Is the morale and will of the people a lawful target under International Humanitarian Law?
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Authors: Dr. Gregory P. Noone and Sindija Beta (PILPG) and Eric Leikin, Sue Ng, Sofia Svinkovskaya and Nataliia Kichuk (Freshfields Bruckhaus Deringer)
Introduction
Over the past sixteen months, the Russian Federation’s full-scale invasion of Ukraine has been marked by its frequent targeting of civilian objects, resulting in over 24,000 reported civilian casualties in Ukraine to date.
The Russian Federation’s attacks on civilian targets appear to be aimed at eroding political and public support within Ukraine for the war, and degrading the country’s will to defend itself. This method of warfare – often described throughout history as “strategic bombing” – is not unprecedented, and has previously been resorted to by numerous wartime leaders, starting with the Italian General Giulio Douhet in the 1920s and then, most prominently, by the belligerents on both sides during World War II. Put simply, the military tactic of strategic bombing seeks to target civilians, residential areas or vital civilian infrastructure (also known as “civilian objects”) in a deliberate attempt to undermine the morale and will of the people.
Modern warfare is, however, not unregulated. The international legal order has evolved significantly from the time of the First and Second World Wars, the latter resulting in over 45 million civilian casualties, to establish clear rules on which activities may and may not be conducted during war time, also known as International Humanitarian Law or the Law of Armed Conflict.
As explained below, the Russian Federation’s attacks on civilians and civilian objects, which appear to deploy the same strategy of “strategic bombing,” contravene established rules and principles of modern International Humanitarian Law.
International Humanitarian Law and the rules of warfare
As a result of the atrocities inflicted on the civilian population in World War II, new international treaties were created with specific rules for the protection of civilians during times of war. In 1949, four new Geneva conventions were adopted, three were updated and improved versions of previous Geneva Conventions, however one was specifically developed for the protection of civilians during war time (Geneva Convention (IV)). These four 1949 Geneva Conventions were further supplemented by the 1977 Additional Protocol I (AP I), and the 1977 Additional Protocol II (AP II).
These instruments established the prohibition that it is never permissible to target civilians. For instance, Article 51(1) of AP I provides for the general protection of the civilian population from the dangers from military operations. Moreover, Article 51(2) of AP I makes clear that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are also prohibited. Any attack on civilians would further constitute a “grave breach” (i.e. a particularly serious category of violations) under Article 85(3) of AP I. Additionally, it is also impermissible to attack civilian objects (such as housing complexes, places of worship, schools) as they do not make an effective contribution to the military effort or offer a definite military advantage (in other words, they do not constitute military objectives).
The cardinal nature of these principles is recognized not just in the treaties but also under customary international law, which are the rules that states have accepted as binding among themselves. Of note, the International Court of Justice in the Advisory Opinion on the Legality of the Threat of Nuclear Weapons has affirmed that it is an “intransgressible principle of international customary law” that states must never make civilians the object of attack and must consequently, never use weapons that are incapable of distinguishing between civilian and military targets. The International Committee of Red Cross has also concluded in its extensive Customary International Humanitarian Law study that the principles of distinction between civilians and combatants, civilian objects and military objectives, and the prohibition against indiscriminate attacks have achieved customary status.
All states must abide by these customary rules. The Russian Federation, both as a signatory to Geneva Convention (IV) and AP I, and in any event as a participant in the international order, is bound to abide by the protections accorded to civilians. In October 2019, the Russian Federation had reportedly sought to withdraw from AP I. There is some uncertainty as to the scope of Russia’s withdrawal from AP I. The Kremlin’s announcement suggests that the Russian Federation was seeking to withdraw from the jurisdiction of the International Fact-Finding Commission (a body tasked to investigate allegations of violations of International Humanitarian Law) while Western media suggests that the withdrawal was from the entire AP I altogether. Regardless of the Russian Federation’s intent and the scope of its withdrawal, it remains, as with all states, bound to abide by the customary law which renders it unlawful to target civilians.
The Russian Federation’s past practices with strategic bombing
This is not the first time in recent history that the Russian Federation has deliberately targeted civilian populations during military campaigns. During the First and Second Chechen Wars in the 1990s, Russian artillery and air forces targeted Chechnya’s capital, Grozny, in the heaviest bombing campaigns in Europe since the Second World War.
In Syria, the Russian Federation and its allies have carried out numerous attacks on civilian infrastructure, namely hospitals, schools and markets – places where regular civilians seek care, education, medical assistance, and food. During the bombing campaign of Aleppo in September and October 2016 alone, over 440 civilians were reportedly killed as a result.
The current strategy of attacking civilians being pursued in Ukraine today, thus parallels campaigns previously carried out in Chechnya and Syria just to name a few.
