Lex specialis derogat generali: simultaneous (complementary) applicability of International Humanitarian Law and Human Rights

Lex specialis derogat generali: simultaneous (complementary) applicability of International Humanitarian Law and Human Rights

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Author: PILPG

Introduction

On March 2, 2022, the UN General Assembly (UNGA) adopted Resolution ES-11/1 on the Aggression against Ukraine, condemning Russia’s invasion of Ukraine and calling on all involved to “respect strictly the relevant provisions of international humanitarian law…and to respect international human rights law.”  Seven months later, the UN’s Independent International Commission of Inquiry on Ukraine reported to the UNGA that “violations of human rights and international humanitarian law” have been committed in Ukraine.

Ukraine has declared the “legal front” to be a “key area of confrontation,” wielding international human rights law (IHRL) and international humanitarian law (IHL) to wage “lawfare” against Russia. As the Russia-Ukraine war enters a new phase in 2023, we try to explain how these two sets of norms interact and how they compete, in order to better understand the legal implications of unfolding events, but also to anticipate the shape that justice will take in the wake of this conflict.

International Human Rights Law (IHRL)

IHRL was born after World War II as the newly formed United Nations adopted the United Nations Declaration of Human Rights (UNDHR).  The UNDHR sets out a broad range of civil, political, economic, social, and cultural rights that nations should strive to uphold.  Although it is non-binding and does not carry any penalties for non-compliance, the UNDHR was the foundation for two binding international treaties adopted in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).  Over the years, IHRL has developed through, treaties, conventions, protocols, declarations, and resolutions adopted by various United Nations and regional bodies, the judicial decisions of international and regional human rights courts and tribunals, and customary international law.

Both Ukraine and the Russian Federation are party to seven of the nine core human rights instruments[1], while Ukraine is also party to the Convention on the Protection of all Persons from Enforced Disappearance.  

While IHRL addresses wide-ranging rights and duties, it does have limitations:

• IHRL has traditionally been understood to be binding only on state parties to international human rights treaties. That said, there is an increasing trend towards extending accountability under IHRL to non-state actors, under certain conditions, such as if a non-state actor has effective control of a territory.

• Many human rights such as the right to freedom of expression, movement and assembly, and the right to privacy, are considered “derogable” – meaning that states can temporarily limit or suspend them. The conditions under which states may do so are strictly defined and include notification according to the procedure set out in the relevant treaty. Any derogation must be strictly necessary and proportionate to achieve a legitimate aim such as protecting national security or public order. Some human rights, such as the right to life, freedom from torture, and freedom from slavery, are considered “non-derogable,” meaning that they can never be suspended or limited.

After Ukraine declared a public state of emergency on February 24, 2022, it notified the UN Secretary General that it was derogating from various human rights under the ICCPR and the European Convention on Human Rights (ECHR) and imposing martial law. In practice this has meant, for instance, that Ukraine has been able to legally ban male Ukrainians aged 18-60 from travelling abroad, notwithstanding provisions on freedom of movement contained in IHRL. Russia has not made any notifications of any derogations.

International Humanitarian Law (IHL)

Unlike IHLR, IHL (also known as the Law of Armed Conflict) applies only in armed conflict.  IHL assumes the use of force and as a result people will die, but seeks to minimize the armed conflict’s humanitarian effects.

IHL as practiced today emerged in the 19th century, most notably with the adoption of the first Geneva Convention in 1864, which addressed the treatment of wounded.  Over time the law has evolved as additional protocols and conventions, including the four 1949 Geneva Conventions related to the treatment of civilians, prisoners of war, sick, wounded, and shipwrecked and their 1977 Additional Protocols, codified further rights and duties. Additional Protocol I supplemented protections for civilians in international armed conflict, while Additional Protocol II expanded on the law related to situations of non-international armed conflict.  Both Ukraine and the Russian Federation are parties to, among others, the four 1949 Geneva Conventions, as well as Additional Protocols I and II.

IHL today protects persons who are not, or are no longer, participating in the hostilities, such as civilians and wounded or captured combatants; bans certain methods and means of warfare, such as weapons that cause unnecessary suffering or fail to distinguish between civilians and combatants; and requires humane treatment of all persons in the power of an adverse party, including prisoners of war and detained persons.  Other important principles include the prohibition of forced displacement of civilians and the targeting of cultural property.

Unlike IHRL, IHL is plainly binding on both state authorities and non-state parties.  It imposes duties on all parties to a conflict, regardless of which party started the conflict, their reasons for doing so, or whether it was started lawfully (jus ad bellum).  Also unlike many rights contained in IHRL, IHL is non-derogable, being considered so fundamental to the preservation of human dignity that the rights and duties therein cannot be suspended or limited under any circumstance.

Lex specialis

The relationship between IHL and IHRL is complex and remains debated amongst international lawyers.  Three sets of views have emerged in this regard: separatist, complementarist, and integrationist.  As the name suggests, the “separatists” take the position that IHL and IHRL are mutually distinct and exist in silos – IHRL applies only in peacetime while IHL applies only during wartime.  Since they had different spheres of application, no question of a conflict arose under this view.  A recent example of policy driven by this view is Russia’s decision to denounce the European Convention on Human Rights, to deflect criticism following its invasion of Ukraine.[2]  The “integrationists” take the diametrically opposite view that IHL is a sub-category part of the broader IHRL field.  Whereas, the “complementarists” represent the middle ground, acknowledging that IHL and IHRL are distinct yet complementary systems of law.

