Prosecuting Attacks on Health Care in Ukraine: A Call for Accountability

[Christian De Vos, JD, PhD, is the Director of Research and Investigations at Physicians for Human Rights; Anna Gallina, LL.M, Advanced LL.M, and Julianne Romy,  LL.M, LL.M, LL.M, are respectively the Associate Legal Advisor and the Legal Advisor at eyeWitness to Atrocities, initiated by the International Bar Association.]

Introduction

It has been a busy period for justice and accountability in Ukraine. Last week, justice ministers from a range of countries gathered in London for an international conference, convened by the United Kingdom and The Netherlands, on “Supporting the International Criminal Court (ICC) and its investigation into the situation in Ukraine”. This meeting came on the heels of Pre-Trial Chamber II at the ICC issuing two public arrest warrants—for Vladimir Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights—for the war crimes of unlawful deportation and unlawful transfer of children from occupied areas of Ukraine to the Russian Federation. Other cases are likely to follow. Meanwhile, in Geneva, the Independent International Commission of Inquiry (IICOI) on Ukraine released its new report to the Human Rights Council, concluding that Russian authorities have committed a wide range of violations of international humanitarian law and international human rights law, including several that amount to war crimes, such as attacks on civilians and civilian infrastructure, as well as potential crimes against humanity. All of this comes as the world just observed a dark anniversary: one year since the Russian Federation began its full-scale invasion of Ukraine. 

Attacks on civilians and civilian infrastructure, including health care systems, have long been a hallmark of armed conflicts across the world, and so have the devastating and destabilising effects that they carry. To date, however, there have been hardly any prosecutions for such attacks. Moreover, thus far, only the IICOI and the OSCE Moscow Mechanism’s initial and interim reports have publicly mentioned such attacks.  

Last month, however, our organizations—together with Insecurity Insight, the Media Initiative for Human Rights, and the Ukrainian Healthcare Center—published a comprehensive report (Destruction and Devastation: One Year of Russia’s Assault on Ukraine’s Health Care System) that documents compelling evidence of how Russian forces appear to be both deliberately and indiscriminately targeting Ukraine’s health care system as part of a broader attack on its civilian population and infrastructure. These attacks have had a staggering toll on the country, including repeated attacks on health care facilities and ambulances, theft and destruction of critical infrastructure and supplies, and evidence of assaults and ill-treatment of Ukrainian health care workers.  The research team documented a total of 707 attacks on Ukraine’s health care system between 24 February and 31 December 2022 alone. 

The report demonstrates that there is an urgent need to prioritise the investigation of these crimes, and for justice actors—individually and institutionally—to cooperate and coordinate in order to maximise information sharing and efficiency. This post builds upon the report’s legal analysis and highlights a selection of relevant war crimes under the Rome Statute related to attacks on health care specifically. It further details avenues to promote accountability for these attacks.

Attacks on Ukraine’s Health Care System as War Crimes under the Rome Statute

The report highlights a range of likely war crimes (and potential crimes against humanity, though not discussed here) under the Rome Statute that are relevant to attacks on health care. These include: 

Attacking Protected Objects (Rome Statute, Article 8(2)(b)(ix))

The Rome Statute affirms that hospitals and health facilities are protected objects under international law. ICC jurisprudence likewise makes it clear that protected objects “deserve special protection because of the role [they] play in the daily life and welfare of the civilian population” and that such protection must be respected especially in times of armed conflict, when—as a result of the fighting—injuries are more common (ICC, Prosecutor v. Ntaganda, para. 138). The crime of attacking protected objects requires that the perpetrator must not only have intended to launch an attack, but was also aware of the target’s protected status—for example, if it was known to be a medical facility or was indicated by the emblems of the Geneva Conventions or other distinctive signs—and intended it to be the object of the attack (e.g. ICC, Prosecutor v. Ntaganda, para. 1147). The attack does not, however, require a particular result: even if a hospital does not suffer damage, the attack itself is a crime.

