Are Russian Attacks on Ukraine’s Electrical Grid a War Crime?

Are Russian Attacks on Ukraine’s Electrical Grid a War Crime?

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Authors: Dr. Gregory P. Noone and Sindija Beta (PILPG) and Ropes & Gray LLP

Since Russia began its full-scale invasion of Ukraine on February 24, 2022, it has repeatedly targeted Ukrainian power infrastructure with missile and drone strikes.  These attacks grew in both intensity and frequency starting in October of 2022, and by November of 2022 the Ukrainian electrical grid was so badly damaged that approximately half of the country’s power capacity was offline, leaving over 10 million people without power as cold winter temperatures set in.  Governments across the globe have spoken out to condemn these attacks as illegal under international law, however the basis for their claim of illegality has often been left unexplained.  This article provides a brief introduction to certain war crimes enumerated in the Geneva Conventions and explains why Russia’s attacks on Ukraine’s electrical infrastructure may constitute violations of Russia’s duties under the Law of Armed Conflict (also known as International Humanitarian Law).

Both Ukraine and Russia are parties to the four 1949 Geneva Conventions and the two 1977 Additional Protocols.  The Geneva Conventions provide extensive rules on how parties should behave in the course of an armed conflict, including with respect to civilians.  Violations of Article 147 of the Fourth Geneva Convention are considered to be grave breaches of the Law of Armed Conflict and therefore war crimes.   Article 147 prohibits a number of offenses against civilian populations, including “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” 

As the language of Article 147 suggests, the destruction of power infrastructure is not unequivocally prohibited under international law.  To be classified as war crimes, such attacks must not have been justified by military necessity and must have been carried out in an “unlawful” and “wanton” way.  The International Committee of the Red Cross has previously noted that installations producing power primarily for military consumption are a legitimate military target. The United States Department of Defense’s Law of War Manual goes even further and states that electrical power stations are generally recognized to be important enough to a state’s military functions to qualify them as military targets during an armed conflict.  Russia’s Ambassador has emphasized this point in the current armed conflict by explicitly claiming, “To weaken and destroy the military potential of our opponents, we are conducting strikes with precision weapons against energy and other infrastructure.” 

Though this line of argument suggests that some of Russia’s attacks on Ukraine’s electrical grid may not be prohibited under international law, the Law of Armed Conflict requires warring actors to strike a balance between military advantage and mitigation of harm when planning their strikes. This requirement reflects the customary international law rule of proportionality.  In the context of an armed conflict the principle of proportionality prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”  There are therefore two separate thresholds that Russian attacks on Ukrainian power infrastructure must meet in order to be permitted under international law: first, the target must be a military objective, and second, the attack must offer a military advantage that outweighs any loss of civilian life and damage to civilian objects.   

Evidence coming out of Ukraine suggests that Russia has failed to meet either threshold with respect to at least some of their energy infrastructure targets.  For instance, on November 23, 2022, Russia conducted 75 missile and drone strikes on power infrastructure in Ukraine.  While the precise role that each target may have played in support of Ukrainian military operations is nearly impossible to assess, experts agree that it is highly unlikely that all of these targets would qualify as military objectives. 

Even if they did qualify as such, the military advantage obtained from the Russian strikes was disproportionate to the civilian harm associated with the attacks.  The impact of these strikes on the Ukrainian people is not confined to the initial explosions, but also from disruptions to medical care, burdens to emergency response capacity, and lack of heat and power in over 10 million homes.  This assessment is supported by statements from Russian officials who have applauded the impact of the attacks on the civilian population, even going so far as to declare that Ukrainians should “rot and freeze.” It is important to note that endangering and demoralizing civilian populations is not a legitimate military objective and does not constitute a military advantage.  To qualify as a military advantage, destruction of the target must have an effect on military operations.  In the case of Russia’s attacks on Ukrainian power infrastructure,  Russia’s military advantage would be the neutralization of the Ukrainian military activities that rely on that infrastructure.  Whereas, political, psychological, economic, financial, social, and moral advantages do not qualify as military advantages.

