One of the reactions of the international community to the full-scale invasion of Russia was the creation of the United Nations Independent International Commission of Inquiry on Ukraine, supported by the majority of the Human Rights Council in early March. The Commission aims to investigate alleged violations of human rights and humanitarian law in the context of Russian aggression against our country. Its report will serve as an official UN document.
In October, the Commission presented a report to the UN General Assembly, recording numerous Russia's crimes in Kyiv, Chernihiv, Sumy, and Kharkiv regions in February and March. At the beginning of December, its members made their tenth visit to Ukraine, which focused, among other things, on Russian missile attacks on civilian infrastructure.
About the work of the Commission and the results of its visit to Ukraine, Ukrinform spoke with one of its three members Jasminka Džumhur, who also holds the position of the Human Rights Commissioner of Bosnia and Herzegovina.
- In October, the Commission presented the report about numerous war crimes, violations of humanitarian law, and international law. It concerned only the north of Ukraine and the first two months of aggression against Ukraine. How far has your team progressed as of today?
- The Commission of Inquiry on Ukraine was established based on the Resolution of the Human Rights Council in March this year, and according to the second resolution in May, the Council was asked to focus on the events in the areas of the Kyiv, Chernihiv, Kharkiv and Sumy regions in late February and in March 2022. This means that in some way, at the beginning of our mandate our priority was to conduct investigations into human rights violations, violations of humanitarian law, and other related crimes based on the March resolution. And therefore, our first report submitted to the General Assembly of the UN was predominantly focused on those four regions.
- But your mandate isn’t limited only by these regions.
- Definitely not. As I said, as defined by the resolution in March, our mandate is very broad and, therefore, in our first report, we gave observations and findings related primarily to those four regions. But, as you know, our final report will be submitted to the Human Rights Council in March next year, and that report will be a comprehensive report on all our findings related to violations of humanitarian law and human rights violations, and other related crimes.
- Should we expect a report like the one published in October?
- Definitely. You know that last week we, the Commissioners, completed another trip in Ukraine. During that mission, we visited Odesa. We particularly focused on crimes related to the Kherson region, and we visited Kyiv. At the press conference towards the end of our visit, we came out with some preliminary observations related to our mission. At the same time, our investigators are also conducting investigations, which means all the information that we have collected and that will be collected in the next two months, will be included in the comprehensive report to be released in March.
SINCE OCTOBER THE MAIN TARGET OF THE ATTACKS WAS INFRASTRUCTURE, WHICH HAS AN INDIRECT IMPACT ON THE ENJOYMENT OF RIGHTS IN ALL SPHERES
- Your last week was focused mainly on the bombardment of civilian infrastructure – energy and transport infrastructure. Will it also be the task for the next two months?
- Our mission to Ukraine did not prioritize tasks and we collected evidence for all types of crimes, including violations towards personal integrity, also crimes related to the destruction of infrastructure and so on. These developments bring our focus to some particular issues, having in mind that since October the main target of the attacks was infrastructure, which has an indirect impact on the life of all population and the enjoyment of their rights in all spheres. Therefore, we collected evidence related to that and therefore one part of our presentation during the press conference was exactly related to the finding with regard to such attacks and their consequences.
- Is it possible to speak about, based on your findings so far, on the logic behind the terror of missile strikes and Russian propaganda, can we speak about a paradigm shift from “indiscriminate attacks”, as stated in your report covering the first months of the war, to targeted strikes on Ukraine’s critical infrastructure?
- When we speak about such attacks, we should not forget that they have multiple dimensions, which means that when you assess their impact, all elements should be taken into consideration, including security and military aspects. Therefore, it is clear that I can’t come out with a conclusion and give you an immediate answer to that. It will definitely be in our report because we are analyzing all those aspects and the impact of such attacks based on the received information. What we can say at the moment is that what we saw and what can be confirmed has a serious impact on the life of people.
When we, for example, speak about children - on top of those attacks toward personal integrity, what also worsens their life - there is an additional deterioration of the enjoyment of their right to education not only because of the physical destruction of schools, but also because they are not able to attend schools online due to the destruction of infrastructure, including the electricity system, which prevents them from being able to use this method of education.
On the other side, when we speak, for example, about access to healthcare, part of the population has less access because of the destruction of transport infrastructure if, for example, they live far from medical facilities. It is particularly problematic for people with a chronic disease or those with a need for urgent medical assistance.
