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Ukraine must investigate alleged war crimes committed by its forces

While nowhere near the scale of Russian atrocities, there is mounting evidence that Ukrainian forces have committed war crimes in the course of the Ukraine-Russia war. The accusations and the evidence supporting them will not go away. What matters now is how Ukraine responds to them. Your 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 the Russian invasion of Ukraine, allegations that Ukrainian forces have committed war crimes against Russian officers and prisoners of war (POWs) have increased. A controversial Amnesty International report claimed that Ukrainian military tactics endanger civilians. Video footage has since been released suggesting that Ukrainian troops may have executed the surrendering Russian officers in the city of Makiivka. In 2019, the International Criminal Court (ICC) found that Ukrainian forces committed possible war crimes against Russian soldiers in eastern Ukraine.

To be clear: none of these accusations establishes a moral or legal equivalence between the acts of the Ukrainian and Russian forces. Any alleged crimes committed by Ukrainian officers pale in comparison to the aggression and barbarity that Russian forces have displayed in Ukraine. But all atrocities must be held accountable, not just those of enemies.

In response to videos showing possible 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 the Russian soldiers seen in these videos were killed only after they deceived Ukrainian forces by pretending to surrender.

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An investigation announcement is a good first step. But Ukraine must avoid drawing conclusions before any investigation is carried out. It is important to avoid tunnel vision and allow an unbiased investigation to speak for itself. As former Human Rights Watch director Kenneth Roth notes: “An investigation is needed… A Russian shot his Ukrainian captors (possible perfidy), but that does not justify the execution of other soldiers if they did not pose an immediate threat.”

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

First, Kyiv’s international partners must state clearly and unequivocally that international criminal law and international humanitarian law apply to all parties to a conflict, not just some. This is true even in severely asymmetric wars like the one in Ukraine.

Not all states have done this. The UK, France and Canada, among others, have been conspicuously silent on the issue. However, they might consider the example of US War Crimes Ambassador General Beth Van Schaack, a strong 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 defending state and this is in equal measure… [A]All parties to the conflict must abide by international law or face the consequences.”

Second, states can offer assistance to 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 look into the allegations against its own troops. That would not only help conduct investigations, but could also provide credibility, burden sharing, and impartiality to any investigation. It could also help ease any pressure on the political authorities in Ukraine to sweep the 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 can be forgiven for not realizing that the country is not an ICC member state. There are multiple reasons for this, but none good enough to justify staying outside the Rome Statute system. ICC membership could help galvanize and promote genuine national accountability efforts.

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Finally, Ukraine’s allies must make it clear that investigating any alleged wrongdoing is in Kyiv’s interest. Ukraine constantly 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.

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As it is, Russia has used accusations of Ukrainian war crimes to sell empty justifications for its own atrocities. When faced with evidence of Russian war crimes, Moscow’s ambassador to the UK sidetracked and raised Amnesty International’s report alleging Ukrainian war crimes against Russian soldiers. Russia has also planned numerous show trials of Ukrainian prisoners of war on trumped up charges. Ukraine cannot stop these cynical ploys, but it can undermine its influence on public opinion by independently and impartially investigating any allegations against its own troops.

Ukraine can and must be ready to address its own atrocities. Wayne Jordash, an international criminal lawyer who supports war crimes investigations in Ukraine, has stated that the Ukrainian judicial authorities “are very careful to try to ensure a fair trial and there is no culture of revenge. I see a determination to hold people accountable in a way that is credible.” The opposite is true of Moscow.

Standing on the side of international law and justice means accepting that all victims of atrocities, and not just some, deserve justice. Ukraine can prove this. With the help of his allies, he should.

The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.

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