Hospitals are protected unless and for so long as they become military objectives, i.e., used to commit acts harmful to the enemy outside their humanitarian function (ICC, Prosecutor v. Ntaganda, para. 1147). A hospital being guarded by sentries is therefore not an act harmful to the enemy and does not deprive a hospital of its protected status (Additional Protocol I, Art. 13(1)). Further, even if a hospital might become a military objective, its special protection against attacks ceases only after a warning has been given and such warning is ignored (ICTY, Prosecutor v. Prlić, para. 125).

The series of attacks in March 2022 on the Trostianets City Hospital, clearly marked with the Red Cross Emblem, appear to be a striking example of attacks against protected objects (see Case Study #5). While there was ongoing fighting in the area and Ukrainian forces may have been in the vicinity of the hospital or on the territory of the hospital on one occasion, the hospital’s location near legitimate military targets alone did not deprive it of its protected status. In fact, the hospital appears to have continued to operate exclusively as a medical facility, albeit at reduced capacity. Notwithstanding its protected status, Russian forces allegedly set up two military posts behind and in front of the hospital, mined the area around it, repeatedly shelled the hospital, and in one instance also reportedly entered the building and fired inside the premises. The attacks resulted in the destruction of several departments and the building’s overall structure.

Excessive Incidental Death, Injury, or Damage (Rome Statute, Article 8(2)(b)(iv))

This provision encompasses international humanitarian law’s (IHL) prohibition of indiscriminate attacks and criminalises attacks launched against a military target that would result in death, injury, or damage that is clearly excessive in relation to the “concrete and overall military advantage anticipated.” This assessment must be made ex ante, before the attack is launched. Crucially, however, the attack itself does not require a particular result and the crime can be committed even if excessive damage does not occur.

As the report highlights, there is a reasonable basis to believe that Russian forces repeatedly engaged in attacks in the knowledge that they would cause excessive damage to civilian areas, including health care facilities. For instance, the Chernihiv Regional Children’s Hospital was struck in one such attack when a BM-27 Uragan MLRS with warheads containing cluster munitions was reportedly launched from Russian-controlled areas towards the city centre of Chernihiv on 17 March 2022 (see Case Study #3), heavily damaging the hospital and killing at least 14 people, while injuring at least 26 others. At the time of the attack, the hospital was being used both as a medical facility and as a shelter for civilians. Russian forces launched the attack with a weapon incapable of distinguishing between legitimate targets and protected objects. Irrespective of whether there was a military objective, an assessment of the targets should have alerted Russian forces to the presence of large numbers of civilians in the area. 

Torture and Inhuman Treatment (Rome Statute, Articles 8(2)(a)(ii)-1 and 8(2)(a)(ii)-2))

The war crime of torture is the intentional infliction of severe pain or suffering, whether physical or mental, upon a protected person for the purpose of, among others, obtaining information, punishment, intimidation, or coercion. The definition of inhuman treatment under the Rome Statute is very similar but does not require such purpose. Unlike the definition of torture under the United Nations Convention against Torture, the Rome Statute does not require the perpetrator to hold the status of a public official or to have acted in an official capacity.

Between August and October 2022, the United Nations Human Rights Monitoring Mission in Ukraine “documented widespread practices of torture and ill-treatment in places of internment in the Russian Federation and in Ukrainian territory it occupies.” To that end, our organization’s report details the testimony of a doctor who was held in captivity at the Russian-controlled correctional colonies of Olenivka and Kalinin in the Donetska oblast (see Case Study #10). There, doctors, like other prisoners, were subject to physical violence, and underwent a so-called “admission procedure” during which they were beaten by guards. Further, the conditions in which they were held—including overcrowding, lack of beds, and inadequate access to food and water—fell short of the minimum standard of humane detention. Doctors also witnessed guards denying care to injured prisoners and intentionally inflicting pain and suffering on the detainees. Witnessing this treatment likely caused severe mental suffering, as did the doctors’ inability to provide proper medical care to wounded prisoners, due to the lack of adequate medicines and facilities. 

