(C) Radio Free Europe/Radio Liberty
This story was originally published by Radio Free Europe/Radio Liberty and is unaltered.
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Death at the Station [1]

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Date: 2023-02-21

The apparent Tochka missile containers are not visible at this site on satellite imagery recorded on April 11, the closest date to April 8 for which satellite imagery of this location is available. However, this does not rule out the possibility that the Tochka missiles were launched from this area or that the missiles had been stored within the compound. It is unlikely that these valuable munitions would be stored outside without cover or protection. Residents of the village also described to Human Rights Watch significant Russian military activity in and around the village in early April, including the firing of munitions.

Tochka 9Ya234 missile containers on a concrete slab at a compound in the village of Kunie in a video posted to the Facebook account of the Ukrainian Air Assault Forces on June 30, 2022. The video shows an apparent Ukrainian attack on the site against Russian forces. © 2022 Ukrainian Air Assault Forces via Facebook

Human Rights Watch visited the site in Kunie on January 10 and 11, 2023, about four months after Ukrainian forces had retaken control of the region. Researchers interviewed 16 people who live in the area and observed remnants on the concrete slabs outside the facility that were consistent with a Tochka 9Ya234 missile container. The intact containers were no longer at the site. One resident and a Ukrainian official told Human Rights Watch that the Ukrainian government had inspected the site and moved the containers to a government facility in the region.51 On September 6, 2022, containers are still visible on satellite imagery at the site. They are no longer visible in imagery recorded on January 7, 2023. On October 14, 2022, Carl Court, a photographer for Getty Images, photographed at least seven 9Ya234 missile containers on the same concrete slab at the Kunie site visited by Human Rights Watch.

Seven Tochka 9Ya234 missile container storage cases pictured on the concrete slab outside the facility being used by Russian forces near Kunie on October 14, 2022. The containers are in the same location as in satellite imagery captured on April 15, 2022. © 2022 Carl Court/Getty Images

Human Rights Watch saw at least 11 containers of the same dimensions and color in storage at a Ukrainian government facility 20 kilometers away in Izium.

Human Rights Watch also observed the rocket motor section of a Tochka missile and multiple unexploded 9N24 submunitions in Kunie village, which two residents said they personally had moved a month earlier from where they had struck about a kilometer away. Based on an analysis of the remnants, it appears that the Tochka missile with the cluster munitions warhead did not function properly. Thermal damage on portions of the weapon indicate damage by fire that did not result from the normal functioning of the missile. The same two residents said that they saw five fire extinguishers at the site where they found the remnants.52 Human Rights Watch was unable to verify from where this missile had been fired.

A dozen local residents told Human Rights Watch that Russian forces were in the Kunie area from the first days of the invasion in late February. By early March, they were occupying the site where the container remnants were found. Residents also described continuous Russian military activity in the area, including the movement and repair of vehicles, as well as the firing of munitions from inside and around the village. One resident said that launches from the area became more intense in April.53 Two other residents said that the Russians fired from the fields around the area and then returned to the area of the facility.54 “They didn't fire anything from here, they were living here but firing from the fields around,” one man who requested anonymity said.55

Three residents said that they saw Russian vehicles consistent with those associated with the Tochka missile system, including, in some cases, those used to launch and load the missile, as well as the long, green rectangular containers.56 One man who used to work at the facility where Human Rights Watch found the container remnants said that he could see the Russian forces there from the nearby school. “They didn’t let people come here,” he said. “They were loading and reloading Tochka-U’s here. …They were reloading [at the facility], and then would drive into the fields and forests nearby and fire from there. I heard numerous launches where they would drive out from here, and then fire, then drive back.”57

Taken together, this evidence strongly indicates that Russian forces had Tochka launch vehicles, its associated missile transport equipment, and Tochka missiles in the area around Kunie village around the time of the attack in Kramatorsk, and that Russian forces regularly launched attacks from positions around Kunie during this period.

