- What international humanitarian law and human rights violations have been committed in Ukraine since Russia commenced a full-scale military invasion of the country in February 2022?
- Who can be held responsible for violations of international humanitarian law?
- Who is primarily responsible for ensuring accountability for serious international crimes?
- Have Russian officials prosecuted any individuals for serious crimes under international law in Ukraine?
- Have Ukrainian officials prosecuted any individuals for serious crimes in Ukraine?
- What support is the Ukrainian criminal justice system receiving to carry out investigations and prosecutions domestically?
- Is Ukraine a member of the International Criminal Court?
- When did the ICC prosecutor open an investigation into the situation in Ukraine?
- Since Russia is not an ICC member country, how is it that the ICC prosecutor investigates allegations against Russian nationals for crimes committed in Ukraine?
- How are ICC arrest warrants enforced?
- Aren’t heads of state immune from prosecution?
- Will the ICC prosecutor bring additional cases in the investigation in Ukraine?
- Does the ICC override national authorities in carrying out investigations and prosecutions?
- How have governments reacted to the ICC arrest warrants against Putin and Lvova-Belova?
- How has the ICC prosecutor’s decision to open a Ukraine investigation impacted the resources available to the court?
- Can judicial officials in other countries investigate and prosecute international crimes committed in Ukraine?
- Have judicial officials in other countries opened any investigations into serious crimes in Ukraine?
- What other international initiatives exist to contribute to criminal justice efforts in Ukraine?
- Does Human Rights Watch support the establishment of a tribunal on the crime of aggression?
- Would pursuing justice through the ICC or nationally be an obstacle to any peace deal?
- What does the unprecedented commitment to accountability for crimes in Ukraine mean for other situations where civilians suffer?
On March 17, 2023, International Criminal Court (ICC) judges issued arrest warrants against Vladimir Putin, president of Russia, and Maria Lvova-Belova, commissioner for children’s rights in the Russian president’s office.
The arrest warrants stem from an ICC investigation opened by the court’s prosecutor in March 2022 following a request to do so by a group of ICC member countries. By issuing the arrest warrants, the ICC judges indicated that they were satisfied that there were “reasonable grounds to believe” that these individuals had committed crimes within the jurisdiction of the court, namely, the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to Russia. According to a video statement by the court’s president, the content of the arrest warrants remains confidential to protect victims and witnesses.
In addition to the ICC prosecutor’s investigation, Ukrainian judicial authorities are also conducting their own criminal investigations, backed by evidentiary, technical, and operational assistance provided by other governments. Judicial authorities in other countries have also opened criminal investigations related to serious crimes committed in Ukraine. Domestic and international civil society groups have meanwhile been vigorously working to document violations as they occur.
The following questions-and-answers document provides further information regarding aspects of the justice response to the Russia-Ukraine war.
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What international humanitarian law and human rights violations have been committed in Ukraine since Russia commenced a full-scale military invasion of the country in February 2022?
Russia’s full-scale invasion of Ukraine on February 24, 2022, and the ensuing war has had a disastrous impact on civilians, civilian property, and energy infrastructure. Russian forces have committed many violations of international humanitarian law, including indiscriminate and disproportionate bombing and shelling in civilian areas. Such attacks have destroyed and severely damaged homes, businesses, schools, health care institutions, and other facilities. Many, including the strike on the Kramatorsk train station, the bombing of the drama theater in Mariupol, the attack that hit a shopping center in Kremenchuk, the bombing of a residential area of Chernihiv and airstrikes and artillery shelling of populated areas of Kharkiv should be investigated as war crimes – that is the deliberate or reckless commission of a serious violation of the laws of war. Russian forces also repeatedly targeted energy infrastructure, leaving millions of civilians periodically without electricity, water, and heat as winter temperatures plunged; attacks that also should be investigated as potential war crimes, including for their possible classification as attacks intended to instill terror among civilians.
Russian forces have used explosive weapons with wide area effects in many of the attacks in civilian areas, including cluster munitions, unguided aerial bombs, and guided missiles. According to the International Commission of Inquiry on Ukraine, established by the UN Human Rights Council (UNHRC), Ukrainian forces used cluster munitions against areas under Russian control in Izium, in the Kharkivska region.