Over time, the complementarist approach has come to reflect the dominant view on the relationship between IHL and IHRL, and has been endorsed by the International Court of Justice (ICJ) and reiterated by different human rights monitoring agencies. This approach advocates that IHL and IHRL have their own unique value and they can, and should be, applied together to achieve the maximum protection of those who cannot protect themselves. Since the protections offered by both fields are similar, their concurrent application should not, in theory, pose problems.  Their concurrent application might, however, lead to issues where there is a conflict between IHL and IHRL. One solution to this problem is found in the principle lex specialis derogat legi generali, i.e., thatthe more specific rule prevails over the more general rule (“lex specialis” in short).  The ICJ has invoked the lex specialis principle when faced with issues where IHL and IHRL appeared to be in conflict.  In its Advisory Opinion on theLegality of the Threat or Use of Nuclear Weapons, the ICJ considered that the test of an arbitrary deprivation of life (where the protection against such deprivation is provided for both under IHL and IHRL but with different tests of “arbitrariness”), should be determined by the applicable lex specialis, namely, IHL, which is designed to regulate armed conduct.  Similarly, in its 2004 Advisory Opinion on theLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ noted that it would have to take into consideration both IHRL, and IHL as lex specialis, in order to decide the issues before it. 

These decisions raised a number of questions regarding the meaning and scope of the lex specialis principle under international law, as well as whether IHRL could be lex specialis and in which situations.  In an extensive 2006 study, the International Law Commission (ILC) suggested that the application of lex specialis is highly fact-specific and that the principle cannot be meaningfully codified (¶119).  One of the difficulties identified by the ILC is the lack of clarity about the difference between “general” and “special.” A rule may be general or special in relation to its subject matter, or with regard to the numbers of actors to whom the rule applies.

Some human rights courts avoid the application of the lex specialis principle and adopt a different approach, illustrating the evolution of international law towards a larger application of human rights in times of armed conflicts. In its January 25, 2023 decision, the European Court of Human Rights (ECtHR) found that it can hear inter-State claims brought by Ukraine and the Netherlands against Russia in relation to Russia’s activities in the eastern territories of Ukraine because Russia had “effective control” over these areas. The court considered that a State is responsible for human rights violations committed by its State authorities on a territory it controls. Ukraine claims that Russia-controlled separatists committed human rights violations in Donetsk and Luhansk. The Netherlands’ claim concerns the downing by Russia of a civilian aircraft in which 298 civilians perished. The ECtHR will determine whether Russia breached the European Convention of Human Rights, particularly with respect to the right to life, prohibition of torture, forced labor, abductions and unlawful arrests in a later judgment. This decision illustrates that the “effective control” test may be used as an alternative criterion to the lex specialis principle, and allow human rights courts to condemn human rights violations committed during armed conflict.

Enforcement of IHRL and IHL

One of the most significant differences between the enforcement of IHRL and IHL is that IHRL provides an enforcement mechanism to those whose basic rights have been violated, while IHL focuses on the domestic and/or international criminal prosecution of those who violate these rights.  Treaty bodies (or “Committees”) regularly monitor the implementation of the core international human rights treaties and decide on complaints brought against States for violations of specific treaties.  Eight[3] of these Committees can receive petitions from individuals who claim that their rights under the treaty have been violated by a State that is party to that treaty, provided that all domestic remedies have been exhausted.  The Committee’s decision serves as an authoritative interpretation of that particular treaty and may contain recommendations for the State party, such as instructions to provide redress to the complainant.  Committees also require a State party found to be in violation of the treaty to provide information on the steps taken to implement the Committee’s recommendations and may keep the case under consideration until adequate measures are taken.

States are under an obligation to investigate violations of IHL and IHRL, and punish those responsible for these violations.  In December 2005, the UN General Assembly adopted GA Resolution 60/147, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” GA Resolution 60/147 requires States to adopt effective legislative and administrative procedures to investigate violations of IHL and IHRL; take action against those allegedly responsible in accordance with domestic and international law; provide victims of IHL and IHRL with equal and effective access to justice; and provide effective remedies to victims, including reparations.  Therefore, domestic courts play a key role in the enforcement of both IHL and IHRL.  Human rights violations occurring during an armed conflict that are not a direct result of hostilities should be resolved by applying IHRL and domestic law.

Domestic jurisdiction is complemented by an intricate system of international and mixed criminal tribunals, which both develop and clarify IHL and IHRL.  At its center is the International Criminal Court (ICC), the world’s first permanent international criminal court, which has jurisdiction over violations of both IHL and IHRL.  The Rome Statute, adopted in 1998, established the International Criminal Court “to exercise its jurisdiction over persons for the most serious crimes of international concern” and noted that it was “complementary to national criminal jurisdictions.”  Currently, 123 countries are State Parties to the Rome Statute of the International Criminal Court.  The International Criminal Court does not have primacy over national courts and may exercise its jurisdiction at the request of the ICC Prosecutor or a State Party only when a State is unable or unwilling to prosecute alleged crimes or criminals over which it has jurisdiction.

Additionally, prompted by specific conflicts around the world that victimized hundreds of thousands of civilians, special ad hoc courts have been set up to prosecute domestic and international crimes.  The UN Security Council has established two ad hoc criminal tribunals to prosecute those responsible for serious violations of IHL – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).  ICTY and ICTR share concurrent jurisdiction with national courts, over which they have primacy. 

Further, the UN has also established hybrid tribunals, which contain elements of both international and domestic jurisdictions (e.g., Special Court for Sierra Leone, Special Tribunal for Lebanon); and special chambers within national courts (e.g., Extraordinary Chambers in the Courts of Cambodia, Serbia’s War Crimes Chambers) in order to prosecute violations of IHL.