In addition, Human Rights Watch verified two videos recorded in Gomel region, Belarus, and posted to social media on March 30, 2022, that further indicate Russian forces' possession of the Tochka missile system. One of the videos shows six 9P129-1M Tochka launch vehicles. In the other video, nine boxes consistent with the Tochka missile transport container are visible in the back of five Kamaz transport vehicles traveling in the same convoy.58 Human Rights Watch was not able to independently determine when these videos were recorded. In both videos, vehicles have a "V" symbol painted on them – one of the symbols that the Russian military has used to designate equipment for operations in Ukraine since February 24, 2022. In July, open-source researchers, in videos confirmed by Human Rights Watch, identified two of the same 9P129-1M vehicles in Ukraine due to their specific markings and camouflage patterns. One was seen in Pryazovske, Zaporizka region, and the other in the Luhanska region.59

A video posted to social media on March 30, 2022, shows nine boxes consistent with the Tochka missile container in the back of five Kamaz transport vehicles traveling in a convoy along with 9P129-1M Tochka launch vehicles in Gomel oblast, Belarus. © 2022 Belarusian Hajun Project via Twitter

A Laws-of-War Violation and Apparent War Crime

The armed conflict between Russia and Ukraine is governed by international humanitarian law, known as the laws of war, which can be found in the Geneva Conventions of 1949, the First Additional Protocol to the Geneva Conventions (Protocol I), and customary international law. The laws of war prohibit deliberate attacks on civilians and civilian objects, attacks that cannot discriminate between combatants and civilians, and attacks that could be expected to cause disproportionate civilian harm compared to any concrete military gain.

Russia’s attack on the crowded Kramatorsk train station was unlawfully indiscriminate. Railroad tracks and train stations are used by armed forces for military purposes and therefore can be lawful military targets. However, Human Rights Watch found no evidence that the Kramatorsk station was at the time of the attack being used for military purposes or that there were Ukrainian forces in the area. Airstrikes or artillery attacks on objects where there is no military objective are indiscriminate.

Human Rights Watch reviewed 26 videos and photos taken just before and during the attack and saw no one wearing military uniforms and no military vehicles or military equipment at the station or in the area west of the tracks. One volunteer worker who spent several weeks at the station prior to the attack said that each day he saw at most 20 military personnel in total who would come to drop off their family members for evacuation.60 He and other station workers said that in the days before the attack, some members of Ukraine’s territorial defense forces were helping the station authorities and police coordinate the thousands of people who would arrive to evacuate each day.61

Human Rights Watch found some evidence of possible minimal military use of the station and nearby rail network at the time of the attack. Two people said that on the morning of April 8 they observed a train at the station carrying scrap metal, what one said appeared to be “what was left from military machinery.”62 The train was at the station at 8 a.m. and left before the attack, heading north.63 The other man said that prior to 10 a.m. he observed a train, about 10 platform cars in length, carrying “broken and damaged military machinery,” including vehicles without wheels or tracks that appeared to be scrap.64 Videos filmed by Alexy Merkulov and reviewed by Human Rights Watch that were recorded just after 10 a.m. did not show this train, but showed a train with shipping containers.65 Another cargo train can be seen stationary in the distance but without any visible scrap metal or damaged military machinery.

Even if this use of the station and railroad facilities at Kramatorsk was for military purposes, the April 8 attack would have been unlawfully disproportionate. Attacking forces are obligated to take all feasible precautions to minimize civilian harm. Bombing a train station in the morning when it was crowded with civilian passengers, families, and station workers, rather than late at night when it would have been far less crowded, demonstrates a disregard for civilian life. Killing dozens of civilians at a train station to carry out an attack on damaged military materiel would likely be a disproportionate loss of civilian life and property compared to any anticipated military gain.

Finally, the attack on Kramatorsk station was indiscriminate because of the weapon used. Although neither Russia nor Ukraine are parties to the 2008 Convention on Cluster Munitions, which bans these weapons, their use is widely considered to be a violation of international humanitarian law because they cannot discriminate between combatants and civilians, and because of the long-lasting danger to civilians from unexploded submunitions.66

Serious violations of the laws of war committed by individuals with criminal intent – that is, deliberately or recklessly – are war crimes. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Military commanders and civilian officials may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.

Directing an attack against civilians or civilian objects or launching an attack knowing that the incidental loss of civilian life is clearly excessive compared to the concrete and direct military advantage anticipated, is a grave breach of Protocol I67 and a war crime under the Rome Statute of the International Criminal Court.68 An indiscriminate attack, including the use of cluster munitions in populated areas, is a war crime as a matter of customary international humanitarian law.69

In the days prior to the cluster munition strike, local officials made repeated public announcements about the evacuation of civilians from the Kramatorsk train station. The use of aerial surveillance would also have uncovered the crowds of people at the station. Russian commanders responsible for the attack and the military unit involved should have known that a large number of civilians would likely be at the station at the time of the attack on April 8.