The use of banned antipersonnel landmines in Ukraine has been extensive. Russian forces have used antipersonnel mines in multiple areas across Ukraine, including victim-activated booby traps. Human Rights Watch published three reports documenting Russian forces’ use of antipersonnel landmines in Ukraine in 2022. According to Human Rights Watch research, Ukrainian forces appear to have extensively scattered landmines around the Izium area, causing civilian casualties and posing an ongoing risk. Ukraine has committed to study these findings.
In areas they occupied, Russian or Russian-affiliated forces committed apparent war crimes and potential crimes against humanity including torture, summary executions, sexual violence, enforced disappearances, and the pillage of art and cultural artifacts. Civilians who attempted to flee areas of fighting faced terrifying ordeals and numerous obstacles; in some cases, Russian forces forcibly transferred significant numbers of Ukrainian civilians to Russia or Russian-occupied areas of Ukraine, which is a war crime. Civilians were also subjected to abusive security screenings known as “filtration,” during which officials collected extensive sensitive personal information including biometric data.
Human Rights Watch and UN monitors have documented killings and torture of prisoners of war held by Russian forces, including torture leading to death. Evidence has also been documented of Ukrainian forces violating the laws of war by mistreatment and apparent summary executions of prisoners of war, which would constitute war crimes.
Serious violations of international humanitarian law committed with criminal intent—that is, deliberately or recklessly—are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the International Criminal Court statute and other sources, include a wide array of offenses—deliberate, indiscriminate, and disproportionate attacks harming civilians; hostage taking; using human shields; imposing collective punishment; murder; torture; and rape, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.
Responsibility also may fall on people planning or instigating a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.
Ensuring justice for serious violations is, in the first instance, the responsibility of the state whose nationals are implicated in the violations. Governments have an obligation to investigate serious violations that implicate their officials or other people under their jurisdiction. The government must ensure impartial investigations into whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds. While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.
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Have Russian officials prosecuted any individuals for serious crimes under international law in Ukraine?
Human Rights Watch is not aware of any criminal proceedings in Russia against Russian nationals for serious crimes committed in Ukraine.
In December 2022, Russia’s lower house of parliament adopted a bill that would provide effective immunity for certain crimes committed in occupied areas of Ukraine, in violation of Russia’s international legal obligations.
The bill, which the State Duma adopted unanimously in its first reading on December 13, 2022, seeks to impose the Russian criminal code and code of criminal procedure in Russia-occupied areas of Donetska, Luhanska, Zaporizka, and Khersonska regions. It mandates dropping criminal cases and overturning convictions against those who committed crimes prior to September 30 while acting “in the interests of the Russian Federation” in those regions. These crimes would presumably include war crimes and grave human rights abuses and would cover Russian officials and their proxies. The bill will become law pending adoption by the Federation Council, the parliament’s upper chamber, and President Vladimir Putin’s signature.
The bill, if enacted, violates Russia’s obligations under international humanitarian law and international human rights law. Article 64 of the Fourth Geneva Convention provides that in situations of occupation, the penal law and other local laws with rare exception remain in effect. Imposing Russia’s criminal code and code of criminal procedure in occupied areas of Ukraine is unlawful. Russia also has an obligation under international humanitarian law to investigate and prosecute alleged war crimes by its forces or which were committed on the territory it controls.
Human Rights Watch is not aware of any criminal proceedings in Ukraine against Ukrainian nationals for serious war-related crimes committed in Ukraine since Russia’s full-scale invasion of the country.
As of February 7, 2023, Ukraine’s prosecutor general reported that 260 Russian military personnel were under investigation for war crimes committed since Russia’s full-scale invasion. Of these, 92 individuals had been indicted. At least 20 Russian military personnel have been convicted in Ukrainian courts of war crimes committed since February 2022. Human Rights Watch reviewed the court files for 19 of these individuals, which indicated that ten of the defendants were in custody at the time of their trial. At least one of the ten was returned to Russia after his conviction as part of a prisoner exchange. The other nine were tried in absentia.
