War crimes in Ukraine: “Our commission is not a court”

The UN fact-finding mission to Ukraine is a “fact-finding commission,” not a tribunal, says its chairman, Erik Møse. What complicates the work – and whether there are contacts to Russia.

ARD: A number of organizations and institutions are looking for evidence of war crimes in Ukraine. What is your role in all of this?

Eric Moses: Our independent commission was established by the UN Human Rights Council through a resolution in March this year. So we’re a body of the United Nations and we have a very broad mandate that follows from the resolution. It covers all alleged violations of human rights, all alleged violations of international humanitarian law and related crimes. We are to investigate whether there are violations of these legal norms. We are also asked to identify the perpetrators, individuals or entities that may have committed such violations and to make suggestions for accountability. This shows how broad our mandate is compared to many other agencies working on the ground in Ukraine.

ARD: But you also work with some of these bodies?

Cunt: We are at least in contact with them because it is important to avoid lack of coordination. If everyone does the same thing, there is a risk of duplication and perhaps even re-traumatization of witnesses. Of course, this is only a problem as long as the mandates overlap, and our mandate is broad. So it is only part of our mandate where this is particularly acute. We are in dialogue with the International Criminal Court in The Hague and the Prosecutor’s Office of Ukraine to achieve some coordination. But of course we are completely independent.

“Know the version of all conflicting parties”

ARD: How many person works for you locally in Ukraine?

Cunt: First of all, we have the Commission Secretariat, which has now been set up and consists of about 20 people. It is based in Vienna and supports the three commissioners appointed by the Human Rights Council. However, we also draw on the expertise of the High Commissioner’s Mission in Ukraine, which has been on the ground since 2014. You have of course provided a wealth of material and we are reviewing that material. And that’s one of the sources that’s kind of a starting point for our investigation.

ARD: You have the mandate of the United Nations. Russia did not agree to this UN mission. Have you as an organization managed to get in touch with the Russian side so far?

Cunt: We have contacted the Russian authorities and expressed our interest in getting in touch with them. So far we have not been able to do this, but we are continuing our efforts and it would of course be an advantage for us as an independent and impartial organization if we knew the version of all parties to the conflict.

“Check each material for authenticity”

ARD: This war is obviously the best documented of all time – in pictures, on social media, in films and almost live on every smartphone. Does that help in finding evidence or is it more likely to spread fake news?

Cunt: It is true that this conflict is marked by a great many sources. Documents with testimonies, but also pictures, photos, private videos, and so on and so on. All of this can be important, but I don’t think there’s a danger that we’ll drown in it. We’ll take the opportunity to examine what’s available as normal, and choose what’s conclusive or has any value. And of course we will check every material we receive for its authenticity.

ARD: Your order is limited in time. When do you decide you’ve gathered enough evidence? And what do you do with that evidence afterwards?

Cunt: This commission must submit its final report to the Human Rights Council in March 2023. And so much has happened and there is so much evidence that I think in a way this will mark the end of the evidence gathering. So as we approach this report, we must stop further investigation and complete the report.

And this evidence that we have gathered will be preserved for the future because, as I said, accountability is one of the goals of the mission. It is then up to the Human Rights Council to decide how to proceed. Thus, based on the recommendations in our report, the Human Rights Council will have to deal with different types of accountability.

“UN Human Rights Council decides”

ARD: Can you comment on the evidence?

Cunt: In general, I can say that there is of course a wealth of material; precisely because of the many possibilities that are available. We’re conducting our own investigations. We receive documentary footage, photos, films. Sources contact us. So there is a lot of material.

ARD: Your commission has nothing to do with a criminal court. Does that mean the International Criminal Court has nothing to do with your commission?

Cunt: Our commission is a fact finding commission. She is not a court. We examine the situation, make recommendations – and then it’s up to the UN Human Rights Council to decide how to proceed on accountability.

And one possibility of accountability will, of course, be possible criminal proceedings. True, there is a difference between our commission of inquiry and courts, but we will examine possible options in this regard in our report.

The interview was conducted by Cornelia Kolden, ARD studio in Brussels