Based on these facts, it is likely that at least a portion of Russia’s targets were not military objectives and/or did not result in a concrete and direct military advantage, which means attacks on such targets would be considered war crimes under international law.      

The devastating impact on civilians of Russia’s attacks may also trigger another category of war crimes under Article 147.  In addition to prohibiting extensive destruction of civilian property as a grave breach, Article 147 also prohibits “willfully causing great suffering or serious injury to body or health.”  As discussed above, the attacks on Ukraine’s power infrastructure have caused not just immediate deaths and injuries from the strikes, but also lasting suffering and health risks due to lack of electricity, water, and emergency health services.  Harrowing stories of surgeons operating by headlamps during power outages, as well as grandmothers relying on gas ovens for heat in sub-freezing temperatures have become commonplace.  Taken as a whole, it appears more likely than not that the civilian suffering caused by Russia’s attacks on Ukraine’s power infrastructure would rise to the level of war crimes under this prong of Article 147.    

In sum, while some of Russia’s attacks on Ukraine’s power infrastructure may be lawful under international law, most of Russia’s attacks violate the Law of Armed Conflict. The widespread nature of the attacks and the indiscriminate selection of targets, as well as their severe impacts on Ukrainian civilians, strongly suggest that many of the attacks constitute war crimes under international law.  While the path to accountability for war crimes committed by the Russian government in Ukraine remains uncertain, establishing consensus in the international community that Russia’s actions are a violation of international law will be important as world leaders continue to make decisions about political support and aid for Ukraine. 

Photo by Matthew Henry on Unsplash

Is the morale and will of the people a lawful target under International Humanitarian Law?

Is the morale and will of the people a lawful target under International Humanitarian Law?

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

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.  

Re-allocation of Land in Occupied Territories

Re-allocation of Land in Occupied Territories

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Authors: PILPG and Orrick, Herrington & Sutcliffe

Russia recently began granting land plots in occupied Crimea to Russian military veterans of the Ukrainian war.  Late last year, Vladimir Putin issued a directive recommending that the administration in Crimea, including in the city of Sevastopol, give land free of charge to veterans.  Various regional authorities have already begun sending land certificates, and Russian officialshave stated that thousands more are currently planned.

These moves have been denounced in Ukraine: Ukraine’s Ministry of Foreign Affairs has strongly condemned the land transfers, calling them “encouragements to murderers.”  In no uncertain terms, the Ministry stated that the land transfers are “criminal and void” and will be nullified when Ukraine regains control of Crimea.

The issue is whether or not such transfers are legal under international law?  This blog post will analyse that question by, first, explaining why Russia’s “annexation” of Crimea is illegal under international law.  Second, by exploring international law’s position on the use of force for conquering territory, concluding that Crimea is occupied territory and unlawfully  annexed.  Third, by analysing the illegality of land transfer on occupied territory.  The final section examines the legal consequences and remedies for the transfers of land in Crimea.

Illegality of Annexation

Much has been written about the illegitimacy of Russia’s annexation of Crimea, but it is worth reiterating why Russia’s annexation of Crimea is illegal under international law.  Russia has never had a legitimate basis to annex Crimea, and all of its arguments to the contrary have been repeatedly defeated.  Dr. Oleksander Merezhko, Professor of International Law and Head of the Chair of Law at the Kyiv National Linguistic University, attacks three such arguments in a 2015 paper.

Russia argues that annexing Crimea somehow vindicates the Crimean people’s right to self-determination. Russia bases this argument on the fact that Crimea in 2014 held a quickly organised referendum and chose to secede from Ukraine.  Dr. Merezhko points out multiple problems with this theory.  First, it ignores the fact that Crimea had no legal right to secede under Ukraine’s constitution or under international law.  Second, this theory ignores the fact that both Russia and Ukraine consider attempts to secede as “dangerous separatism” to be challenged.  Third, the referendum cannot be considered free and fair, as it was hastily thrown together, overseen by the Russian military, and in violation of Russian scholars’ own theories of what makes a legitimate referendum.  Despite reporting that around 93% of Crimeans polled voted for ‘independence’ in 2014 with an 80% turnout, the accuracy of the final poll numbers, notwithstanding the military occupation, have been undermined by the Russian Federation’s own Human Rights Council, which appeared to accidentally reveal, in 2014, that the actual numbers were closer to 55% in favour with a turnout of approximately 40%.  This would statistically indicate that around 20% of the total population voted in favour of secession from Ukraine.