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What support is the Ukrainian criminal justice system receiving to carry out investigations and prosecutions domestically?
There has been an unprecedented outpouring of support for accountability efforts related to the conflict in Ukraine, including multiple initiatives to support and assist the Office of the Prosecutor General of Ukraine in its investigations and prosecutions. Some of the key initiatives are detailed below. Certain types of assistance pre-dated the 2022 expansion of the conflict.
The European Union, the United States, and the United Kingdom established the Atrocity Crimes Advisory Group (ACA) in May 2022 to support the prosecutor general’s office in its investigation and prosecution of conflict-related crimes. The two main envisioned components of the ACA include: 1) an advisory group to the prosecutor general’s office, made up of experienced senior war crimes prosecutors, investigators, and other specialists based in the region, which provides expertise, mentoring, advice, including on investigative and prosecutorial strategies, and operational support, and 2) “mobile justice teams” composed of both international and Ukrainian experts, which can be deployed at the request of the prosecutor general’s office to assist Ukraine’s investigators on the ground.
The EU Advisory Mission for Civilian Security Sector Reform in Ukraine was first created in 2014 to support Ukraine’s reform of the security sector. However, in response to Russia’s full-scale invasion the advisory mission shifted its focus to supporting the prosecutor general’s office.
Numerous countries have offered a range of financial, expert, and capacity building assistance to Ukrainian authorities, including a UK-sponsored training program for Ukrainian judges and support from UK experts on conflict-related sexual violence; a US-established “Conflict Observatory” to collect and analyze open-source information; and the secondment of national forensic experts and donations of forensic equipment.
Similarly, numerous Ukrainian civil society organizations are documenting war crimes and working closely with the prosecutor general’s office, including by sharing information and conducting joint visits to regions where alleged crimes are to be investigated.
Ukraine is not a member of the ICC, but it accepted the court’s jurisdiction over alleged crimes committed on its territory since November 2013 through two declarations, and in doing so, the obligation to cooperate with the court.
Although Ukraine signed the Rome Statute, the court’s founding treaty, in 2000, it has yet to ratify it. In 2016, Ukraine amended its constitution to pave the way to ratification. On June 30, 2019, the amendment to article 124 of Ukraine’s constitution came into force recognizing the ICC’s jurisdiction and removing the final obstacle to Ukraine’s ratification of the Rome Statute. Ukraine also committed to secure Rome Statute ratification and implementation of the treaty into national law as part of the European Union-Ukraine Association Agreement. However, no further concrete steps toward ratification have been taken to date.
Because Ukraine has not ratified the Rome Statute, it is not able to exercise the full rights of membership to the ICC’s governing body, the Assembly of States Parties. The Assembly takes decisions on a large number of issues central to the functioning and success of the court and the Rome Statute system, including related to the court’s budget and the election of key ICC officials.
The ICC prosecutor opened an investigation into the situation in Ukraine on March 2, 2022. His decision came after a group of ICC member countries referred the situation in Ukraine to his office for investigation earlier the same day. Lithuania had made a separate referral to the ICC prosecutor’s office on February 28. Several additional states parties have since joined the state referral bringing the total number of states to 43.
At this publication, since opening the Ukraine investigation, the ICC prosecutor said his office has deployed 42 investigators, forensic experts, and support personnel to the country to investigate crimes within the court’s jurisdiction and has himself visited the country on four different occasions. Ukrainian authorities and the ICC signed an agreement on March 23, 2023 to support the opening of an ICC office in the country.
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Since Russia is not an ICC member country, how is it that the ICC prosecutor investigates allegations against Russian nationals for crimes committed in Ukraine?
Because Russia is not a member of the ICC, its authorities are not legally bound to cooperate with the court in the investigation in Ukraine. However, under the court’s treaty, and given Ukraine’s acceptance of its jurisdiction, the ICC prosecutor has a mandate to impartially investigate allegations of crimes committed in Ukraine by all parties to the conflict, regardless of the nationality of the person allegedly responsible.