Footnotes

[1] The seven human rights instruments are: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Elimination of All Forms of Racial Discriminatio n; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities.

[2] Katharine Fortin, The relationship between international human rights law and international humanitarian law: Taking stock at the end of 2022? 40(4) NQHR 343 at 350.

[3] These include the Human Rights Committee (CCPR), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT), the Committee on Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of Persons with Disabilities (CRPD), the Committee on Enforced Disappearances (CED), the Committee on Economic, Social and Cultural Rights (CESCR), and the Committee on the Rights of the Child (CRC).

The controversy around nuclear weapons

The controversy around nuclear weapons

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Authors: PILPG, Charline Yim, and Marryum Kahloon

As of December 2022, 92 states have signed the Treaty on the Prohibition of Nuclear Weapons (“TPNW”), in which state parties affirm that they “never under any circumstances” will “[u]se or threaten to use nuclear weapons or other nuclear explosive devices.”  The treaty came into force in January 2021 when 50 states ratified it.  In June 2022, the state parties to the TPNW convened their first meeting.  Following that meeting, state parties to the TPNW adopted a declaration in which they confirmed that “[n]uclear weapons are now explicitly and comprehensively prohibited by international law,” and “any use or threat of use of nuclear weapons is a violation of international law, including the Charter of the United Nations.” 

However, none of the states with nuclear weapons or nuclear weapons capabilities (the United States, United Kingdom, France, Russia, China, Pakistan, India, North Korea, and Israel) have ratified the TPNW.  Indeed, as recently as January 2022, the United States, the United Kingdom, France, Russia, and China issued a joint declaration “affirm[ing] that nuclear weapons—for as long as they continue to exist—should serve defensive purposes, deter aggression, and prevent war.”  Thus, while the TPNW is an important step to an international law principle of an absolute prohibition on the threat or use of nuclear weapons, the absence of endorsement by those states that have nuclear capabilities continues to create ambiguity as to whether this is in fact a principle under international law. 

The 1996 advisory opinion issued by the International Court of Justice (“ICJ”) in response to the United Nations General Assembly’s request for an advisory opinion on the question remains the most authoritative statement on the legal status of nuclear weapons under customary international law.

In its advisory opinion, the ICJ concluded that “in neither customary nor conventional international law” was there “any specific authorization” or conversely “any comprehensive and universal prohibition” on the threat and/or use of nuclear weapons.  The ICJ analyzed the question within the framework generally applicable to the use of force under international law, as codified in Articles 2(4) and 51 of the United Nations Charter.  Accordingly, pursuant to Article 2(4) of the Charter, states have a baseline obligation to refrain from using force or the threat of force—including nuclear weapons—against other states.  However, this prohibition is conditioned on the right to act in individual or collective self-defense under Article 51 of the Charter if an armed attack occurs.  Thus, a state may use force or threaten the use of force as an act of self-defense in response to an armed attack.

The right to act in self-defense, however, is not limitless and is restricted by certain principles including necessity, proportionality, distinction, and minimization of suffering.  The principles of necessity and proportionality provide that “self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it.”  While the ICJ did not say that the use of nuclear weapons would never be a proportional act of self-defense (despite submissions to this effect by some states), it “note[d] that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by states believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality.” 

The ICJ also confirmed that rules of international humanitarian law, including distinction and minimization of suffering, apply to the threat and/or use of nuclear weapons.  The principle of distinction requires 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.”  In the case of nuclear weapons, some states argued that “nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives.”  In addition, the principle of minimizing suffering prohibits states from “caus[ing] unnecessary suffering to combatants” and “us[ing] weapons causing them such harm or uselessly aggravating their suffering.”  Any use of nuclear weapons arguably would result in an “enormous” number of casualties “on account of the blast, heat and radiation.”

However, in response, some states objected to the argument that, because they are subject to the law of armed conflict, recourse to the use of nuclear weapons is prohibited.  The United Kingdom, in fact, argued that nuclear weapons could be utilized in a manner compatible with the rules of international humanitarian law:

“The reality . . . is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties.  In some cases, such as the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties.  It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties.”

The United States has similarly concluded that “there is no general prohibition in conventional or customary international law on the use of nuclear weapons, and there is no basis for speculation by the [ICJ] as to the manner in which the law of armed conflict might apply to the use of nuclear weapons in hypothetical future situations.”

Nevertheless, given the nature and effect of nuclear weapons, the ICJ determined that “the use of such weapons in fact seems scarcely reconcilable with respect for” the rules of international humanitarian law.  It, however, ultimately stated that it could not “reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.”  Accordingly, the ICJ appears to have left open the possibility that nuclear weapons could lawfully be used in self-defense, but in extremely narrowly prescribed circumstances. 

In sum, the question of the legal status of nuclear weapons under international law remains unclear and subject to many opposing views.  The ICJ did help to clarify that nuclear weapons may only be legitimately utilized in self-defense and in extremely narrowly prescribed circumstances.  Yet many unanswered questions remain.  In fact, one may find it difficult to imagine the narrowly prescribed circumstances where a state could employ nuclear weapons in self-defense without violating the principles of necessity, proportionality, distinction, and minimization of suffering. Moreover, in the event a state is found to have violated international law by resorting to the use of nuclear weapons, it is unclear what remedies may be available.  For example, seeking the enforcement of an ICJ judgment if the state refuses to comply pursuant to Article 94 of the UN Charter may be futile.  The five permanent members of the Security Council (the United States, United Kingdom, France, Russia, China—i.e., five of the nuclear weapon states) would effectively be immune from enforcement as the permanent members have the

Photo by Ilja Nedilko on Unsplash

Conceptualizing IHL: Levée en Masse & Perfidy

Conceptualizing IHL: Levée en Masse & Perfidy

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Authors: PILPG and Weil, Gotshal & Manges

This blog post discusses two distinct legal concepts—perfidy and levée en masse.  After examining the meaning of and relationship between the two, it is clear that these are complimentary concepts and that participation in a levée en masse is not a perfidious act. In addition, we note that in certain cases, Ukrainian civilians who participated in hostilities following the Russian invasion were entitled to combatant status as a result of a levée en masse and such participation, absent specific perfidious acts, did not constitute perfidy.

