Violation of human dignity as a war crime of the Russian Federation: prospects for consideration by the International Criminal Court
Human dignity is an important trait of every individual. For Ukrainians, it is an inseparable national trait, the essence of which is the desire for freedom and independence. The Russian aggressor is trying not only to conquer our lands but also to humiliate the dignity and break the will of the Ukrainian people. Olena Temchenko, the Expert Center for Human Rights lawyer, believes that the cynicism and barbarism of Russians lies in the fact that, despite having pretensions to the cultural and spiritual nation, they inflict pain and humiliate defenseless women and children, as well as those who defend the honor and dignity of their people. The representatives of “great russia” demonstrate the mud of the human essence, which is not condemned by either its leadership or the population.
Military servicemen released from Russian captivity testify en masse about brutal torture, which is accompanied by humiliation of human dignity. In April 2022, 86 servicemen, including women, were released from Russian captivity. They were subjected to torture and ill-treatment in the pre-trial detention center in Bryansk. Captured Ukrainian women were stripped naked in the presence of men and forced to squat. Women had their hair cut and their heads shaved, they were constantly interrogated, trying to break their morals. This is a violation of Article 14 of the Geneva Convention on the Treatment of Prisoners of War, according to which prisoners of war have the right to respect for their person and honor in all circumstances, and women must be treated with respect due to their sex.
During their stay in the Volnovkha correctional colony, prisoners of war were stripped and forced to squat down to enter the room, they were subjected to torture and cruel treatment, humiliation of honor and dignity, in particular, they were systematically humiliated and insulted for the military service in the Armed Forces and participation in deterring armed aggression against Ukraine, which was accompanied by foul language and caused them moral suffering. There are thousands of such testimonies as after February 24, 2022, the number of prisoners of war is measured in thousands and the scale of war crimes by Russians is equal. The most brutal ones are the released videos of the executions of prisoners. This is not only the brutal murder of unarmed people. Such disclosures were intended to intimidate and humiliate Ukrainians. Instead, they drew their ire and the condemnation of the international community. In particular, French Ambassador to Ukraine Étienne de Poncins said: “France was horrified by the video of the beheading of a presumable Ukrainian prisoner of war by the Russian armed forces in Ukraine. France strongly condemns this barbaric act, which is an obvious violation of International Humanitarian Law and an intolerable violation of human dignity. Those guilty of all crimes committed in Ukraine must be brought to justice.”
“Russian forces and pro-Russian armed groups subjected Ukrainian prisoners to extrajudicial executions, sexual violence, and other abuses,” concluded Matilda Bogner, head of the UN Human Rights Monitoring Mission in Ukraine. She stated that Ukrainian prisoners of war were subjected to cruel and degrading treatment by Russian security forces.
The Report on the Treatment of Prisoners of War released by the Head of the UN Human Rights Monitoring Mission in Ukraine dated March 24, 2023, recorded that: “Military servicemen of the Russian Armed Forces and FSB officers tortured and brutalized them (prisoners of war) in order to obtain military information, intimidate or humiliate them, or take revenge. Torture included beatings, electric shocks, and in some cases, the infliction of gunshot or stab wounds to the limbs. Imitation of execution was also common.”
Civilians who were captured or detained also suffered psychological abuse, insults, and humiliation by Russian military servicemen, as they testified after their release. They talked about threats and intimidation directly during detentions or interrogations. In particular, they were threatened with being shot and raped, physically tortured, and mutilated – their fingers and ears were cut off, and they were castrated. People also witnessed the torture of fellow inmates, heard screams, and saw the consequences of beating others. Individual interviewees claimed that they were forced to answer the call of nature on Ukrainian military uniforms.
Article 3 of the Geneva Convention for the Protection of Civilian Population in Time of War prohibits insults to human dignity, in particular insulting and degrading treatment of persons not taking an active part in hostilities, including persons from the armed forces who have laid down their arms, as well as those who are hors de combat due to illness, injury, detention or any other reason.
The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Alice Jill Edwards, acknowledged that the volume of credible allegations of torture and other acts of inhumane treatment committed against civilians and prisoners of war by the Russian authorities continues to grow. These horrific acts are seen as neither rare nor random but rather arranged as part of public policy to intimidate, instill fear, punish, or extract information and confessions.
During her visit to Ukraine between September 4 and 10 of this year, she received information about the procedures and practice of investigation and prosecution for crimes committed in the context of the armed conflict. According to the Office of the Prosecutor General, as of October 1, 2023, there are 106,103 investigations into violations of the laws and customs of war (Article 438 of the Criminal Code of Ukraine).
The fact that such incidents are of a mass nature and are carried out within the framework of the state policy of the Russian Federation are grounds for qualifying them as war crimes. After all, part 1 of Article 8 of the Rome Statute of the International Criminal Court (ICC) states that the Court has jurisdiction over war crimes, in particular in cases when they were committed as part of a plan or policy or as part of a large-scale commission of such crimes. Since such actions against persons are protected under the provisions of the above-mentioned Geneva Conventions, they can be qualified as a war crime against human dignity, in particular, insulting and humiliating treatment.
