On Wednesday, the Organization for Security and Co-operation in Europe (OSCE) released a Report On Violations Of International Humanitarian And Human Rights Law, War Crimes And Crimes Against Humanity Committed In Ukraine Since 24 February 2022. The report was written by three experts appointed to a special Mission pursuant to the OSCE’s Moscow Mechanism. The report marks an important next step in a long road to a full understanding of the illegal and criminal acts committed and suffered in the ongoing armed conflict between Russia and Ukraine.
The Mission was not asked to examine the legality of the Russian invasion itself. Nevertheless, the report flatly states that “Russia is the aggressor and therefore responsible for all human suffering in Ukraine, whether or not it results from violations of IHL and even when it is directly caused by Ukraine, because even that would not have occurred if Ukraine had not to defend itself from the Russian invasion.” As its title suggests, the report focuses on possible violations of international humanitarian law and international human rights law, war crimes, and crimes against humanity.
The report is based on publicly available information, the horrific contents of which are familiar to us all. The experts were not able to travel to Ukraine, and Russia declined to meaningfully engage with them. But though circumstances prevented the Mission from presenting much new evidence, the report is striking for the facts that it pulls together and the legal analysis it provides.
The report covers a shocking range of apparent war crimes, from rape and torture to deportation and the use of human shields. The report also examines the impact of the conflict on vulnerable groups. It deserves to be widely and fully read, though it is often painful to do so. This essay touches on three aspects of the report: the conduct of hostilities, the law of occupation, and human rights law. In each of these areas, the Mission’s legal analysis points to ways in which ongoing or emerging debates in international law will likely intersect with accountability efforts in Ukraine.
The Conduct of Hostilities
The Mission announces a basic methodological choice on the first page of the report:
A detailed assessment of most allegations of International Humanitarian Law (IHL) violations and the identification of war crimes concerning particular incidents has not been possible. Nevertheless, the mission found clear patterns of IHL violations by the Russian forces in their conduct of hostilities. If they had respected their IHL obligations in terms of distinction, proportionality and precautions in attack and concerning specially protected objects such as hospitals, the number of civilians killed or injured would have remained much lower. Similarly, considerably fewer houses, hospitals, cultural properties, schools, multi-story residential buildings, water stations and electricity systems would have been damaged or destroyed.
As the report later explains, a detailed assessment of particular incidents would require particularized evidence of what attacking forces intended and knew, what alternative weapons and tactics they could have used but did not, and what military advantage they were trying to achieve. None of this information was available to the Mission. Instead, the Mission inferred patterns of violations from the sheer scale of death and destruction unleashed by Russian forces on civilians and civilian objects. These results could not be plausibly explained by mistake, technological limitations, or military necessity (see here, here, and here).
The report examines two specific attacks. It concludes that the Mar. 9 attack on the Mariupol Maternity House and Children’s Hospital, which killed three people and injured many others, “constitutes a clear violation of IHL and those responsible for it have committed a war crime.” Essentially, the report finds that Russia’s multiple, conflicting…
Read More: The OSCE Report on War Crimes in Ukraine: Key Takeaways