I.  Levée en Masse

a) Definition

Long recognized as a historical concept dating back to the French Revolution, a levée en masse exists when inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resistthe invading forces, without having had time to form themselves into regular armed units. These inhabitants are required to carry arms openly and respect the laws and customs of war. Though initially recognized in the Lieber Code (1863) and the Brussels Declaration (1874), Article 4 of the 1949 Third Geneva Convention codifies levée en masse as defined above.      

  b) Legal Consequences

Should a levée en masse exist, the participating civilians enjoy combatant status even when not part of regular armed forces or an organized militia. Combatant status provides participants with critical protections and immunities. For example, combatants are immune for prosecution for engaging in war-related hostilities, meaning that they may kill or wound enemy combatants in the course of an armed conflict so long as the individual did not engage in otherwise unlawful battlefield conduct. Conversely, a civilian participating in a levée en masse is entitled to Prisoner of War protections if captured, and as such, enjoy the protections outlined in the 1949 Third Geneva Convention Relative to the Treatment of Prisoners of War.        

c) Ukrainian and Russian Recognition

The concept of levée en masse is applicable to Russia and Ukraine through the Geneva Conventions and their own respective military manuals. Specifically, Russia provides that participants in a levée en masse enjoy Prisoner of War status upon capture and defines a levée en masse in nearly identical terms to the Geneva Conventions. Likewise, Ukraine’s International Humanitarian Law Manual (2004) states that Prisoner of War status is provided to, among others: inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units (provided they carry arms openly and respect the rules of international humanitarian law). Therefore, both international law as well as Russia and Ukraine’s own military practice serve as the legal basis for the application of levée en masse.        

d) Interpretive Challenges

The key issue in the context of the war in Ukraine will be whether and when did a levée en masse arise, and if one did exist, when it ended. Although the concept of levée en masse is widely recognized, there are few recent cases to analyze as there are no formally recognized instances of a levée en masse since World War II.  To determine whether a levée en masse exists then, one must strictly interpret the definition. For example, regarding the concept’s temporal component, the Geneva Conventions’ Pictet Commentaries note that a “levée en masse may only exist for a brief amount of time. . . during the actual invasion period.” Once that period ends, the citizens must cease hostilities and either must join military forces or be replaced with lawful combatants. Moreover, to determine whether a levée en masse exists, one must answer the fact specific questions regarding whether the area is “occupied” or in the process of being invaded for the purposes of satisfying the definitional requirements under the Geneva Convention.  Therefore, while these determinations are fact specific and open to interpretation, levée en masse circumstances arguably existed when Russia initially invaded Ukraine, but likely ended shortly thereafter.

II.  Perfidy

a) Definition 

Article 37 of Additional Protocol (I) to the Geneva Conventions outlaws perfidy as a war crime. The prohibition of perfidy provides that: “It is prohibited to kill, injure or capture an adversary by resort to perfidy.  Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.”  Mere deceptive techniques, such as camouflage, decoys, and misinformation that do not otherwise violate international law do not constitute perfidy. Rather, perfidious activity includes feigning surrender, feigning incapacitation by wounds or sickness, or improperly engaging in activity to invite confidence with respect to an applicable legal protection.  In essence, unlawful perfidy is a false, deliberate claimto legal protections under the rules of war to cause an enemy’s death, injury, or capture.        

b) Source of Law

While outlawed under the Geneva Conventions, both Russia and Ukraine also recognize the prohibition of perfidy. Russia notes in its Military Manual that perfidy is a prohibited method of warfare, and its Regulations on the Application of International Humanitarian Law state that “[t]he prohibited methods of warfare include. . . resorting to perfidy.” Similarly, Ukraine’s International Humanitarian Law Manual states that perfidy, or deceit of an adversary by means of perfidy, is prohibited. Therefore, the Geneva Conventions, Russia, and Ukraine each recognize the prohibition of perfidy.        

c) Legal Consequences

An individual who engages in perfidious activity in Ukraine would be in violation of both international and domestic law. As noted above, perfidy is prohibited under the Geneva Conventions. Moreover, Ukrainian Criminal Code provides for imprisonment for violations of binding international law of armed conflict. Therefore, any individuals engaged in perfidious acts in Ukraine could be subject to prosecution both internationally and domestically.        

d) The Question in Ukraine

The key issue in Ukraine will be whether Ukrainian citizens who engaged in hostilities were committing perfidy, particularly by remaining in civilian clothing without military uniforms or distinct insignia or markings. To assess whether an individual is engaged in a perfidious activity, a citizen may not feign civilian non-combatant status and then engage in hostilities with enemy soldiers. But, as noted in the context of a levée en masse, civilians may receive combatant status if, among other requirements, those civilians carry arms openly. Therefore, while any inquiry would be fact specific, simply engaging in hostilities without wearing military uniforms or a distinct insignia as part of an organized militia is insufficient on its own to classify an act as perfidious.

