Statement by the Members of the Independent International Commission of Inquiry on Ukraine to the United Nations Security Council Arria-Formula Meeting, New York

United Nations Human Rights Council

Delivered by: Erik Møse, Chair of the Commission; Vrinda Grover, Commissioner; Pablo de Greiff, Commissioner

When the Commission of Inquiry, shortly after its establishment, participated in an Arria formula meeting on 27 April 2022, our investigations had not yet begun. But already at that stage, we seized the occasion to stress our independence.

Since then, the Commission’s investigations have, in addition to oral updates to the Human Rights Council, resulted in four written reports: first to the General Assembly in October 2022; the comprehensive report to the Council in March this year; the conference room paper (170 pages) at the end of August; and our last report to the General Assembly, submitted last week.

These reports, based on numerous missions to Ukraine and other evidence, show that the Russian authorities have committed a wide range of violations, many of which amount to war crimes. They include wilful killings, attacks on civilians, unlawful confinement, torture, rape and sexual violence, as well as forced transfers and deportations of children.

Other violations are the use of explosive weapons in populated areas, including indiscriminate and disproportionate attacks, as well as waves of attacks against energy related infrastructure.

We have also found a small number of violations by the Ukranian authorities. They include two incidents that qualify as war crimes; three cases of violations of human rights against persons accused of collaboration with the Russian authorities, and a few likely indiscriminate attacks.

In this brief introduction, we will highlight some topics, instead of discussing all violations and crimes, which have already been shared with the Member States. The participants at this meeting may of course raise any other issue mentioned in our reports.

Let me start with two issues:

First, our recent investigations have reinforced the previous findings that the Russian authorities’ use of torture in detention facilities situated in Ukraine and the Russian Federation have been widespread and systematic. Perpetrators mainly tortured persons whom they considered supportive of the Ukrainian authorities. Beatings and electric shocks occurred frequently. Other methods were also used.

Second, the Commission has already expressed concern at the impact on civilians of the large-scale waves of attacks on energy infrastructure, launched by Russian armed forces from 10 October 2022. We are currently examining in more detail the impact of these attacks on the civilian population.

Regarding both the use of torture and the attacks on energy-related infrastructure we are continuing our investigations to see whether they amount to crimes against humanity.

Now, a few remarks about criminal accountability of perpetrators.

Based on the Commission’s findings, we have recommended that the Russian Federation should ensure that all perpetrators, particularly commanders and other superiors, and those who have ordered the commission of international crimes, are held accountable in accordance with international human rights standards. The Russian Federation should also take necessary measures to prevent such violations and crimes, in particular through unequivocal instructions and training to all branches of the armed forces and other entities participating in the armed conflict.

With respect to Ukraine, we note the enormous caseload of the Prosecutor General’s office relating to alleged crimes and violations by the Russian authorities. The Commission is awaiting the finalization of the prosecutorial strategy. It also reiterates the importance of investigating cases involving alleged Ukrainian perpetrators.

Vrinda Grover, Commissioner

The violations and crimes just mentioned have many devastating consequences for the civilian population.

In my presentation today I will focus on two vulnerable groups, namely women and children.

The ongoing armed conflict has particularly impacted women in a differentiated and egregious manner. The Commission’s ongoing investigations have found that rape, sexual violence and forced nudity were perpetrated by Russian authorities in many situations of house searches, check points and detention centres. Our recent investigations show that victims of rape and sexual violence by Russian soldiers range from a 16-year-old pregnant girl to women aged 19 to 83 years. Some were subjected to repeated rapes, and some were gang raped. The victims and their family members were also subjected to torture, and at times unlawful killings. The Commission’s investigations concluded that Russian authorities have committed war crimes of rape and other sexual violence.

While securing judicial accountability for these crimes, the relevant authorities have a responsibility to ensure that the legal process does not cause retraumatization to the victims and safeguards their dignity.

These crimes and violations have left the victims and survivors deeply physically and psychologically traumatized. The Commission has therefore repeatedly emphasized the importance of making provision for suitable services to address the mental health and psychosocial needs of these victims. We urge the national and international authorities to prioritize allocating resources for the same.

Such support to victims of sexual violence will also strengthen their ability to navigate the pathways of criminal judicial accountability in different jurisdictions.

The continuing armed conflict affects and harms children in multiple ways. The Commission is deeply concerned about the situations of forced transfer and deportation of children by the Russian authorities within Ukraine and to the Russian Federation.

