More than five months after Russia’s invasion began, Ukraine’s Prosecutor General’s Office claims to be investigating more than 26,000 alleged Russian war crimes. But it’s unclear to what extent Ukraine is probing any actions of its own armed forces that may have violated international laws or put civilians in harm’s way.
There is plenty of evidence linking Russian forces to atrocities and apparent war crimes in Ukraine, including mass killings, indiscriminate attacks, using rape as weapon of war, and the alleged forced deportations of hundreds of thousands of Ukrainians from their country.
Though the scale of Russia’s brutality in Ukraine is great, recent reports from Amnesty International, the Office of the United Nations High Commissioner for Human Rights (OHCHR) and Human Rights Watch — have also raised concerns about the conduct of Ukrainian forces. This includes the mistreatment of prisoners of war, extrajudicial punishment, and the use of residential areas for military operations, putting civilians directly in the line of fire.
On Thursday, Amnesty International’s Secretary General Agnès Callamard said there is “a pattern of Ukrainian forces putting civilians at risk” and “being in a defensive position” is not an exemption from following the rules of war.
Amnesty’s report caused the organization’s country director in Ukraine, Oksana Pokalchuk, to resign on Friday.
She said Amnesty unwittingly “created material that sounded like support for Russian narratives of the invasion. In an effort to protect civilians, this study became a tool of Russian propaganda.”
‘There’s never one fully clean side’
Despite controversies around recent reporting, human rights experts say it’s important for Ukraine to pursue any violations of international law from its forces for the sake of accountability — and to prevent Kyiv from giving Moscow fodder to justify its bloody invasion.
“Even in the most asymmetrical wars, there’s never one fully clean side,” said Mark Kersten, an assistant professor of criminology at the University of the Fraser Valley in B.C. and a senior consultant at the Wayamo Foundation, a German non-profit organization promoting justice for international crimes.
Though Kersten said Ukraine is undeniably the victim of Russian aggression, he told CBC it should take any “credible allegations” against its military and other armed factions seriously, if it wants to maintain its “moral upper ground with respect to international law.”
Both Russia and Ukraine are signatories to treaties that enshrine human rights in armed conflict and govern the rules of war. Among them are the Geneva Conventions of 1949, which establish standards for the humane treatment of civilians and prisoners of war.
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On the ground in Ukraine, prosecutors are collecting evidence of alleged war crimes against Russia. Their work comes as a Russian soldier pled guilty to killing an unarmed civilian in the first war crimes trial since Russia invaded Ukraine.
Protecting civilians while putting them at risk
Russian forces have been widely accused of violating international laws that oblige them to minimize civilian deaths. But regardless of whether their adversaries are following the rules of war, Ukrainian forces are also legally bound to limit harm to civilians, said Human Rights Watch (HRW) senior crisis and conflict researcher Belkis Wille.
In a report released in July, Human Rights Watch sounded the alarm about multiple incidents in which Ukrainian and Russian forces endangered civilians by establishing military operations in residential areas or public facilities such as schools or health centres without taking appropriate steps to protect civilians or move them to safety.
One incident involving Ukrainian forces probed by HRW took place in the village of Yakovlivka. The report, which Wille authored, detailed how fighters arrived shortly after Russia invaded the country and set up in a schoolhouse. Days later, an attack on the area killed four civilians and wounded 10 others.
OHCHR also warned about military operations set up in civilian facilities, and the potential use of human shields. Its report, released in June, placed blame on both Russia and Ukraine for an attack on a nursing home in the Luhansk region, in the first weeks of the conflict. Dozens of “vulnerable civilians” are believed to have been killed after Ukrainian forces set up inside the strategically located facility. Staff and residents were not moved to safety before Russian-affiliated forces attacked, OHCHR reported.
“If armed forces are in the area, of course that means the area becomes at risk of targeting,” said Wille. “Where Ukrainian armed forces are based, that is a legitimate military target for the Russian side.”
She told CBC News there were instances in which residents in some areas welcomed Ukrainian forces’ presence because they wanted protection from invading Russian forces, but she explained that is “sort of irrelevant to the law” because of the obligation to remove civilians from those areas.
Determining responsibility complicated
The OHCHR report identified multiple other concerns about the conduct of armed forces on both sides including:
- Ukraine and Russia both using cluster munitions that can indiscriminately kill or injure civilians.
- Widespread use of extrajudicial punishment.
- Allegations of conflict-related sexual violence.
- The treatment of prisoners of war as well as torture and summary executions.
Wille said a complicating factor in examining whether any Ukrainian fighters are responsible for violating international law is that there are a number of different uniformed factions beyond the Ukrainian military. Many fighters may not have formal training.
The Territorial Defence Force is a branch of the military, but made up of former active-duty soldiers and civilian volunteers. The Azov Battalion was formed in 2014 as a far-right militia that was eventually brought under Ukraine’s National Guard. Another group known as the Kraken Regiment, which formed at the start of the war and is associated with Azov, is also largely volunteer. Ukraine has also opened its doors to some foreign fighters.
Wille said these “newly constituted fighting groups” are in a “grey area,” without a clear command structure, and abuses could go “completely unchecked.”
“We have no idea what kind of training they’re getting in the principles of the laws of war and the extent to which, if they violated the laws of war, there would be a robust enough system to investigate those potential abuses and to hold them accountable,” she said.
Not all fighters are acting on orders when they carry out suspected human rights violations, Kersten explained.
“Whilst I don’t think people should blame these things on bad apples, you will always have bad apples who commit, you know, individual war crimes outside of the command structure of the military,” he said.
LISTEN | Enormous effort to collect evidence of alleged Russian war crimes:
Front Burner24:42Collecting evidence of war crimes in Ukraine
An enormous effort is underway to gather evidence of alleged war crimes by Russian forces in Ukraine. Investigators from the International Criminal Court, Amnesty International and Human Rights Watch are on the ground, collecting accounts of extrajudicial killings, forced disappearances and torture, among other abuses. Today, Belkis Wille, senior researcher at Human Rights Watch, talks about what she and her team have found so far, and why she believes it’s important that “people around the world, those in power, but also citizens of Russia, can actually read about what this war looks like and what abuses are being perpetrated.” WARNING: This episode contains graphic content and may affect those who have experienced sexual violence or know someone affected by it.
Why accountability is important for Ukraine
Ukrainian President Volodomyr Zelenskyy furiously denounced Amnesty International’s report released Thursday, accusing the organization of trying to “shift the responsibility from the aggressor to the victim.”
“If you provide manipulative reports,” Zelenskyy said in his nightly video address, “then you share the responsibility for the death of people with them.”
Asked by the Reuters news agency about the controversies over its latest report, and the resignation of its country director in Ukraine, Amnesty on Saturday said it was preparing a further statement.
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CBC News reached out to Ukraine’s Prosecutor General’s Office to inquire about any investigations into potential violations of international law by Ukrainian fighters. A response was not received by the time of publication.
Global Affairs Canada would not say if Canadian officials have pressed Ukraine to investigate claims its forces have broken international law. It said Canada is “unwavering” in its support for Ukraine against Russia’s aggression and aims to “ensure that all those complicit in these atrocious crimes and illegal war are held accountable.”
Even though it’s unlikely Russia will investigate its own atrocities, Kersten from the University of the Fraser Valley said it’s “in Ukraine’s best interest” to investigate potential violations by its forces — for the sake of what happens when the conflict ends.
“It’s harder to live side by side [after the war] when you know that in the other person’s community there are perpetrators who have not been held to account in any meaningful way, that there hasn’t even been acknowledgement that there was wrongdoing.”