III.  Relationship Between Levee en Masse & Perfidy

In a scenario where a Ukrainian citizen engages in hostilities against Russian military members, the crucial question is whether such civilian acts provide for the protections of a levée en masse or constitute perfidy, or whether either concept is even applicable. The link between the two concepts is evident in this context—because perfidy is outlawed but participating in a levée en masse is protected, if an individual’s act fits the definition of one, it necessarily cannot fit the other.

Early codifications of both concepts provide insight to how the two concepts interrelate in this context. First, the Lieber Code and Brussels Declaration did not require the open carrying of arms in the definition of levée en masse, but did outlaw perfidy, meaning that the later “inclusion of open carriage of arms [in the Geneva Convention definition] was a logical extension of the requirement that regular armed forces not engage in perfidious acts.” [1] Therefore, if an individual fails to carry arms openly, that individual is not participating in the levée en masse, and could be subject to accusations of perfidy. Alternatively, if the individual does carry arms openly, and the other requirements for a levée en masse are present, then the individual will not have engaged in perfidious activity.

Moreover, when defining perfidy, the drafters of the Geneva Conventions struggled over the inclusion of one particular example directly relevant to levée en masse—feigning civilian status as codified in Article 37(1)(c).  In response to several countries’ concerns, as well as advocacy for guerrilla combatants, drafters required that civilians carry arms openly (a requirement of levée en masse) to avoid the accusation of perfidy under a different section of Additional Protocol (I) to the Geneva Conventions.  Therefore, the wearing of civilian clothes does not amount to perfidy if combatants fulfill conditions of legitimacy as set forth in Article 44(3), namely, open carrying of arms during military engagement and deploying preceding the attack.

In conclusion, a fact specific analysis would be necessary, but if a Ukrainian citizen is engaging in a lawful levée en masse pursuant to the Geneva Conventions, which would include openly carrying arms (but does not include any military identification), that individual enjoys the protections associated with participating in a levée en masse.  Accordingly, while engaging in a lawful levée en masse, that individual did not engage in a perfidious act by remaining in civilian clothing. 

[1] Emily Crawford, Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict, 19 J. Hist. Int’l. L. 329, 344 (2017).

The illegality of conscription of Crimean Tatars, and other Ukrainian civilians, into the Russian army in occupied territories

The illegality of conscription of Crimean Tatars, and other Ukrainian civilians, into the Russian army in occupied territories

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Authors: PILPG and Morrison Foerster

Since its unlawful invasion and annexation of the Crimean Peninsula from Ukraine in 2014, Russia began conscripting Ukrainian civilians to serve in its armed forces in violation of well-established international law.  These civilians are facing an impossible situation: join the Russian armed forces or face criminal punishment at the hands of the Russians.  In 2019, the United Nations Office of the High Commissioner for Human Rights reported that Russia forcibly conscripted approximately 18,000 Ukrainian civilians living in Crimea to serve in the Russian Armed Forces.  This unlawful practice has continued and expanded as Russia escalated its war against Ukraine into a full-scale invasion in February 2022.  In September 2022, after a series of military setbacks, Russia launched a new campaign deliberately targeting the Crimean Tatars to forcibly involve them in Russia’s war effort.  As many are already aware, this is not the first time that Russia has violated international law by compelling Crimean residents to serve in its armed forces.  However, the problem is only getting worse.  In its most recent report, the UN documented an additional 65 cases of forced conscription by Russian groups.  Russia’s forced conscription of Ukrainian civilians is a grave breach of international law that must be stopped and punished.

Russia Has Engaged in a Persistent Effort to Conscript Ukrainian Civilians from Occupied Territories in Ukraine

In March 2014, Russia illegally annexed Crimea after its invasion and held an illegitimate referendum in violation of Ukrainian law (art. 73 of the Constitution of Ukraine unambiguously states that “[i]ssues of altering the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum”).  Russian sources claimed that 96.7 percent of the civilians voted to join Russia despite the fact that all voting occurred at polling places under the gaze of Russian armed forces; in the absence of any credible international observers; and with an admission by Russian journalists that they were allowed to vote.  In fact, two months later, a member of Putin’s Human Rights Council stated that turnout had been closer to 30 percent, with only half voting to join Russia.  After this sham referendum, Russia held numerous conscription campaigns for Crimean men each fall and spring over the last eight years.  The Russian government has supported these conscription campaigns with various forms of propaganda.  In 2019, Russian authorities advertised widely for enlistment in Sevastopol, Simferopol, and other cities in Crimea.  This propaganda also targeted schoolchildren in Crimea.  The current campaign appears to be using similar tactics. 

Russia is imposing criminal penalties on those who do not comply.  Between 2017 and 2019, Russia has filed 71 criminal draft evasion cases and obtained 63 guilty verdicts, but the true number is likely higher due to the fact certain court documents may be sealed.  In turn, this has led to Ukrainian men in occupied territories attempting to flee or go into hiding to avoid being conscripted into the Russian armed forces and avoid the legal consequences for refusing to join the occupier’s army.  

Unfortunately, these tactics are working. After examining a preliminary list of prisoners of war captured by Ukraine, the Crimean Human Rights Group reported on March 5, 2022, that it had identified ten young Crimean conscripts and one Crimean contract soldier, with additional documents left to review.  According to news reports, at the end of September, Russia had mobilized 2,000 people from Crimea and were prioritizing the conscription of Crimean Tatars.  Alim Aliev, a founder of rights organization Crimea SOS, estimated that 80% of summons to the Russian army in Crimea had been issued to Crimean Tatars.