The Russian Federation’s current attacks on civilians in Ukraine
In April 2023, the United Nations Office of the High Commissioner for Human Rights (OCHR) recorded over 22,734 civilian casualties in Ukraine, with many more likely yet to be reported. According to this report, in April 2023 alone, 93% of civilian casualties were harmed by “explosive weapons with wide area effects.” Between October 2022 and January 2023, the OCHR reported that there were at least 116 civilians killed and 37 injured as a result of Russian strikes on critical energy infrastructure, causing emergency blackouts, and crippling access to water, heat or electricity during the cold winter months. At least 107 medical facilities and 179 educational facilities were damaged or destroyed as a result of Russian bombings.
The Russian Federation categorically denies any wrongdoing. In February 2022, the Kremlin stated that Russian armed forces neither threatened civilians nor struck civilian objects. Since then, Russian officials either do not acknowledge Russia’s attacks on civilian and critical infrastructure at all, attempt to “justify” them, or deny them altogether. Specifically, the Russian Federation’s narrative revolves around claims that the Russian military uses “high-precision weapons,” which “exclude any attacks on civilian infrastructure,” or justifications that Ukrainian forces use civilian objects for military purposes, or that if the critical civilian bombing targets can be classified as “related to military potential” they are “subject to strikes.”
However, a closer inspection of specific incidents strongly suggests that such justifications do not stand up under scrutiny.
For example, one of the deadliest civilian attacks took place on March 16, 2022, against the Mariupol Drama Theatre, a designated gathering place for people that had lost their homes, which was sheltering hundreds of civilians at the time. While Russia’s Foreign Ministry denied this attack by declaring that “Russia’s armed forces don’t bomb towns and cities,”the Ukrainian authorities initially stated that at least 300 people were killed as a result of the strike, with subsequent independent investigations estimating 600 victims.
A few months later, the Russian military carried out a missile strike in the Odessa region on July 1, 2022, that impacted an apartment building and killed at least 21 civilians, which was soon followed by the bombing of an apartment complex in Chasiv Yar on July 9, 2022, killing 48 people. On January 14, 2023, an apartment building in Dnipro was hit during another missile attack, killing at least 40 people. On April 28, 2023, a Russian missile struck a nine-story residential building in Uman, killing 23 people. The aforementioned attacks are but a few examples that cannot be justified as creating a military advantage for the Russian Federation.
When commenting on the November 2022 attacks on Ukraine’s power grid, Putin’s press secretary, Dmitry Peskov stated that the attacks were the result of Ukrainian government’s refusal to negotiate with Russia: “the unwillingness of the Ukrainian side to settle the problem, to start negotiations, its refusal to seek common ground, this is their consequence.”Peskov further noted that“the leadership of Ukraine has every opportunity to bring the situation back to normal, has every opportunity to resolve the situation in such a way as to fulfill the requirements of the Russian side and, accordingly, stop all possible suffering of the local population.” Taken on its face, this statement appears to acknowledge the Russian Federation’s pursuit of the strategic bombing strategy and its intent to effectively bomb Ukraine’s civilian population “into submission.”
The Russian Federation’s choice and use of weapons in this war is also in breach of International Humanitarian Law, as summarized above by the ICJ Advisory Opinion, which requires that states never use weapons that are incapable of distinguishing between civilian and military targets. Numerous independent reports record the use of indiscriminate weapons by the Russian military in civilian populated areas (see Report of the Independent International Commission of Inquiry on Ukraine, Cluster Munition Monitor 2022 and report of the Human Rights Watch). These include cluster munitions which cannot be aimed at a specific military target, but rather disperse deadly submunitions over a large territory. Similarly, the recent alleged usage of incendiary weapons (munitions that produce fire through a chemical reaction and inflict exceptionally severe injuries) constitutes further evidence that Russian forces are acting in disregard for the civilian population, causing widespread and disproportionate harm to Ukrainian civilians.
In sum, the Russian Federation has carried out a consistent policy of striking civilian targets in Ukraine, repeatedly bombing civilians and civilian infrastructure. Based on all available evidence, these attacks do not – and cannot have been primarily designed to – degrade the military capabilities of the Ukrainian army. Rather, these strikes appear to be consistent with the tactic known as “strategic bombing,” designed to degrade the morale and will of the Ukrainian people to continue the war effort, and to put pressure on the Ukrainian government to enter into negotiations with the Russian Federation.
Conclusion
In modern times and drawing from the painful lessons of the previous World Wars, the international community has decided that it is never permissible to aim military strikes against civilian targets – nor against the morale and will of the people as a whole. The Russian Federation’s deployment of “strategic bombing” attacks on Ukrainian civilians and its use of indiscriminate weapons in Ukraine violate these fundamental principles.