I can give many other examples of how the destruction of infrastructure can impact the lives of people. This becomes a particularly serious issue when such situation happens in winter as attacks have an impact on both electricity and the heating system, which seriously affects the life of people.
Children deserve a better life, and they are suffering. There is a serious concern about future generations. I would like to stress the issue of influence on the mental health of people, another issue mentioned during our press conference. We recognize the importance of drawing attention to how long periods of suffering can have serious negative impact on the mental health of populations. Therefore, it is very important to establish programs to support people with a particular focus on those in vulnerable situations, namely children, with a focus on women who suffered sexual violence in the conflict and elderly. This should be one of the priorities when we speak about the human rights dimension.
WE STILL HAVE A PROBLEM OF GETTING PROPER ACCESS TO THE INFORMATION FROM TEMPORARILY OCCUPIED TERRITORIES
- I want to broaden our geography and ask how you get data on violations in Mariupol, Melitopol, Severodonetks, and other places that Russia has recently occupied. Has Russia’s attitude toward the Commission changed?
- The resolution gives us an obligation to communicate with all sides who are in possession of the information related to violations, which includes communication with both sides involved in the conflict. We have established cooperation and communication with the authorities of Ukraine on different issues and different aspects. At the same time, we have tried but failed to establish such cooperation with Russian authorities. Such cooperation is important as it is in the global interest to find out truth about what has happened. But when we speak about the information from temporarily occupied territories, it is very difficult to collect evidence, because we don’t have access to that territory. Other organizations are also in the same situation.
However, related to your question about Mariupol, we are able to get information from other different sources. It is very important to note that we always try to get a first-hand information, which means directly interviewing survivors, and witnesses, as well as using other types of evidence such as video materials or documentations, photo images. We are trying to do our best under the circumstances, but to be honest, when we speak about temporarily occupied territories in the Donetsk and Luhansk regions, we still have a problem of getting proper access to the information there.
- Does the Commission conduct investigations in the territories occupied since 2014, like parts of the Donetsk and Lugansk regions and Crimea?
- Yes, as we said, our mandate covers the entire territory of Ukraine, and we also conduct investigations on territories of other states, if we believe that we we can get evidence and other material related to the conflict in Ukraine.
WE SPEAK WITH UKRAINIAN REFUGEES ABROAD BECAUSE MANY OF THEM ARE SURVIVORS AND WITNESSES OF VIOLATIONS
- Do you use data that the Ukrainian authorities provide to you about those territories? And also, can you explain how you verify evidence and data?
- There are several channels through which we receive the information - open sources are one of them, and we use that initial pattern to start an investigation. We also use information from other partners, including state parties affected by the conflict, UN agencies, civil society groups, international organizations, and other state parties, because we should not forget that a large number of Ukrainian refugees are now in other countries and for us, the cooperation with all those who can provide us with information is very important.
But in the end, to come out with a conclusion on a violation, we always get it confirmed by more than one source and from different sources.
- So, you also talk with Ukrainian refugees abroad?
- Yes, we speak with them because many of them are survivors and witnesses of violations that might have been committed on the territory of Ukraine. In fact, recently the Commission’s investigators visited Estonia and Georgia to speak with Ukrainian refugees living there.
OUR REPORT SHOULD DEFINITELY PROVIDE INFORMATION ON VIOLATIONS AND RECOMMENDATIONS
- What will the Commission present in its comprehensive report due in March next year?
- Our report should definitely provide information on all tasks dedicated to us by the resolution, which means that we should submit information on violations of international humanitarian law that includes violations related to war because the humanitarian law is directly related to it. The second part is violations related to human rights and other types of violations. We will present information on violations toward personal integrity, which means information on killings, torture, ill-treatment, sexual violence related to the conflict, violations against particular groups – children, elderly – the impact of the war on the enjoyment of rights such as economic and social rights, education.
There is also a question related to the impact on the environment because the use of different weapons on such a scale in a short period has a serious impact on nature, and its wider implications on climate change can also be looked into.
When we speak about children, there is a question of the transfer of children from the territory of Ukraine to the territory of Russia.
One key question, which is essential not only for the Commission but for the entire international community is the issue of accountability. As we are aware, there is a big focus on criminal accountability, which is important in bringing alleged perpetrators to justice. Many of them are out of the territory of Ukraine, but they can still be put on trial in absentia.