The ICC’s jurisdiction in Ukraine covers genocide, crimes against humanity, and war crimes. Liability for these crimes is not limited to those who carry out the acts, but also those who order, assist, or are otherwise complicit in the crimes. That includes liability on the basis of command responsibility in which military and civilian officials, up to the top of the chain of command, can be held criminally responsible for crimes committed by their subordinates, when they knew or should have known that such crimes were being committed, but failed to take reasonable measures to stop or punish them.
Securing arrests is one of the ICC’s most difficult challenges. Without its own police force, the court must rely on states and the international community to assist in arrests. All ICC member countries are obligated to cooperate in the arrest of individuals wanted by the court.
This can be challenging in practice. Beyond the arrest warrants related to the investigation in Ukraine, when it comes to cases involving core ICC crimes, the court has issued arrest warrants against 12 individuals in various countries that have not been executed, and some of these warrants are now almost 18 years old.
However, there have been arrests. Sixteen individuals wanted for core ICC crimes have been surrendered to the ICC to date.
Arrests can take time, particularly where those sought are high-ranking government officials, but usually have occurred with sufficient international support. Charles Taylor, the former Liberian president, was apprehended to face charges at the UN-backed Special Court for Sierra Leone after three years of safe haven in Nigeria. Similarly, after many years of evading justice, high-level suspects were arrested and faced trial by the International Criminal Tribunal for the former Yugoslavia.
When an individual appears at the court following an arrest and surrender, pre-trial proceedings known as the “confirmation of charges” take place to determine whether the available evidence establishes substantial grounds to believe that the person committed each of the crimes charged. When and if a charge or charges are confirmed, a trial date is set.
The ICC’s treaty, the Rome Statute, is clear in article 27 on “[ir]relevance of official capacity,” that is, the ICC may prosecute sitting government officials, no matter how senior, consistent with the fundamental principle that no one is above the law. The irrelevance of official capacity under article 27 of the Rome Statute is part and parcel of the court’s mission that “the most serious crimes of concern to the international community as a whole must not go unpunished.”
As a matter of policy, the ICC prosecutor’s office gives priority to cases against individuals who it determines are most responsible for the crimes it identifies, regardless of their official position. Immunity for sitting government officials does represent an obstacle to prosecuting certain individuals implicated in serious international crimes in national courts. According to this principle, certain foreign government officials, such as accredited diplomats, heads of state and government, and foreign ministers are entitled to temporary immunity from prosecution by foreign states while they hold their positions, even for serious international crimes. The immunity ceases once the person leaves office and should not bar later prosecutions.
The ICC prosecutor can seek additional arrest warrants, including against the two individuals named in the warrants announced on March 17. In a statement after the warrants were announced, the ICC prosecutor indicated that “[his] Office continues to develop multiple, interconnected lines of investigation. … We will not hesitate to submit further applications for warrants of arrest when the evidence requires us to do so.”
Under international law, states have a responsibility to investigate and appropriately prosecute (or extradite for prosecution) suspected perpetrators of genocide, war crimes, crimes against humanity, and other international crimes. The ICC does not shift this responsibility. It is a court of last resort. Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country does not or is unwilling or genuinely unable to investigate and, where appropriate, prosecute these grave crimes.
Even after an ICC investigation is opened, there are opportunities for states and individual defendants to challenge the lawfulness of cases before the court based on the existence of national proceedings.
Ukrainian President Volodymyr Zelensky called the ICC warrants a “historic decision which will lead to historic accountability.” The European Union High Representative for Foreign Affairs and Security Policy Josep Borrell issued a statement noting the warrants, recalling the EU’s support for the ICC prosecutor’s investigations in Ukraine, and calling for cooperation by all ICC member countries. While other EU member states noted or welcomed the warrants, Hungary reportedly blocked efforts to issue a joint statement on behalf of all 27 EU member countries. Other ICC member countries including Canada, Chile, Iceland, Liechtenstein, New Zealand, and the UK also spoke up to support the issuance of warrants. US President Joe Biden termed the warrants “justified,” even though the United States, as a matter of policy, continues to object to the ICC’s jurisdiction over nationals of non-states parties in the absence of a UN Security Council referral.