The next argument Dr. Merezhko challenges is that Ukraine underwent an illegal coup d’état in 2014 that technically caused the Ukrainian state to collapse and gave the Crimeans a right to secede from Ukraine.  Dr. Merezhko points out that coups are internal affairs, as opposed to international, and do not invite international intervention.  Further, coups do not destroy national identities and bonds, nor do they invite countries other than the country undergoing the coup to weigh in on what happened.

Finally, Russia argues that its intervention is necessary to combat human rights violations and offer humanitarian aid.  Dr. Merezhko methodically counters this argument by, overall, pointing out that Russia’s own view of international law frowns on foreign intervention generally.

Illegal Use of Force and Legal Status of Occupation

International law is clear on the illegality and legal inconsequentiality of Russia’s purported annexations of Ukrainian territory in Eastern and Southern Ukraine, the Crimean peninsula, and Sevastopol.  Indeed, the impermissibility of the use of force to conquer another state’s territory is a fundamental and foundational rule of the modern international legal system.  The International Court of Justice’s (ICJ) jurisprudence has clearly articulated this prohibition in the advisory opinion Legal Consequences of the Construction of a Wall, which considers in detail the international illegality of the construction of buildings on occupied territory.  The ICJ noted that the prohibition on the acquisition of territory through force or the threat of force is a rule of international law: It is a corollary of the fundamental prohibition on the use of force in Article 2, paragraph 4 of the United Nations Charter, and can be found reflected in General Assembly resolution 2625 (XXV) which emphasised that “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal.”  The Court’s ruling in the Nicaragua case further confirmed that the Charter’s prohibition on the use of force is customary international law.  In the Ukrainian context, Russia’s purported sovereignty over Crimea has been rejected by the UN General Assembly in Resolution 68/262 (2014) as has the subsequent purported annexation of four Ukrainian oblasts in Resolution ES 11/4 (2022), indicating the non-acceptance of Russia’s claims by the UN member states.

It follows that Russia, which cannot have legitimately annexed what Ukraine terms the “temporarily occupied territories” under international law, must therefore be considered an occupying power under customary international law.  Occupied territory under international law can be defined with reference to Article 42 of the 1907 Hague Convention as territory “actually placed under the authority of [a] hostile army.”  It has been confirmed that the 1907 convention has the force of customary international law in (inter alia) the Judgment of the International Military Tribunal of Nuremberg, and the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.  The presence and evident authority of Russian forces in temporarily occupied territories since 2014 in general, and on the Crimean peninsula and Sevastopol in particular, meets the Article 42 definition on the facts and indicates that the international legal acts of the Russian Federation must be considered in the context of a military occupation.

Occupation and Settlement Under the Fourth Geneva Convention

Due to the armed conflict Russia has launched in Ukraine and its occupation of territories in Eastern and Southern Ukraine, the Geneva Convention IV is relevant for the present analysis.  Article 2 of the Convention offers two overlapping but distinct tests for whether Geneva Convention IV applies. The first paragraph states that the provisions of the Convention ‘shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contract Parties, even if the state of war is not recognized by one of them’ under the first paragraph of Article 2. Both Ukraine and Russia are High Contracting Parties to the Geneva Conventions. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia explained in Tadić that “an armed conflict exists whenever there is a resort to armed force between States.”  Ukraine and Russia are clearly in an international armed conflict under that definition, and therefore the Convention will apply in the temporarily occupied territories by virtue of the continuing conflict. Moreover, the Russian state’s rhetorical references to the “special military operation” and intermittent suppression of the use of the term “war” in the Russian domestic space, never likely to have had international legal significance, are rendered irrelevant in this context by the proviso of the first paragraph of Article 2 that Geneva Convention IV, which applies even where the state of war is not recognised by one party.