Russia’s Forced Conscription of Ukrainian Civilians, Including Its Use of Propaganda to Support that Effort, Is a “Grave Breach” of Long-Standing International Law

The international community has long identified the forced conscription of civilians by an invading or occupying force as a violation of international law.  In 1949, the international community agreed to the Geneva Conventions, which were intended to address some of the horrors witnessed during the Second World War.  These Conventions govern how nations conduct themselves during an armed conflict.  The Fourth Geneva Convention, which addresses the protection of civilians during an armed conflict, expressly states that “[t]he Occupying Power may not compel protected persons to serve in its armed or auxiliary forces.” The Fourth Geneva Convention also prohibits the use of “pressure or propaganda [] aim[ed] at securing voluntary enlistment,” thereby providing even more protection to civilians than merely outlawing the act of conscription itself.

The prohibition on conscription in the Fourth Geneva Convention is only the most recent iteration of a long-standing rule in international law against forcing an individual to serve in the enemy’s armed forces.  For example, in the 1907 the Hague Convention (IV) respecting the Laws and Customs of War on Land, Article 52 states that “[r]equisitions in kind and services … [shall] not to involve the inhabitants in the obligation of taking part in military operations against their own country.”  Further, Article 44 provides that “any compulsion of the population of occupied territory to take part in military operations against its own country is prohibited.” 

The international community affirmed its intention to enforce these rules when it enacted Article 2 of the 1993 Statute for the International Tribunal for Yugoslavia, and the 1997 Rome Statute of the International Criminal Court (ICC), both of which outlaw conscription from occupied territories.  For example, pursuant to Article 8(2)(a)(vi) and (b)(xv) of the 1998 ICC Statute, “compelling a prisoner of war or other protected person to serve in the forces of a hostile power” and “compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war” constitute war crimes in international armed conflicts.  This practice is also condemned by militaries across the world in their military manuals, including Russia’s.  Under Russia’s Military Manual, it is prohibited as a method of warfare “to compel persons belonging to the enemy party to participate in hostilities against their country.”

In fact, the rule against conscription is so important and well-established that its violation constitutes a “grave breach” of international law.  The Geneva Conventions identify only a limited number of rules—ones that are considered particularly serious violations of the fundamental object and purpose of treaty—as “grave breaches,” and that includes Article 51’s prohibition of conscription.

The consequences for a grave breach of international law are severe. The Geneva Convention requires that a grave breach be prosecuted by any party to the treaty, no matter whether they were a victim.  In other words, the Geneva Convention provides all parties with universal jurisdiction to arrest and prosecute violations of this rule.  The international community has a history of doing exactly that.  In 1949, the U.S. Military Tribunal at Nuremberg issued a decision in the Weizsaecker case holding that “pressure or coercion to compel [prisoners of war] to enter into the armed forces obviously violated international law” and that the conscription of foreign nationals into the armed forces of a belligerent was a crime against humanity. 

Regardless of Its Lawfulness, Russia’s Purported Annexation of Ukrainian Territories Does Not Justify the Conscription of Civilians in Those Areas

In September 2022, Vladimir Putin signed a document claiming to annex four Russian-occupied Ukrainian territories: Donetsk, Luhansk, Zaporizhzhia, and Kherson.  Russia based this annexation on a “referendum” held in those regions, similar to the vote Russia orchestrated in Crimea in 2014.  However, far from being a free and fair election, the “votes” claimed by Russia in favor of the proposed secession of these territories were obtained by force.  The international community immediately rejected this purported referendum results.  The EU stated that it “does not and will not recognise the Russian illegal annexation of the Autonomous Republic of Crimea and city of Sevastopol. It also firmly rejects and unequivocally condemns the illegal annexation by Russia of Ukraine’s Donetsk, Luhansk, Zaporizhzhia and Kherson regions. All these territories are and remain Ukraine.”

Regardless of the legitimacy of its annexation claims, international law still classifies Russia as an “occupying power” in this armed conflict because their forces are still an occupying power in these territories.  Under the Fourth Geneva Convention, agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights. (GC IV, art.47 and 8). 

Here, the prohibition against conscription applies because the Russian armed forces are occupying areas of Ukraine and attempting to assert authority over Ukrainian citizens, ostensibly based on the result of the referendum vote.  But the mere fact that Russia felt compelled to hold a referendum shows that it considered these territories to be Ukrainian and that additional steps were necessary before it could assert its authority.  The protections of international humanitarian law cannot be circumvented by a mere assertion by Russia that the residents of these territories are Russian nationals. Russia’s continued forced conscription, and use of propaganda, is a grave breach of international law that must be stopped and punished by the international community. 

Conclusion

Russia’s continued efforts to force Ukrainians to fight against their fellow countrymen is a grave breach of longstanding international law.  There is no room for ambiguity; Russian conscription campaigns in Crimea and other occupied territories is unlawful, and this is precisely the type of conduct that the international community has prosecuted in the past. The international community must condemn and seek to stop these unlawful efforts before more Ukrainian citizens are forced to fight their fellow citizens and risk being killed in service to the Russian armed forces.

The Controversy Around Chemical Warfare, Chemical Weapons and Their Prohibition

The Controversy Around Chemical Warfare, Chemical Weapons and Their Prohibition

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Author: PILPG

Introduction

Russia’s invasion of Ukraine has been testing the international legal norms on the use of force and conduct of warfare since day one, and the weaponry employed by Russia is no exception.