A Kremlin spokesperson denounced the warrants and indicated that Russia does not recognize the ICC’s authority. Russian investigators opened criminal cases against the ICC prosecutor and judges sitting on the ICC pre-trial chamber charged with the case, while the former president, Dmitry Medvedev, threatened missile strikes against the court’s seat in The Hague, the Netherlands. In response, the presidency of the body of ICC member countries, the Assembly of States Parties, and the EU high representative issued statements protesting these moves.
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How has the ICC prosecutor’s decision to open a Ukraine investigation impacted the resources available to the court?
The ICC is an independent international judicial institution funded through an annual budget comprised of contributions from its member countries, which are assessed based on the country’s income. ICC member countries set the court’s budget at their yearly meeting. Following certain rules and in exceptional circumstances, the ICC can also receive additional voluntary contributions from governments, international organizations, individuals, corporations, and other entities.
Over the years, the mismatch between the court’s growing workload and its budget has become apparent.
On March 7, 2022, soon after his decision to open a Ukraine investigation, the ICC prosecutor initially called on the court’s member countries to provide his office with additional resources to support its work across all situations under investigation through voluntary contributions and gratis personnel. Several ICC member countries have since provided the court with additional financial and human resources outside the ICC’s regular budget.
The provision of these additional resources serves as an acknowledgment that the court does not have the resources necessary to fulfill its mandate. This is a concern that has been consistently raised by court officials long before the expansion of the Ukraine conflict.
The provision of contributions in close proximity to the opening of the Ukraine investigation also raised perceptions of politicization in the court’s work as they appeared directed to support the prosecutor’s work solely in that situation. Although voluntary contributions cannot be earmarked to a specific situation and the prosecutor has repeatedly emphasized that additional resources will support the work of his office across all situations, several ICC member countries linked their contributions to Ukraine in their public messaging.
On March 20, 2023, on the heels of the first two arrest warrants in the Ukraine investigation, the United Kingdom and the Netherlands hosted a conference of justice ministers aimed at supporting the court’s Ukraine investigation. According to media reports, during the meeting several ICC member countries made additional pledges for voluntary contributions to the Office of the Prosecutor.
Human Rights Watch and others have called on ICC member countries to adopt a principled approach to the court’s funding and strengthen its regular budget to ensure that all the court’s organs can robustly and consistently execute their work across all situations.
In December 2022, ICC member countries approved what appears on the face of it to be a substantial increase to the court’s annual budget, but which barely covers costs associated with inflation and which is far below what the court had requested.
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Can judicial officials in other countries investigate and prosecute international crimes committed in Ukraine?
Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction,” which refers to the ability of a country’s domestic judicial system to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals. Certain treaties, such as the 1949 Geneva Conventions and the Convention against Torture, obligate states to extradite or prosecute suspected offenders who are within that country’s territory or otherwise under its jurisdiction. Under customary international law, it is also generally agreed that countries are allowed to try those responsible for other crimes, such as genocide or crimes against humanity, wherever these crimes took place.
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Have judicial officials in other countries opened any investigations into serious crimes in Ukraine?
Yes. Judicial officials in a number of countries have announced steps to open investigations related to war crimes committed in Ukraine. In some cases, these investigations are focused on collecting and preserving evidence of war crimes believed to exist in the country, including by interviewing victims and witnesses among the refugee population. In other cases, the country may be conducting its investigations based on the principle of universal jurisdiction.
For example, in March 2022, Germany opened what is known as a structural investigation into suspected war crimes and crimes against humanity in Ukraine, including by conducting a broad survey, securing facts and evidence, questioning witnesses, screening command structures, and identifying alleged perpetrators of war crimes. In France, by contrast, all seven investigations opened to date into war crimes in Ukraine are focused “solely on the count of war crime or complicity in a war crime” and involved French victims.
On March 1, 2022, Lithuania opened a preliminary investigation into war crimes in Ukraine. A team of 40 prosecutors, police and other officials are working on the investigation, which at time of publication had involved interviewing approximately 300 witnesses and recognized over 70 people as victims. Lithuanian prosecutors have also traveled to Ukraine to take statements of victims and witnesses and inspect relevant crime scenes with Ukrainian prosecutors and investigators.