However, the occupation of Ukrainian territory itself is sufficient to engage the Convention even in the absence of active hostilities.  Russia’s initial invasion and internationally illegal annexation of Crimea occurred in 2014 and was followed by several years of de facto Russian control over the Crimean peninsula and low-level conflict in the Donbas prior to the full-scale invasion of 2022. Following the Court’s deliberation in the Wall opinion, that Geneva Convention IV clearly applies to the entire period that Crimea has been under Russian occupation, not just since the commencement of higher-intensity warfare in February 2022.  At paragraph [95] of the opinion, the Court emphasised with reference to the Convention’s travaux préparatoires that the contracting states sought to extend the Convention to all instances of armed conflict. Under the second paragraph of Article 2, the Convention applies “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”  Thus, even during the period post-2014 but prior to the current phase of the conflict when there was negligible conflict on the Crimean peninsula, the Convention would apply because Russia occupied the territory of Ukraine, a High Contracting Party.

It is therefore unambiguously clear that the Russian Federation’s plan to gift land titles in Crimea to veteran Russian service members is occurring in territory to which Geneva Convention IV applies.  The result of any such exercise is straightforward and unambiguous: Article 49, paragraph 6 of Geneva Convention IV states that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”  It is clear, moreover, that the establishment of settlements in occupied territory pursuant to any such civilian population transfer is also a breach of Article 49.  The UN Security Council Resolution 465 (1980) determined, on the advice of a Security Council Commission (See Resolution 446 (1979)) set up to investigate the Israeli settlements in occupied Palestine, that the building of settlements in occupied territory constitutes a “flagrant violation of the Geneva Convention.”  It is further noted that, whereas other paragraphs of Article 49 contain exceptions for exigencies of civilian population protection or military necessity, the prohibition in paragraph 6 contains no such exceptions.  Furthermore, the International Committee of the Red Cross and Red Crescent’s (ICRC) International Humanitarian Law Database’s Rule 51 of customary international law indicates that the occupying power’s use of occupied public real or immovable property is solely usufructuary, and that the destruction or requisition of real private property can only be justified by “imperative military necessity.”  As such, any potential Russian legal argument that this use of real property could escape Article 49 because it is justifiable under other provisions of relevant treaties or customary international law are thus doomed to fail: The disposition of public property as private property to Russian veterans, or even its long-term use as publicly-owned housing for them is incompatible with the principles of usufruct; it is further implausible to justify settlement programmes involving the confiscation of private real property as an imperative military necessity.  The inevitable conclusion is that any programme pursuant to which the Russian Federation settled military veterans on occupied Ukrainian territory would be contrary to international law and a violation of the Geneva Conventions.

Additional Applicable International Law

The Geneva Conventions are not likely to be the only international law engaged by Russia’s settlement plans.

The transfer “directly or indirectly, by the occupying Power of parts of its own civilian population into the territory it occupies” is also a war crime under Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court, over which that court has jurisdiction ratione materiae by virtue of Article 5(1)(c).  Although neither Russia nor Ukraine are States Party to the Rome Statute, Ukraine has accepted ad hoc jurisdiction of the International Criminal Court (ICC) in relation to war crimes and crimes against humanity arising from the current conflict.  Indeed, the ICC has recently issued arrest warrants against President Vladimir Putin and the Russian Commissioner for Children’s Rights for the deportation of children contrary to (inter alia) Article 8(2)(b)(viii).