Reports have surfaced of three instances, in April, September, and October 2022, in which Russian forces may have deployed chemical munitions in Ukraine, prompting international concern. These Reports have suggested that tear gas may have actually been used. Tear gas is a “riot control agent,” prohibited “as a method of warfare,” and its use may well have been intended to make identification of any chemical agents deployed more difficult or pave the way for use of more lethal chemical agents (see the precedents of Syrian chemical attacks using mixtures of tear gas and nerve agents).  At the same time, state officials and analysts continue to warn of the threat of Russian chemical weapons attacks in Ukraine, either as a false flag attack or in response to the loss of territory in Ukraine. 

Moreover, in April 2022, the UK Ministry of Defense announced that Russia had used white phosphorus (“WP”) munitions in Ukraine’s Donetsk Oblast.  Ukrainian authorities have also accused Russia of deploying WP bombs in the suburbs of Kyiv and at other sites across Ukraine – though some suggest that other weapons with incendiary effects were actually used in these attacks.

This post examines how International Humanitarian Law (“IHL”) regulates the use of chemical weapons, including riot control agents like tear gas, and of WP munitions, and what may be done when the use of such weapons is alleged.

Chemical Weapons – Absolute Prohibition Under IHL

Chemical weapons, including choking, blistering, blood and/or nerve agents, like chlorine or mustard gas, arsine, and sarin, are a particularly gruesome tool of warfare, which cause indiscriminate death and suffering.

In international law, the 1925 Geneva Gas Protocol and the 1993 Chemical Weapons Convention (“CWC”) set forth a prohibition on chemical warfare. Russia and Ukraine are each Parties to both the 1925 Geneva Gas Protocol (see Ukraine; Russia) and the CWC (see Ukraine; Russia), and thus bound by these instruments. 

The prohibition on the use of chemical weapons, and of riot control agents as a method of warfare, is also considered to reflect customary international law (for chemical weapons; for riot control agents), applicable in both international and non-international armed conflicts.  The use of chemical weapons in both international and non-international armed conflicts is also arguably a war crime within the jurisdiction of the International Criminal Court (“ICC”), pursuant to Article 8(2)(b)(xvii) and 8(2)(e) of the Rome Statute.

The CWC imposes a ban on the use of chemical weapons (as defined in Article II CWC) ‘under any circumstances’, as well as on their development, production, acquisition, stockpiling, transfer, and retention. It also prohibits State Parties from using riot control agents as a method of warfare. The CWC further obliges State Parties to declare and destroy their chemical weapons stockpiles, and destroy or retire the facilities producing them.

Under the CWC, both Russia and Ukraine are subject to a complete ban on the development and use of chemical weapons under any circumstances, and against any targets – military or civilian.  Both states are also prohibited from using riot control agents like tear gas as a means of warfare.

White Phosphorus Munitions – What They Are And Are Not, And How IHL Treats Them

White phosphorus (“WP”) is a toxic, colorless, or whiteish-waxy material manufactured from phosphate rocks, which ignites on contact with oxygen, producing light, thick clouds of white smoke, and temperatures high enough to burn through metal. In military applications, WP is used to illuminate targets, or obscure personnel movement through smokescreens. When deployed as a weapon, WP causes horrific burns.

WP munitions do not squarely qualify either as chemical or incendiary weapons under applicable treaties, namely the 1925 Geneva Gas Protocol, the CWC and the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (see arguments for and against their treaty classification as either type of weaponry). 

First, WP munitions are not among the “asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices” covered by the 1925 Geneva Gas Protocol, since the prime purpose of WP is not to gas, asphyxiate, or poison, but to illuminate or obscure – while their harmful and weaponized side-effect is also not poisonous or asphyxiating, but incendiary.

Second,  WP munitions are not “chemical weapons” under Article II of the CWC, since they are not “specifically designed to cause death or other harm” by means of a “toxic chemical,” which causes “death, temporary incapacitation or permanent harm […] through its chemical action on life processes” (emphasis added). WP instead causes harm to humans through its thermal properties. Moreover, WP munitions are principally designed as obscurants and illuminants, and thus also fall under the carveout of Article II(9)(c) of the CWC on toxic chemicals used for purposes not prohibited under the CWC, namely “[m]ilitary purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare.”

Third, WP munitions are also not “incendiary weapons” under the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (“Protocol III”) to the Convention on Certain Conventional Weapons (“CCW”) – both of which are binding on Russia and Ukraine (CCW: Ukraine; Russia;  Protocol III: Ukraine; Russia).  Article 1 of Protocol III defines incendiary weapons as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons,” while Article 1(b)(i) clarifies that “[i]ncendiary weapons do not include: (i) [m]unitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems” (emphases added).

WP munitions escape classification and regulation under Protocol III because they are “primarily designed” as illuminants and smokescreens, and ‘only’ have incidental (though devastating) incendiary effects. States and NGOs have stressed the need to amend Protocol IIIto cover WP.

WP munitions are also, arguably, not expressly prohibited by customary international law as a category of weapons.

However, despite the fact that IHL does not outright prohibit WP weapons, every use of such weapons may and should be examined for its legality.  Like any other weapon, the use of WP munitions is regulated by the conventional (see Protocol I to the Geneva Conventions) and customary IHL rules, which include the principle of distinction between military objectives and civilian objects and the prohibition of targeting the latter; the prohibition of indiscriminate attacks; the prohibition of area bombardments; the requirement to take all feasible precautions in an attack to avoid and minimize incidental harm to civilians; the principle of proportionality; the prohibition of weapons indiscriminate by nature; and the prohibition of weapons of a nature to cause superfluous injury or unnecessary suffering, even against military targets.