The European Union Agency for Criminal Justice Cooperation (Eurojust) also established a Joint Investigative Team (JIT) for Ukraine in March 2022 to facilitate war crimes investigations and enable the exchange of information. At present six EU member states (Estonia, Latvia, Lithuania, Poland, Romania, and Slovakia) are members of the JIT, together with Ukraine and the ICC office of the prosecutor. In May 2022 the Council of the European Union also adopted new rules allowing Eurojust to create the Core International Crime Evidence Database to store and preserve evidence related to war crimes, including in Ukraine. The database was officially launched in February 2023.
There are several monitoring and documentation mechanisms established by international organizations, including ones that were already established in response to Russia’s occupation of Crimea in 2014, as well as mechanisms set up more recently in response to Russia’s full-scale invasion of Ukraine in February 2022. These include the International Commission of Inquiry on Ukraine, which was established by the UN Human Rights Council on March 4, 2022, with a mandate to investigate alleged violations of human rights and international humanitarian law in Ukraine and preserve evidence for “future legal proceedings.” The commission’s March 2023 report to the Human Rights Council found that Russian authorities have committed a wide range of international humanitarian law violations, many of which amount to war crimes, and several of which may amount to crimes against humanity; and a small number of violations by Ukrainian armed forces.
There have been numerous calls for creating a special tribunal to prosecute the crime of aggression. While the ICC’s jurisdiction over this crime was activated in 2018, it does not have jurisdiction over the crime in Ukraine because neither Ukraine nor Russia is an ICC member.
Human Rights Watch does not work on the crime of aggression and maintains a position of strict neutrality in order to carry out our mandate to report on violations of international humanitarian law and potential international crimes committed by all parties to a conflict. This extends to not advocating for or against the prosecution of the crime, whether at the national or international level.
Human Rights Watch is following discussions about the potential establishment of a special aggression tribunal, as well as some suggestions that there should be amendments to the ICC's jurisdictional regime over the crime of aggression. While Human Rights Watch is not able to take a position on the different proposals for a possible tribunal per se, we believe it is important to consider how such a tribunal would interact with other justice responses on Ukraine, including the ICC, and be alert to risks stemming from a lack of coordination, dilution of resources, and issues related to selectivity.
Accountability for serious international crimes is a key component of sustainable peace. Trials signal that atrocity crimes will not be tolerated, thereby helping to deter future violations, bring redress to victims and their families, and rebuild confidence in the rule of law. By contrast, experience in various countries over more than two decades bears out that the lack of credible prosecution of atrocity crimes often fosters further abuses. While the relationship between justice initiatives and political agreements to end conflicts can be complex, the record from other conflicts, such as those in the Balkans, confirms that criminal indictments of senior political, military, and rebel leaders can strengthen peace efforts by delegitimizing and marginalizing those who stand in the way of resolving conflict.
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What does the unprecedented commitment to accountability for crimes in Ukraine mean for other situations where civilians suffer?
The unprecedented accountability response at the national, regional, and international levels to alleged crimes in Ukraine holds out promise to meet victims and survivors’ rights to access justice. It will be no easy feat to deliver on this promise, and sustained support and international cooperation over many years is likely to be needed for these efforts to bear fruit.
That said, the mobilization on justice in Ukraine demonstrates that where there is political will for justice, there is a way. Vocal support by many governments for the ICC’s investigation in Ukraine contrasts sharply with more muted support in other situations, for example, Palestine. The absence of similar responses in other situations of atrocity crimes not only deprives victims of their rights to justice, but by reinforcing double standards it threatens the legitimacy of the international justice system as a whole.
A double standard in victims’ access to justice should not be accepted as inevitable. Building on the current momentum for accountability for grave crimes and, moving forward, lessons learned from the response to Ukraine, governments should take concrete actions to strengthen the global architecture of international justice. This can include increased support and participation in the ICC’s global mandate and other internationalized justice mechanisms, enacting domestic laws to facilitate effective national prosecutions of serious international crimes, and joining efforts to restrain the use of the UN Security Council veto in situations of mass atrocity.