Ongoing Investigations and Avenues for Accountability 

Ukraine

Ukrainian authorities have primary jurisdiction to investigate, prosecute and adjudicate crimes committed within Ukraine’s territory. The principal legal provisions related to international crimes are found under Section XX of the Criminal Code of Ukraine (CCU), titled “Criminal offenses against peace, security of mankind and international order.” Currently, this section contains a non-exhaustive list of conducts that give rise to criminal liability, including the “use of means of warfare prohibited by international law” and “any other violations of rules of the warfare” recognized by international treaties ratified by Ukraine (CCU, Article 438). Critically, however, it makes no reference to crimes against humanity.

As of 24 March 2023, the Office of the Prosecutor General of Ukraine has registered over 73,000 instances of alleged war crimes. Amongst these, are the proceedings initiated against two service members of the First Tank Regiment of the Second Guards Tamanskaya Motorised Rifle Division for ordering to fire, and firing, a high-explosive fragmentation projectile with a T-72 tank at the Trostianets City Hospital (see Case Study #5 referenced above). The hearing, due to take place on 15 March 2023, was postponed after the defendants failed to appear in court. Prosecuting this attack is an important step forward in bringing attention to crimes committed against Ukraine’s health care system, although the focus is only on low level, direct perpetrators.

International Criminal Court

Neither Ukraine nor the Russian Federation are state parties to the ICC. However, pursuant to two declarations lodged by Ukraine in 2014 and 2015, the ICC has jurisdiction over alleged crimes committed on its territory. Just over one year after opening an investigation into the situation in Ukraine on the basis of an unprecedented joint referral by 43 state parties, the ICC Prosecutor submitted his first application to Pre-Trial Chamber II to issue arrest warrants against Putin and  Lvova-Belova. The Office of the Prosecutor (OTP) may be investigating a second war crime case in relation to attacks on vital civilian infrastructure, such as water supplies and gas and power plants. It is unclear as yet whether the scope of this second case would encompass attacks on health care facilities, but this would be a critical opportunity for the OTP to do so. Ensuring that hospitals are included as part of such a case would send an important, overdue signal that crimes against health care – and the devastating impact they wreak on civilian populations – must be punished. 

Other Avenues

The list of investigative bodies working on accountability for Ukraine does not end here. At the domestic level, for instance, at least 12 third countries have opened investigations into alleged war crimes and crimes against humanity committed in Ukraine since the full-scale invasion, demonstrating that universal jurisdiction can also be a powerful tool for accountability. Another example is the Joint Investigation Team (JIT) set up in March 2022 by Lithuania, Poland, and Ukraine with Eurojust’s support in order to facilitate investigations and prosecutions on core international crimes committed in Ukraine, and later joined by other national judicial authorities as well as by, unprecedently, the OTP. To support the JIT and other investigations, Eurojust has recently set up the Core International Crimes Evidence Database (CICED). Likewise, discussions around a possible tribunal on the crime of aggression could prove an important, additional avenue for demonstrating the staggering consequences of Russia’s war of aggression. 

The role of civil society organisations, journalists and individual citizens in gathering real-time and ex post facto evidence of alleged violations being committed in Ukraine has also been invaluable. As an example, the eyeWitness to Atrocities App has, to date, been used to capture more than 34,000 photos, videos and audio files across Ukraine since the onset of the full-scale invasion.

Conclusion

The evidence presented in our organizations’ new report, and partly summarised in this post, urgently warrants further investigation. As the OSCE Moscow Mechanism noted  in its report covering the first five weeks of the invasion, “[i]t is not conceivable that … so many civilian objects, including … hospitals … would have been damaged or destroyed if Russia had respected its IHL obligations in terms of distinction, proportionality and precautions in conducting hostilities in Ukraine.” Ukraine’s health care system looms large amongst these civilian objects that have been so badly damaged. The devastating short- and long-term impacts that these attacks have on the civilian population—diminished access to essential care services, reduced vaccination rates, diminished ability to manage chronic diseases, growing financial barriers and worsening of mental health— should make them a priority for investigation and prosecution. Investigators, prosecutors, and other mechanisms at the domestic and international levels each have a key role to play in making this a reality, as part of a comprehensive, multi-faceted approach to accountability.