The legality of each instance of use of WP munitions must be assessed against these fundamental principles and rules, and their breach could give rise to international responsibility for Russia, and/or criminal responsibility for war crimes by the individuals carrying out, ordering, or not preventing uses of WP munitions in contravention of the above IHL principles. Indeed, the targeting of civilians or the lodging of indiscriminate attacks and area bombardments with WP munitions could qualify as a war crime under Article 8(2)(b)(i),(ii), or (v) of the Rome Statute.

Potential Responses Under International Law To Use Of Chemical And WP Weapons By Russia In Ukraine

Responses to the alleged illegal use of chemical weapons, riot control agents, and/ or WP munitions by Russia in Ukraine could in principle seek to establish either the international responsibility of Russia as a state, or the individual criminal liability of those involved in deploying such weapons.

First, the international responsibility of Russia as a state for the illegal use of chemical weapons, riot control agents, and/ or WP munitions is unlikely to be brought before the international fora. Neither Russia nor Ukraine has accepted the compulsory jurisdiction of the International Court of Justice (“ICJ”), and thus no contentious dispute concerning possible violations of the CWC, the Geneva Conventions, their Protocols, or customary IHL norms could be brought before the ICJ through that avenue. While the CWC foresees the referral of disputes over its application to the ICJ, this would again require a special agreement between Russia and Ukraine to submit such a dispute to the Court. However, it may be possible to bring allegations of Russia’s illegal use of such weaponry before the ICJ, through a request by the UN General Assembly for an advisory opinion concerning the legality of Russia’s conduct in Ukraine.

The international responses to Syria’s use of chemical weapons may be examined as a potential precedent to apply to the situation in Ukraine.  Following the Assad regime’s 2013 horrific Ghouta attacks, western powers considered a military intervention in Syria, but this was averted through a US-Russia brokered diplomatic solution (the Joint Framework for the Elimination of Syrian Chemical Weapons), which led to Syria joining the CWC and to UN Security Council resolutions outlining Syria’s obligations to declare and destroy its chemical weapons stockpile under the oversight of joint task forces of the UN and the Organisation for the Prohibition of Chemical Weapons (“OPCW”). Syria’s stockpile declarations were seemingly incomplete and the process failed to prevent further chemical attacks, to which the US, UK, and France responded with missile strikes in 2018, reportedly aimed at sites linked to Syria’s chemical weapons program (the legal justification of which under international law has been called into question).

While announcements of “appropriate responses” to a Russian chemical attack have been made, western attacks against Russia akin to those against Syria in 2018 are unlikely.  Moreover, UN Security Council action to address allegations of chemical weapons use by Russia would be ineffective in view of Russia’s veto powers.  Also, it seems that the main steps taken toward Syria in relation to the CWC could not be taken towards Russia, which is already a CWC signatory, and has seemingly destroyed its declared chemical weapons stockpile (as verified by the OPCW in September 2017) – although it has since been accused of non-compliance, through incomplete declarations of its chemical weapons stockpile, and use of the ‘Novichok’ nerve agent in 2018 and 2020.

What could perhaps be employed to prevent a potential chemical weapons attack is the CWC’s verification apparatus. The CWC foresees procedures for State Parties to address doubts about another Party’s compliance with the Convention, including consultations, fact-finding, and the possibility to request a “challenge inspection” of another State Party’s facilities by the OPCW’s Technical Secretariat. Assuming sufficient information about Russian facilities suspected of manufacturing or storing undeclared chemical weapons stockpiles, Ukraine (or any other State Party to the CWC) could request a challenge inspection of said facilities, to locate any such stockpiles and ensure their supervised destruction. Moreover, OPCW inspections of Ukrainian facilities could be requested, to debunk potential false-flag allegations that Ukraine may have chemical weapons as a pretext for Russia to then use such weapons itself.

Second, deployment of chemical weapons, riot control agents and/or WP munitions in Ukraine and in contravention of IHL could give rise to the individual criminal liability of those involved, who could be prosecuted for war crimes before international or domestic fora.

The ICC is the international forum with jurisdiction over war crimes (among other crimes) and  can hold individuals accountable for these crimes and impose penalties, including imprisonment, fines, and forfeiture. The ICC is meant as a court of last resort, operating complementarily to domestic prosecutions. While neither Ukraine nor Russia is a State Party to the Rome Statute, Ukraine has submitted declarations accepting the ICC’s jurisdiction over alleged crimes under the Rome Statute occurring on Ukrainian territory. After a preliminary investigation of Russia’s conduct in Ukraine since 2014, and following the referral by more than 40 states of the current situation in Ukraine to the ICC, investigations, including for war crimes, were officially opened by the Prosecutor on 2 March 2022, and are carried out across Ukraine in cooperation with Ukrainian authorities to document allegations of international crimes for accountability proceedings.

Domestic prosecutions for war crimes are also possible, as long as a state has substantive criminal law provisions covering these crimes, and jurisdiction over them. In the present case, prosecutions could in principle occur before Ukrainian courts (which have territorial jurisdiction), Russian courts (which have nationality jurisdiction over the conduct of Russian nationals in Ukraine), or even before the courts of third states (through the application of universal jurisdiction).

Conclusions

While the international law prohibiting or considerably restricting the use of certain weaponry that Russia has been accused of deploying is generally clear, the avenues available to prosecute such complaints at the international level are less so. With discussions ongoing over the viability of establishing novel international or domestic fora to ensure accountability for Russian conduct in Ukraine, including for war crimes, until these new fora may be established the exploration of legal avenues already available to address Russian unlawful use of weaponry in Ukraine may be beneficial.