Legal consequences and remedies for settlers

The Wall opinion does not examine in detail the more sensitive issue of removing the settlers themselves, however, as the question was not germane in the advisory opinion and, obviously, hugely emotive for all concerned.  The legal position, however, should be viewed as straightforwardly aligned with general principles of international law: Russia would be under an obligation to remove settlers.  In the definitive early judgment on righting international wrongs, the Permanent Court of International Justice in the Chorzów Factory Case stated that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”  This is affirmed by Articles 30 and 31 and Chapter II of the Draft Articles on Responsibility of States for Internationally Wrongful Acts; Article 31 in particular states that “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”  The first form of reparation, which is defined in Chapter II, is restitution, which Article 35 defines as an obligation “to re-establish the situation which existed before the wrongful act was committed,” although it is qualified by the requirement that restitution “does not involve a burden out of all proportion to the benefit.”  Further, again in the context of Israeli settlements in Palestine, UN Security Council Resolution 465 (1980) calls for existing settlements to be “dismantled,” although it is notable that the more recent Resolution 2334 (2016) “calls for affirmative steps to be taken immediately to reverse the negative trends on the ground,” which lacks some of the earlier resolution’s clarity and conviction.  Both suggest, however, that the view of the international community is that the property remedy is the undoing of such settlements.  It is therefore submitted that the repatriation of settlers would be the default legal position in international law.  All this said, it must be recognised that any such restitution could, in practical terms, have deeply sensitive political ramifications due to involving, as it might, the mass deportation of civilians in a wartime context as, indeed, the Israeli-Palestinian context shows.

Conclusion

Any current or future settlement plan pursued by the Russian Federation in the temporarily occupied territories would undoubtedly be illegal under international law.  Should Russia continue this program, the Wall advisory opinion again proves instructive.  The Court’s discussion of remedies lists the following potential legal obligations that would be imposed on the Russian state if it pursues this settlement plan in Crimea: cease the program and give assurances of non-repetition; make reparations for damage caused to natural and/or legal persons adversely affected; and return requisitioned land.

Photo by Nico Smit on Unsplash

Conceptualizing IHL: Denial of Quarter

Conceptualizing IHL: Denial of Quarter

Read the Original on the Center for Civil Liberties Website

Authors: PILPG and Milbank

When Russian soldiers crossed into Ukraine from neighboring Belarus in February 2022, many observers reported that the Russian soldiers appeared to be operating under strict orders: “Kill everyone!”. Such threats were recently made by the Wagner Group, a Russian private paramilitary company with close ties to the Russian government. Indiscriminate and absolute implementation of such orders, if true, could amount to the Russian state committing denial of quarter, among other violations of International Humanitarian Law.

DENIAL OF QUARTER – THE LEGAL CONTEXT

Under international law “quarter” is the obligation to spare the life of a combatant who is no longer in the fight (hors de combat) due to being sick, wounded, shipwrecked, or has laid down his or her arms and surrendered to the enemy. The prohibition on declaring no quarter is recognized in the Lieber Code, the Brussels Declaration, and codified in the Hague Regulations.Many military manuals, including the military manuals of Ukraine and the Russian Federation, prohibit threats or orders that “no quarter” will be given, as well as conducting hostilities on the basis that no quarter is given.

Denial of quarter is codified as a war crime in international armed conflicts in the Rome Statute of the International Criminal Court. The elements of this war crime, as listed in Article 8(2)(b)(xii) of the ICC Statute, are:

●   The perpetrator has declared or ordered that there shall be no survivors;

●   The declaration or such order to “deny quarter” was given to threaten an adversary or to conduct hostilities on the basis that there would be no survivors;

●   The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed;

●   The conduct took place in the context of and was associated with an international armed conflict; and

●   The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

THE RATIONALE BEHIND THE PROHIBITION TO DENY QUARTER

The prohibition of denial of quarter is to make sure that an enemy’s surrender remains possible and the lives ofhors de combat are spared. Although international humanitarian law protects personshors de combat, the prohibition against denial of quarter aims to outlaw orders that there shall be no survivors. As such, the requirement to give or allow quarter strikes a balance between military necessity and humanitarian considerations. It protects combatants who are actively engaged in hostilities from threats or acts of extermination while also shielding from attack fighters who no longer are in combat, either due to sickness, wounds, or injuries or because the fighters, even if physically able, are shipwrecked or have expressed an intention to surrender.

INSTANCES OF DENIAL OF QUARTER AND THE SOMBER FATE OF PRISONERS OF WAR IN UKRAINE

While the prohibition of denial of quarter makes it illegal to deliberately refuse or render impossible an enemy’s surrender or to put to death those who are hors de combat, proving the elements of the war crime is fact-sensitive and complex.

