Ukraine: Arria-formula Meeting on “Violations and Abuses of Human Rights and Violations of International Humanitarian Law Investigated by the Independent International Commission of Inquiry on Ukraine”
Tomorrow afternoon (27 October), following the Security Council briefing on Ukraine under the “Threats to international peace and security” agenda item, there will be an Arria-formula meeting on “violations and abuses of human rights and violations of international humanitarian law investigated by the Independent International Commission of Inquiry on Ukraine”. The meeting is being co-organised by Albania, the UK, and the US. The three members of the Independent International Commission of Inquiry (COI) on Ukraine are expected to brief: Erik Møse (Chair), Pablo de Greiff, and Vrinda Grover.
Participation in the meeting, which is expected to be webcast on UN TV, is limited to Security Council members, while attendance is open to all UN member states.
According to the concept note prepared by the co-organisers, the objective of tomorrow’s meeting is to provide an opportunity for Council members to receive an update on the COI’s work, conclusions, and recommendations to date. The Council was last briefed by Møse on 27 April 2022, during an Arria-formula meeting on “Ensuring accountability for atrocities committed in Ukraine”, which was organised by Albania and France. The concept note invites participants to consider the implications of the COI’s findings on measures to strengthen the protection of civilians in Ukraine and for promoting accountability.
The COI on Ukraine was established by the UN Human Rights Council (HRC) on 4 March 2022 in resolution 49/1 to “investigate 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”, and other related matters. HRC resolution 52/32 of 4 April, which extended the mandate of the COI on Ukraine for an additional year, requested the COI to submit a report to the General Assembly at its seventy-eighth session, to be followed by an interactive dialogue.
In late March 2022, allegations that Russia committed war crimes in areas it had held for approximately two months in Kyiv’s suburbs sparked widespread calls for investigation and accountability. After Ukrainian forces regained control of these areas, Ukrainian officials and several international media outlets shared evidence (including of mass graves) and local testimonials of the indiscriminate killing and torture of civilians by Russian forces while in control of the city of Bucha.
On 18 October 2022, the COI submitted a report to the General Assembly on findings around events during late February and March 2022 in the four regions of Kyiv, Chernihiv, Kharkiv, and Sumy (A/HRC/49/71). The report found “reasonable grounds to conclude” that war crimes and violations of human rights and international humanitarian law have been committed in Ukraine since the start of the war on 24 February. Russian armed forces were “responsible for the vast majority of the violations identified”, while “Ukrainian forces have also committed international humanitarian law violations in some cases, including two incidents that qualify as war crimes”, the report said. Among other things, the report documented “the relentless use of explosive weapons with wide area effects in populated areas” and “patterns of summary executions, unlawful confinement, torture, ill-treatment, rape and other sexual violence committed in areas occupied by Russian armed forces across the four regions”.
On 29 August, the COI released a “conference room paper” providing a detailed account supporting their findings. The paper sets out violations by the Russian armed forces, including wilful killings, torture, rape, and sexual violence. Many of these violations constitute war crimes, and, if confirmed by further investigations, some may amount to crimes against humanity, according to the paper. The COI’s representatives called on the Russian authorities to ensure that they hold all perpetrators accountable and reminded the Ukrainian authorities to conclude investigations of the cases where the COI found violations by the Ukrainian armed forces.
In the COI’s latest report, submitted to the General Assembly on 19 October, the commission documented additional evidence that Russian authorities have committed “indiscriminate attacks and the war crimes of torture, rape and other sexual violence, and deportation of children to the Russian Federation”. The COI said that additional investigations confirmed its previous findings that Russian authorities had used torture in a “widespread and systematic way”. The report noted three cases in which the COI investigations have documented human rights violations committed by Ukrainian authorities against persons accused of collaboration with the Russian authorities.
Building on its previous report of October 2022, the COI’s recent report provides additional recommendations aimed at strengthening accountability and preventing subsequent violations. The recommendations call on Russia to “strictly” comply with international humanitarian law, take all feasible precautions to protect civilians and civilian infrastructure, and to ensure that all those committing violations are held “accountable in accordance with international human rights standards”. The COI noted that Ukraine should consider establishing a victims’ registry, which could serve as a first step to reparations; “harmonising” its legislation, particularly where it deviates from international standards; and clarifying the definition of “collaborative activity” to avoid legal uncertainty.
The report concludes by calling for enhanced accountability mechanisms at national, regional, and international levels by facilitating active involvement of civil society and organisations representing victims and survivors and by increasing the integration of the human rights aspect “more comprehensively” into the agenda of the Security Council.
At tomorrow’s meeting, the COI members are expected to highlight key findings of the commission’s investigations, reiterating that the evidence collected in the latest report shows that Russian authorities have continued to commit a large number of war crimes in Ukraine.
In his first oral update to the Third Committee of the General Assembly yesterday (25 October), Møse said that the COI has found that the waves of missile attacks on Ukraine’s energy infrastructure since 10 October 2022, as well as the widespread use of torture by Russian authorities, may amount to crimes against humanity, subject to further investigation. He added that Russian forces have carried out indiscriminate attacks with explosive weapons in violation of international humanitarian law. Møse noted that, in previous reports, the COI also “documented a small number of violations committed by Ukrainian armed forces, including likely indiscriminate attacks and two incidents that qualify as war crimes”.
At tomorrow’s meeting, the COI members may note that lack of access to areas occupied by Russian authorities remains a major challenge to the commission’s investigative work. Written requests and other efforts to reach out to Moscow have remained unanswered, according to the COI Chair.
Several Council members, including the US and European members, are likely to condemn Russia’s actions and call for accountability. They may note that the COI has recommended that all alleged violations and crimes be investigated and those responsible be held accountable through judicial proceedings in accordance with international human rights standards. These members might also point out that the COI has called for a comprehensive approach to accountability that includes both criminal responsibility and non-judicial measures, such as the victims’ right to truth, reparation, and non-repetition.
Some Council members might be reluctant to level accusations against Russia. These members stress the need to prioritise diplomacy and have suggested that isolating Russia may hinder efforts to promote constructive dialogue between the parties.
Russia is likely to deny allegations of atrocities by its troops in Ukraine. It has accused Ukraine and the West of fabricating evidence and spreading false narratives regarding the events in Bucha and other northern towns in Ukraine and has questioned the validity and impartiality of the investigations of the alleged atrocities. Russia might also accuse Western Council members of what it views as double standards in light of their positions on the recent escalation of violence in Israel and Gaza. In a 13 October press briefing, Russian Permanent Representative Vassily Nebenzia said that Western delegations have been willing to raise the issue of alleged violations of international humanitarian law in Ukraine, while “turning a blind eye to the Israeli air force attacks on civilian infrastructure in the Gaza Strip”.