Ukraine must investigate alleged war crimes by its forces

Ukraine and its allies should understand that investigating such allegations is in Kyiv’s interest.

Ukrainian soldiers fire French MO-120-RT-61 120mm mortar at Russian positions on the front line near Bakhmut, Donetsk region, December 6, 2022
Ukrainian soldiers fire French MO-120-RT-61 120mm mortar at Russian positions on the front line near Bakhmut, Donetsk region, December 6, 2022 [File: AP Photo]

While nowhere near the scale of the Russian atrocities, there is mounting evidence that Ukrainian forces have committed war crimes over the course of the Ukraine-Russia war. The allegations, and the evidence supporting them, will not go away. What matters now is how Ukraine responds to them. Its allies also have a role to play in shaping that response. Unlike Moscow, Kyiv is capable of addressing atrocities committed by its forces in its own courts.

Since Russia’s invasion of Ukraine, allegations that Ukrainian forces have committed war crimes against Russian officers and prisoners of war (POWs) have grown. A controversial Amnesty International report asserted that Ukrainian military tactics put civilians in danger. Video footage has since been published suggesting that Ukrainian troops may have executed surrendering Russian officers in the town of Makiivka. Back in 2019, the International Criminal Court (ICC) determined that Ukrainian forces committed possible war crimes against Russian soldiers in eastern Ukraine

To be clear: none of these allegations draws moral or legal equivalency between the acts of Ukrainian and Russian forces. Any alleged crimes committed by Ukrainian officers pale in comparison to the aggression and barbarity Russian forces have demonstrated in Ukraine. But all atrocities must be accounted for, not just those of one’s enemies.

In response to the videos showing potential war crimes committed by Ukrainian forces, Ukraine announced that it would investigate. However, authorities have said they will open an investigation specifically into the war crime of “perfidy”, implying that Russian soldiers seen in these videos were killed only after they deceived Ukrainian forces by pretending to surrender.

The announcement of an investigation is a good first step. But Ukraine must avoid drawing conclusions before any investigation has taken place. It is important to avoid tunnel vision and allow an impartial investigation to speak for itself. As former Human Rights Watch Director Kenneth Roth notes: “An investigation is needed … One Russian fired on his Ukrainian captors – possible perfidy – but that doesn’t justify executing other soldiers if they posed no immediate threat.”

With respect to alleged crimes committed by Ukrainian forces, Kyiv’s allies have a role to play. Rather than condemning Ukraine, they should encourage it to take responsibility and launch independent investigations. This encouragement can take multiple forms.

First and foremost, Kyiv’s international partners should clearly and unequivocally state that international criminal law and international humanitarian law apply to all parties of a conflict, not just some. This holds true even in severely asymmetrical wars like that in Ukraine.

Not all states have done this. The United Kingdom, France, and Canada, among others, have been conspicuously silent on the subject. They might, however, consider the example of US War Crimes Ambassador-at-Large Beth Van Schaack, a staunch supporter of accountability efforts in Ukraine. Van Schaack recently stated that “the laws of war apply to all parties equally: both the aggressor state and the defender state and this is in equal measure … [A]ll parties to the conflict must abide by international law or face the consequences.”

Second, states can offer to assist Ukraine in its investigations into any alleged crimes committed by the country’s armed forces. London, Ottawa, and Paris could send their investigators to help Ukraine examine allegations against its own troops. That would not only help in conducting the investigations, but could also offer credibility, burden-sharing, and impartiality to any inquiry. It might also help alleviate any pressure on political authorities in Ukraine to sweep allegations against the military under the rug.

Third, Ukraine’s allies should encourage Kyiv to ratify the Rome Statute of the International Criminal Court. Given the level of ICC activity in Ukraine, observers may be forgiven for not realising that the country is not a member state of the ICC. There are multiple reasons for this, but none good enough to justify remaining out of the Rome Statute system. Being a member of the ICC could help galvanise and further genuine domestic accountability efforts.

Finally, Ukraine’s allies should make clear that investigating any alleged crimes is in Kyiv’s interest. Ukraine consistently presents itself as a state with international law on its side. By investigating and prosecuting its own alleged perpetrators, Ukraine can prove its point and show that it will not tolerate violations of international law no matter who commits them.

As it stands, Russia has used allegations of Ukrainian war crimes to peddle vacuous justifications for its own atrocities. When confronted with evidence of Russian war crimes, Moscow’s ambassador to the UK deflected by raising Amnesty International’s report alleging Ukrainian war crimes against Russian soldiers. Russia has also planned numerous show trials of Ukrainian POWs on trumped-up charges. Ukraine cannot stop these cynical ploys, but it can undercut their influence on public opinion by independently and impartially investigating any allegations against its own troops.

Ukraine can and should be willing to address its own atrocities. Wayne Jordash, an international criminal lawyer supporting Ukrainian war crimes investigations, has stated that Ukrainian legal authorities “are very careful to try and ensure a fair trial and there’s not a culture of vengeance. I see a determination to hold people to account in a way that is credible.” The opposite holds true of Moscow.

Being on the side of international law and justice means accepting that all – and not just some – victims of atrocities deserve justice. Ukraine can prove this. With help from its allies, it should.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.