To date, there does not appear to be corroborated evidence of denial of quarter in Ukraine by the Russian military in the public domain. However, allegations have been made that such crimes might have been committed by Russian troops. For instance, the Associated Press has released intercepted phone conversations between Russian soldiers and their loved ones back home describing what happened in Bucha in March 2022. In those phone calls, Russian soldiers communicated, among other accounts, that they did not make Ukrainian soldiers prisoners of war and/or accept surrender, but, rather, “killed them all.”

More recently, in late April 2023, the leader of the Wagner Group, Yevgeny Prigozhin, warned that its members would “no longer take any prisoners” and further ordered its mercenaries to “kill everyone on the battlefield.” Although it is a private company, the Wagner Group relies heavily on Russian military infrastructure, and the support of the Russian government more broadly, for transport, issuance of passports and even recruitment.  If the Wagner Group follows through on its declarations of “no quarter,” such acts could constitute war crimes that may be attributed to Russian state actors. 

Alongside violations of the prohibition to deny quarter, attacks against and executions of POWs also constitutes war crimes if such actions are deliberate. Both Ukraine and the Russian Federation are bound by the Geneva Conventions of 1949, which provide that POWs must be treated humanely and define minimum detention standards such as medical care, basic food rations, and sufficient supply of drinking water. Yet, the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) has documented numerous violations of the Third Geneva Convention, international humanitarian law, and international human rights law in relation to the treatment of POWs by the Russian Federation. Through accounts of POWs who spent time in Russian internment camps, the OHCHR has noted patterns of torture of POWs, poor living conditions, as well as lack of food, water and proper medical attention.

The recent threats by the Wagner Group that no quarter will be given by its mercenaries against the Ukrainians, along with several claims of Russian soldiers violating the prohibition of denial of quarter and evidence of mistreatment of POWs all must be investigated seriously, as accounts continue to surface in Ukraine.

Illustration: Mathieu Jouve Jourdan, dit Coupe-Tête. Gouache de Jean-Baptiste Lesueur, Paris, musée Carnavalet, vers 1793-1794.

© Musée Carnavalet

The prohibition against torture and its pragmatic effects

The prohibition against torture and its pragmatic effects

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Author: PILPG

This blog post looks at the horrific crime of torture that is being committed by Russia in its war in Ukraine and explains the pragmatic reasoning for its prohibition and its legal application to Russia’s use of torture. The prohibition against torture exists as a fundamental principle of international relations, a sound political decision, an effective interrogation strategy, and a well-grounded moral obligation. For these reasons, while it is evident that Russia has failed to uphold its duties and obligations in maintaining the prohibition against torture, Ukraine is urged to continue to uphold its commitments under this legal principle.

Introduction

Torture is widely understood to be an abhorrent practice under a range of lenses: legal, political, practical, and moral. Despite this, torture has continued to be used by states such as Russia, who claim that the torture is necessary to obtain information or use war crimes like torture and execution to punish individuals that the state brands as “terrorists.” Russia’s use of torture not only has no legal justification but it is also gravely immoral and ineffective.

There is little doubt that Russia has violated the prohibition against torture in its war in Ukraine. A March 2023 United Nations Report by the Independent International Commission of Inquiry on Ukraine detailed a “widespread pattern” of torture and inhuman treatment committed by Russian authorities against individuals detained by Russian authorities within Ukraine as well as within Russia. This blogpost explores the reasons for the prohibition against torture, focusing on its prohibition under international law, the political harm it creates for international relations, its lack of practical value in providing reliable intelligence, and the moral ramifications of the use of torture.

The illegality of torture under international law

The prohibition on torture exists in international law as a “jus cogens”norm. As a jus cogens norm, the prohibition on torture is considered to be a fundamental principle of international law from which no derogation is permitted. The fundamental nature of the prohibition against torture is demonstrated through its links with the early history of the United Nations. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, which expressly states that “[n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”

International law is replete with definitions of torture, both in international conventions and international law jurisprudence. While the exact contours of what constitutes torture invariably vary amongst sources and remain a subject for academic debate,[1] for general purposes, the International Justice Resource Center has helpfully noted that the right to freedom from torture includes the following three aspects:

(i) the right of individuals to be protected by the state from torture by its agent;

(ii) the state’s duty to prosecute torturers; and

(iii) the right of individuals not to be returned or extradited to another state where they may face the danger of torture.

