council members are likely to signal discontent with the Council’s inability to prevent and resolve the war in Ukraine. Agreement on Council products on Ukraine has proven difficult because of the direct involvement of a permanent member in the conflict and members’ sharply diverging positions on the issue. Several members—including Brazil, Ghana, Mexico, and the UAE—may express concern that Council deliberations have not provided constructive support for diplomatic action to find a peaceful settlement to the conflict.

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