During visits to the train station and the surrounding area between May 14 and 24, Human Rights Watch observed a Ukrainian military base about 350 meters southeast of the station and another military base about one kilometer north of the station. It is unclear whether these military positions were present on April 8. The Russian government, which has denied carrying out any attacks in Kramatorsk on April 8, did not claim to be attacking these bases and accidentally striking the train station.

The unlawful nature of the Kramatorsk attack, the evidence of a large civilian presence without a significant military objective, and the use of an inherently indiscriminate weapon indicate that the Russian military commanders and personnel who ordered and carried out the attack were committing a war crime.

Mourning the Dead, Awaiting Justice

The Ukrainian Ministry of Defense said on April 14, 2022 that 59 people were killed in the attack on the Kramatorsk train station, including 7 children.70 Authorities later revised this figure to 61 people killed.71 Based on interviews with hospital officials, morgue workers, relatives and friends of the victims, and officials from the Ukrainian prosecutor’s office and security services, Human Rights Watch believes that at least 58 civilians were killed. Ukrainian officials investigating the attack told Human Rights Watch that the real number of victims may be higher, given the challenges in identifying partial remains. To Human Rights Watch’s knowledge, all of those killed were civilians. Researchers visited the burial sites of four victims of the attack.

Human Rights Watch also verified and analyzed 99 photographs and videos recorded just after the attack and matched the locations of the dead and wounded in these images with five locations where submunition impact sites and fragmentation spatter were found.72

Most of the bodies of the dead were taken to the city’s main morgue at Hospital No. 3. Two morgue employees told Human Rights Watch that they initially received 40 bodies, which were subsequently taken by a military refrigerator truck to Dnipro. The morgue then received 8 bodies between 10 and 15 days after the attack from Dnipro.73 They were all buried in cemeteries in Kramatorsk. Another 10 bodies were reportedly taken to the cities and towns from which the people came for burial.

A soldier who works as an ambulance driver said that he helped transport bodies to the morgue at Hospital No. 3 after the attack, and that he personally saw 18 bodies at the morgue that had been returned from Dnipro.74 One of the bodies was that of a young woman whose parents he met when he carried her body into the morgue. The soldier said the parents were distraught and told him how their one wish was for their daughter to be buried in a wedding dress, a local custom for unmarried young women. The young woman’s mother asked him to call a wedding dress shop to order the dress. He did, and the shopkeeper apparently replied, “Are you kidding me? We're in the middle of a war.” But when he explained the situation, the shopkeeper understood, and the family was able to get a dress.75

A worker at the morgue described the difficulties she faced trying to prepare the young woman’s body for burial: “[She] had no limbs, and cuts over her stomach. She was in three pieces and in two body bags… I powdered her cheeks and put the dress on top of her. She was in three pieces, so it was impossible to put the dress on her normally.”76

Alina Kovalenko’s mother, Tamara, was also among the bodies taken to the morgue at Hospital No. 3. Alina described her mother as a retired electrical engineer who won awards for her excellent work and lived most of her life in Kramatorsk. Alina said that from the spring to the fall, her mother would spend much of her time in the garden: “She loved planting flowers. She had so many roses of so many different colors.”

Tamara Kovalenko in her garden in the summer of 2018 surrounded by rose bushes. Image courtesy of Alina Kovalenko © 2018 Private

Like many of the family members of those killed in the April 8 attack, Alina couldn't come home to bury her mother. Instead, she asked a friend to help. On April 19, Tamara was buried next to Alina’s father. Her grave, along with the thousands of other new graves dug in cemeteries across Ukraine since this war started, is distinguished by the recently dug earth and a freshly painted sign.

The grave of Tamara Kovalenko in Kramatorsk. © 2022 Human Rights Watch

Like so many others who lost family members, Alina wants to see justice. It won't bring her mother back, she said, but she wants those responsible for this horrendous attack to be held to account.

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[1] Url: https://www.hrw.org/video-photos/interactive/2023/02/21/death-at-the-station/russian-cluster-munition-attack-in-kramatorsk

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