Through the course of its war in Ukraine, Russia appears to have derogated from all three aspects: (i) Russia is using its own agents to conduct torture against individuals; (ii) Russia is failing its duty to prosecute torturers, and instead, appears to be condoning and encouraging torture by its agents; and (iii) Russia is relocating individuals across state borders, from Ukraine and into Russia, where they may face the danger of torture.

The ineffectiveness of torture as a political tool

The use of torture is not only illegal, but also damages the reputation and credibility of a state on the international stage. The use of torture sends a message to other states that the torturing state is willing to derogate from basic norms and resort to extreme measures to achieve its goals, regardless of the cost to human dignity and rights. The resulting damage to the torturing state’s reputation is long-lasting and can have an impact on both international and domestic relations.

The United States’ use of torture techniques, such as waterboarding and confinement boxes, after September 11, 2001, resulted in a spate of continuing criticism both on the international and domestic stage. As Russia continues to engage in war crimes, such as torture, in Ukraine, it suffers massive reputational loss on the global stage. In April 2022, the UN General Assembly adopted a resolution calling for Russia to be suspended from the Human Rights Council. In April 2023, news that Russia would chair the UN Security Council (a position that rotates through the members of the Security Council on a monthly basis) was met with widespread criticism and comments on the “absurdity” that Russia could appropriately maintain international peace and security in light of its ongoing war crimes in Ukraine.

The practical ineffectiveness of torture as an interrogation tool

In addition to being illegal and politically ineffective, torture also has little to no demonstrated effectiveness as an interrogation tool. Rather, torture is generally understood to produce unreliable information and encourage false confessions from its victims. In practice, the stress that torture places on its victims is shown to cause gaps in their memories. As a result, even if a tortured individual genuinely desires to recall accurate information, the extreme stress of torture is likely to limit their ability to do so.

The information provided by a tortured individual is also likely to be heavily influenced by the information that the tortured person believes might stop the suffering imposed. In other words, even if an individual has no accurate information to share, the stress of torture may lead them to make false statements simply to stop the pain. Best practice interrogation techniques have no reason to include torture as a tool. Rather, interrogation is more likely to result in meaningful information if positive rapport and relationships are built between the interrogator and individual.

The moral damage caused by torture

The moral damage caused by torture is evident through its lack of justification. Due to its practical ineffectiveness as an interrogation technique, torture serves only as an act of violence that is done to cause suffering to another human being.

On a higher-level, a state that commits torture bears the moral wrong of having committed violence without justification. On the ground level, the individual that commits the torture or is witness to the torture bears the moral damage of torturing another individual. For military personnel that are asked to conduct such acts, the moral wrongs of the torture have an impact on their psychology and morale. One former Russian senior lieutenant who had witnessed several acts of torture conducted by Russian military against Ukrainian prisoners of war highlighted the clear moral wrong of bearing witness to Russian military actions in Ukraine in a statement that: “I don’t even have the moral right to ask for forgiveness from the Ukrainians. I can’t forgive myself, so I can’t expect them to forgive me.”

In contrast, despite the brutality of Russia’s aggressive war, Ukraine has repeatedly committed itself to upholding the rule of law and maintained the moral high ground. Ukraine is commended for committing to investigate allegations of its military personnel conducting torture against Russian military and urged to continue to maintain this position.

Conclusion

In sum, torture has no place nor justification for its use. It is forbidden under international law, politically damaging, practically ineffective, and immoral. Ukrainian authorities should continue to uphold their commitment to the rule of law and morality by preventing and prosecuting instances of torture. Russia’s use of torture is yet another way in which it hurts itself on the international stage and the international community should continue to condemn and criticize Russia for this.

[1] Several academic scholars have explored the definition of torture in depth. See, e.g., an article by Professor Nigel S. Rodley, here. See also, an article by Professor Oona Hathaway, here.