In practical terms of the International Criminal Court, there are currently sentences for such a crime. Thus, in the case “Prosecutor v. Dominic Ongwen”, Ongwen was found guilty, including for the war crime of violation of human dignity, in particular, insulting and humiliating treatment. The Trial Chamber found that forcing a prisoner to kill another one with a loaded stick, inspecting corpses, forcing a kidnapped to watch someone being killed, as well as forcing mothers to leave their children on the side of the road in the circumstances of the attack in the Odek refugee camp constituted a violation of the dignity of the victims. This violation of dignity was so serious that it could be generally recognized as an attack on human dignity. On February 4, 2021, Trial Chamber IX of the ICC found Dominic Ongwen guilty of a total of 61 crimes against humanity and war crimes, including violations of human dignity, as well as insulting and degrading treatment, committed in Northern Uganda between July 1, 2002, and December 31, 2005.
Although the listed crimes were committed within the framework of an armed conflict of a non-international nature, the elements of such a crime coincide with the elements of a crime in an international armed conflict.
The nature of the war crime: “offense against human dignity, in particular, insulting and humiliating treatment” is directly contained in part 2 of Article 8 of the Rome Statute: for a military conflict of an international nature in clause b(xxi) and of a non-international nature – in clause c (ii). They are specified in a separate document of the ICC “Elements of crimes”, which explains the composition of each crime, including “infringement on human dignity, in particular, offensive and humiliating treatment”:
- The performer insulted, humiliated, or otherwise violated the dignity of one or more persons.
- The insult, humiliation, or other violation of dignity had such a degree of seriousness that it should be considered an infringement of human dignity by general recognition.
- The act took place in the context of an international armed conflict and was connected with it.
- The performer was aware of the actual circumstances that indicated the existence of an armed conflict.
Crimes committed by the Russians against prisoners of war and the civilian population, according to the characteristics of the Elements of Crimes, can be qualified as a war crime of “violation of human dignity, including offensive and humiliating treatment.”
In the Judgment on Confirmation of Charges in the case “The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui”, the Chamber found compelling grounds to consider committing an offense against personal dignity a war crime in relation to:
- hanging handcuffed and naked women in captivity or forcing them to stay in certain positions for a long time;
- forcing a woman to be in public in only her blouse and underwear and then cutting her underwear with a knife during and after the attack on the village of Bogoro on February 24, 2003, in the Ituri Province of the Democratic Republic of the Congo (Lendu and Ngiti armed groups attacked the village of Bogoro intending to destroy the camp of the Union of Congolese Patriots, as well as the Hema population that lived there).
However, in the indictment of Germaine Katanga (the case “Prosecutor v. Germaine Katanga and Mathieu Ngudjolo Chui”), there are no accusations under this article. He was convicted of a crime against humanity – murder and according to four clauses of war crimes: murder, attack on civilians, destruction of property, and robbery. Trial Chamber II acquitted Mathieu Ngudjolo Chui of war crimes and crimes against humanity and ordered his immediate release. It has not been proved in each case that the insult, humiliation, or assault was sufficiently “serious” to constitute a generally recognized violation of human dignity.
In order to bring the military and political leadership of the aggressor country to justice in the ICC, Ukraine must take into account the experience of making decisions by the ICC and provide evidence that the violation of human dignity is a state policy of the Russian Federation or that this crime is committed on a large scale.
Currently, there is no comprehensive list of violations of human dignity. According to the practice of the International Criminal Court, such violations are rape and other forms of sexual violence, which are committed en masse by Russian military servicemen in Ukraine. They are documented after the liberation of temporarily occupied territories. Thus, after the liberation of Kherson Oblast, more than 60 cases of rape were documented in the region by law enforcement agencies. In particular, it was established that a Russian serviceman broke into the house of a resident of the Kherson region, stayed there for 4 months, and constantly raped her, threatening the victim and her 9-year-old son with physical violence. In one of the villages of the Kherson region, a soldier of the occupation forces raped an underaged girl in the presence of her mother and grandmother.
As of the end of September 2023, there are 235 criminal proceedings on sexual violence related to the armed conflict under investigation in Ukraine. Such crimes include rape, genital mutilation, torture, forced stripping, and threats of rape.
The Prosecutor General of Ukraine stated that sexual violence is used as a political and military tactic by Russian Armed forces. The inherently criminal plan of the Russian leadership aimed at spreading fear and terror and rooting out resistance among Ukrainians so that Russia could destroy Ukrainian identity. Documented crimes are systematic and large-scale.
The scale and severity of the violations committed in Ukraine by the Russian armed forces are also mentioned in the latest report of the Independent International Commission for the Investigation of Violations in Ukraine dated September 25, 2023. The UN Commission for Investigating Violations in Ukraine emphasizes the need to bring the guilty to justice.
Therefore, Ukraine must carefully document the crimes, which will make it possible to bring the Russian military and political leadership to justice for war crimes, in particular, for violations of human dignity, in particular, insulting and humiliating treatment.
For reference
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