At the same time, we shouldn’t forget the importance of another type of accountability – non-judicial. This is important when we talk about victims. As we said in our report, the Commission takes a victim-centred approach and follows the “do-no-harm” principle in working with victims and witnesses. But we are now trying to raise the question of how it is important to provide support to them and restore their dignity. Reparation of their rights is not only the issue of compensation. It has a broader meaning of reparation of their rights, which also includes the issue of property because of damages, guarantees of non-repetition of such violations, and finally, there is a question of compensation.
In addition, victims must be recognized and, therefore, we are raising the question of establishing a registry of victims. In our report, we will come out with recommendations and it is, in the end, our main task based on the resolution.
Based on the information that we had received and as much as it was possible, we have presented in the [October] report information about those who are responsible for violations that happened on the territory of Ukraine. Yet, we must be sure that to complete the task, we should be in possession of information and have all access to the whole territory. We shouldn’t forget that our mandate is now in the tenth month, but these months also include the period of setting up the Secretariat and creating a possibility to do a real job in the area of our mandate.
But in the end, to come out with a conclusion on a violation, we always insist on confirming the initial allegation made by someone by different types of sources.
- Did you discuss with Ukrainian officials the Commission’s its proposal of establishing a registry centre for victims?
- There are several issues that we discussed with the authorities. What has been recognized is the importance of coordination and the consultation process. I always say "Two Ps" – participation and partnership – that is that the government in any situation should ensure the participation of those who are particularly affected by a particular situation, which means in concrete cases that if there will be a development of any policy related to victims and witnesses, they should be involved in that. The second P – partnership – is, first of all, among different institutions because victims always ask for a multidisciplinary approach, and in addition to that there is partnership with civil society that includes a broader meaning. It is not only non-governmental organizations but also academia, media, and other different actors.
Through our coordination with the Office of the ICC Prosecutor and in communication with the Prosecutor General of Ukraine we really try to do our best
THROUGH OUR COORDINATION WITH THE OFFICE OF THE ICC PROSECUTOR AND IN COMMUNICATION WITH THE PROSECUTOR GENERAL OF UKRAINE WE REALLY TRY TO DO OUR BEST
- Returning to accountability. Can the report of the Commission be used by the International Criminal Court? Is it compatible with its standards? Or, maybe, can it be used with the International Tribunal that Ukraine advocates for?
- We stated several times that it is essential to establish coordination among different mechanisms. Also, in our approach, we have made efforts to establish as much as possible coordination at the level of the Commissioners and heads of institutions. Through our coordination with the Office of the ICC Prosecutor and in communication with the Prosecutor General of Ukraine we really try to do our best to assure that.
However, when we speak about how much our report can be used by other actors, there is no doubt that some information from our report will be useful for many actors. Yet, I would like to conclude that there is no overlapping in our mandates. There is a big level of complementarity between our mandate and the mandate of others. We must be clear: we are not a judiciary body and therefore, we don’t use the same tools. Our mandates are different, and we are not in competition with others.
Your final report is due next March. Given that it is unlikely that the war will end before your mandate expires, do you see political will of the international community to see the Commission to continue its work after that?
We, as Commissioners, really have tried to execute our mandate in the best way, following both resolutions. But the decision of the extension of our mandate is up to the Human Rights Council and the member- states.
- Can the evidence collected by the Commission so far be an indication that violations by the Russian side are systematic? Is Russia war against Ukraine and Ukrainians a genocide?
- This question is always difficult, particularly because people who are experiencing suffering ask for justice and accountability. For them, it is very difficult to understand the distinction between different types of criminal acts. That distinction between criminal acts is visible only in the law. For example, when we speak about the distinction between a war crime, crime against humanity and genocide – these three types of crimes have different elements. If those elements aren’t present, you can’t confirm that such type of a violation was committed.
It will be good to discuss that issue with the national legal authorities. It is very important to create an understanding of the differences between these three types of criminal acts so that people understand what the elements of these criminal acts are. My suggestion is to pose the question to the Prosecutor General of Ukraine, the judiciary, and other authorities so that people know what the constitutive elements of such crimes are.
Based on the current evidence we have collected, we concluded in our report to the UN General Assembly in October that war crimes, violations of human rights and international humanitarian law have been committed in Ukraine and that Russian armed forces are responsible for the vast majority of the violations identified.
And in that report, based on the evidence that we have, we could not come to the conclusion that it is genocide.
Ivan Kosiakin, Kyiv