Ukraine can and should investigate its own military’s war crimes

(Photo: GETTY IMAGES / BBC)

While nowhere near the scale of the Russian atrocities, there is mounting evidence that Ukrainian forces have committed war crimes over the course of the Ukraine-Russia war. The allegations, and the evidence supporting them, won’t go away. What matters now is how Ukraine responds to them. Its allies have a role to play in shaping that response. Unlike Moscow, Kyiv is capable of addressing atrocities committed by its own forces in its own courts.

Since Russia’s invasion of Ukraine, allegations that Ukrainian forces have committed war crimes against Russian officers and prisoners of war (POWs) have periodically come to light. A controversial Amnesty International report asserted that Ukrainian military tactics put civilians in danger. Video footage has been published suggesting that Ukrainian troops may have executed surrendering Russian officers in the town of Makiivka. Somewhat forgotten in all of this are the findings of the International Criminal Court (ICC), which announced in 2019 its determination that Ukrainian forces committed atrocities against Russian soldiers in eastern Ukraine 

To be clear: none of these allegations draw moral or legal equivalency between the acts of Ukrainian and Russian forces. Any alleged crimes committed by Ukrainian officers pale in comparison to the historic barbarity of Russian aggression and atrocity. But all atrocities must be accounted for, not just those of one’s enemies.

In response to the videos showing potential war crimes committed by Ukrainian forces, Ukraine announced that it would investigate the alleged crimes captured on the videos. However, authorities have claimed they will open an investigation into the war crime of perfidy: the allegation that Russian soldiers were killed only after they deceived Ukrainian forces by pretending to surrender. 

The announcement of an investigation is a good first step. But Ukraine must avoid drawing conclusions before any investigation has taken place. It is important to avoid tunnel vision and allow an impartial probe to speak for itself. As former Human Rights Watch Director Kenneth Roth notes: “An investigation is needed… One Russian fired on his Ukrainian captors — possible perfidy — but that doesn’t justify executing other soldiers if they posed no immediate threat.”

With respect to alleged crimes committed by Ukrainian forces, Kyiv’s allies have a role to play. Rather than condemning Ukraine, they should encourage it to take responsibility and launch independent investigations. This encouragement can take multiple forms.

First and foremost, Kyiv’s international partners should clearly and unequivocally state that international criminal law and international humanitarian law applies to all parties of a conflict, not just some. This holds true even in severely asymmetrical contexts like that in Ukraine. 

Not all states have done this. The United Kingdom, France, Canada and others have been conspicuously silent on the subject. They might, however, consider the example of U.S. War Crimes Ambassador-at-Large Beth Van Schaack, a staunch supporter of accountability efforts in Ukraine. Van Shaack recently stated that “the laws of war apply to all parties equally: both the aggressor state and the defender state and this is in equal measure… [A]ll parties to the conflict must abide by international law or face the consequences.”

Second, states can offer to assist Ukraine in its investigations into any alleged crimes committed by the country’s armed forces. London, Ottawa, and Paris could send their investigators to help Ukraine examine allegations against its own troops. That would not only help in conducting the investigations, but could also offer credibility, burden-sharing, and impartiality to any probe. It might also help alleviate any pressure on political authorities in Ukraine to sweep allegations against the military under the rug.

Third, Ukraine’s allies should encourage Kyiv to finally ratify the Rome Statute of the International Criminal Court. Given the level of ICC activity in Ukraine, observers may be forgiven for not realizing that the country is not a member-state of the ICC. There are multiple reasons for this, but none good enough to justify remaining out of the Rome Statute system. Being a member of the Court could help galvanize and further genuine domestic accountability efforts. 

Finally, Ukraine’s allies should understand that investigating any alleged crimes is in Kyiv’s interest. Ukraine consistently presents itself as a state with international law on its side. By investigating and prosecuting its own alleged perpetrators, Ukraine can prove the point and show that it will not tolerate violations of international law no matter who commits them. 

As it stands, Russia has used allegations of Ukrainian war crimes to peddle vacuous justifications for its own atrocities. For example, when confronted with evidence of Russian war crimes, Moscow’s ambassador to the UK deflected by raising Amnesty International’s report alleging Ukrainian war crimes against Russian soldiers. Russia has also planned numerous show trials of Ukrainian POWs on trumped up charges. Ukraine can’t stop these cynical ploys, but it can undercut their influence on public opinion by independently and impartially investigating any allegations against its own troops.

Ukraine can and should be willing to address its own atrocities. Wayne Jordash, an international criminal lawyer who has been tasked with supporting Ukrainian war crimes investigations, has stated that Ukrainian legal authorities “are very careful to try and ensure a fair trial and there’s not a culture of vengeance. I see a determination to hold people to account in a way that is credible.” The opposite holds true of Moscow. 

Being on the side of international law and justice means accepting that all – and not just some – victims of atrocities deserve justice. Ukraine can prove this – and with help from its allies, it should.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Justice, Prisoners of War, Rome Statute, Russia, Ukraine, War crimes and tagged , , , , . Bookmark the permalink.

2 Responses to Ukraine can and should investigate its own military’s war crimes

  1. El Roam says:

    Important post these days.

    Speaking of asymmetrical war, some argue, greater than that:

    That Russia intends to destroy or exterminate Ukraine. Even genocide. As such, Ukraine in its war, is not bound by international and humanitarian law.

    It bears some sense. Bears Some legal justification one must admit (if factually correct).

    I would recommend that post hereby, in Lawfire:

    https://sites.duke.edu/lawfire/2022/10/09/law-and-the-killing-of-a-russian-propagandist-some-q-a/

    Concerning alleged genocide, here for example:

    https://www.reuters.com/world/europe/exclusive-ukraine-investigates-deportation-children-russia-possible-genocide-2022-06-03/

    Thanks

  2. When I hear the word genocide the photos and videos of the Nazi concentration camps fill my mind. Their policy was the eradication of specific groups: Jews, Gypsies, Socialists, Homosexuals and anyone disagreeing with Nazi doctrine. Is it a war crime to eradicate the Russian language spoken by a large portion of Ukraine? The eradication of the Russian Orthodox Church in Ukraine along with shutting down the media, poets, writers and killing Russian POW’s. Zelensky the comedian promised peace with Russia during his election campaign exactly what the people of Ukraine wanted. https://tinyurl.com/2q62pkcr Instead of peace he listened to promises by US-led NATO and the war began.

    How does genocide fit with Syria, Yemen, Vietnam, Iraq, Afghanistan, Palestine, Yugoslavia and 79 other nations where millions of lives were lost, millions more wounded and countries bombed to rubble? I’ve grown tired of the one-sided narrative due to my long years in broadcasting. Pushing this conflict to the front pages of the Canadian media has cost Canadians dearly as we deal with sky high inflation politicians would rather ignore. The massive sweep of increased poverty is just beginning too take it’s toll in Canada, while people talk of genocide in a country very few can find on a map. Here is a link to a two minute video from Max Blumenthal on Twitter https://tinyurl.com/2jt23otc

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