Investigation in this area however faces some challenges. For one, there is a significant discrepancy in the information regarding the number of children transferred or deported, publicized by Ukraine and the Russian Federation. Further, there is lack of clarity and transparency on the circumstances and categories of children transferred. Also, the Commission has no access to the Russian Federation or to areas under its control and it has received no cooperation from the Russian authorities. Nonetheless, in its latest report, the Commission found that the transfer of 31 children from Ukraine to the Russian Federation is an unlawful deportation and constitutes a war crime.

In the Commission’s view, insufficient and unclear knowledge about the precise numbers is not only affecting investigations but also the process of identification and return of children. Presently, the return of some children has mainly been secured through individual efforts by families undertaking arduous and risky travels.

The Commission encourages both parties to provide specific information to the Commission and to specialized agencies. For the expeditious and safe return of all children the Commission has recommended that a mechanism with verified information be established with relevant stakeholders. The Commission has also suggested that to ensure the identification and recovery of very young children a DNA registry be established by Ukraine to support future efforts.

Pablo de Greiff, Commissioner

Consistent with existing international legal obligations, victims have rights to justice, truth, reparation, and guarantees of non-recurrence. Hence the Commission has consistently promoted a broad notion of accountability. Here I will make a few points concerning its non-judicial aspects.

The first point to be made is that while the conflict is on-going, it will be difficult to establish full-fledged programs on truth, reparations, or non-recurrence. Some of these call for the cooperation of the Russian Federation, for example in the domain of truth; some of them are the object of obligation on the part of the aggressor state, such as reparations.

Having said this, there are preliminary steps that can be taken by the Ukrainian authorities that will both partially satisfy the rights of victims, and mitigate some of the worst consequences of the conflict.

A basic step consists of the establishment of a unified victims’ registry. This should not be conceived merely as a list of names, although the collection of information about the demographics and other socio-economic factors of victims will be crucial in the design of a reparations program. A victims’ registry should be properly conceived as a coordinating mechanism to facilitate the victims’ access to services that the government is already providing or that it should provide. Hence, the registry is a sort of ‘one-stop center’ that spares victims bureaucratic hurdles that under the circumstances some of them consider insurmountable.[1]

The Registry would serve all victims of a predetermined list of violations of international humanitarian law and international human rights law, as well as other crimes. The centralization of information about the victims will serve truth-telling purposes, even in an incipient manner, and can also contribute to the initial steps of an administrative (non-judicial) reparation program. While it may be impossible to address all of the needs of all victims at once, only a unified registry allows for the reasonable prioritization in the design and the distribution of benefits.[2]

The Commission has of course followed with interest the adoption by the General Assembly of the Resolution on the Register of Damages and the subsequent resolution of the Council of Europe institutionalizing that Register. We are supportive of these initiatives but add that neither resolution explicitly distinguishes between national reconstruction programs, property restitution or repair initiatives (which Ukraine had already initiated), and comprehensive victims reparations programs, initiatives that partially overlap with one another but which are distinct and therefore require both differentiation and coordination.

Finally, as Vrinda mentioned before, the Commission has insisted on the urgency of providing to victims and others in need, mental health and psychosocial support (MHPSS). The Commission is well aware of the creation of an interministerial task force on this topic and calls on the international community to support efforts leading to the provision of this type of support on the basis of internationally accepted standards of care. In the end, there are of course links between the judicial and non-judicial dimensions of accountability. The issue of MHPSS is a perfect illustration of such links. The more support is offered to victims, the more willing they are to participate in judicial proceedings. The international call for accountability for perpetrators, which we emphatically support, should not lead, however, to treating victims solely as sources of evidence and testimony. In this conflict as in all others, the victims’ rights to justice, but also to truth, reparation, and non-recurrence, should be satisfied, without weakening in any way the ultimate obligations of the aggressor state.

[1] The unified registry would thus extend and complement the ‘register of persons missing under special circumstances, launched in May 2023 by the Ministry of Internal Affairs and the Commissioner for Missing Persons, to collect and centralize data on missing persons (around 25,000 in mid-2023 according to the Ministry of Internal Affairs). The unified registry mentioned here would have broader functions and serve a wider constituency.

[2] For example, wo draft bills under consideration by the Ukranian Parliament would prioritize the provision of urgent interim reparations to victims of conflict-related sexual violence.

Ukrainian version