The Legality of the Use of Unmanned Maritime Systems under International Law

The Legality of the Use of Unmanned Maritime Systems under International Law

Read the Original on the Center for Civil Liberties Website

Authors: Dr. Gregory P. Noone and Sindija Bēta, PILPG, and Ropes & Gray

Since Russia’s full-scale invasion of Ukraine on February 24, 2022, Ukraine has contended with both material and manpower disadvantages. To counteract Russian asymmetrical naval superiority in the Black Sea, the Ukrainian military has developed unmanned maritime systems, which can inflict damage at a relatively low cost to Ukraine. Ukraine has effectively sunk or severely damaged numerous Russian warships and other strategic targets, including the Russian guided missile cruiser Moskva, the corvette Ivanovets (a Tarantul class missile ship), a Bykov class corvette, the landing ship Caesar Kunikov, a high-speed patrol boat, and the Kerch bridge, which links Crimea to Russia.  In response, Russia has redeployed and dispersed the bulk of its Black Sea Fleet far from the Ukrainian coast and Crimea, allowing Ukraine to restart exports from its primary port of Odesa.

The use of unmanned maritime systems is a relatively new development and, as such, its legality under international law is subject to debate. This article examines the legal framework that regulates the use of unmanned maritime systems and, in particular, whether Ukraine’s usage of these systems is legal under the Law of Armed Conflict and International Law.   

The unmanned maritime systems that Ukraine deploys fall into two categories: unmanned surface vehicles (“USVs”), of which the Magura V5 and the Sea Baby have been the primary two types identified; and unmanned undersea vehicles (“UUVs”), of which the Marichka and the Toloka are the primary two types identified. Ukraine operates its USVs by remote control via satellite, and are equipped with high definition night vision camera systems for navigation and targeting.They are each equipped with backup communications systems, allowing the person controlling the USV to remain in control even in the event of disruption. The USVs typically attack by navigating to the target and detonating the explosives on board. The Magura V5 is designed to strike warships at sea, whereas the larger Sea Baby is intended for stationary targets, such as ships at port and bridges. The Sea Baby has also been equipped to lay mines to target Russian naval ships navigating through the Black Sea. Individual USVs tend to do little damage, but multiple USV hits can sink a ship. The Economist estimates that Ukraine’s USVs have knocked out approximately ten Russian ships, while the Wall Street Journal speculates around two dozen Russian warships have been sunk or damaged.

Ukraine’s UUVs are relatively new and public information about them is limited. Reporting has indicated that they are both remote-controlled and are equipped with sophisticated cameras, sonar, and hydrophone for navigation. Initial reports suggest the UUVs will be used in demining operations, and most likely to also attack enemy ships when operationally feasible.

An analysis of USVs and UUVs can begin – but not end – with the question of whether these crafts qualify as “ships” or “vessels” (the terms are used interchangeably) under the United Nations Convention on the Law of the Sea (“UNCLOS”), and if so, whether they qualify as “warships.”  Under UNCLOS and customary international law, vessels are entitled to certain navigational rights such as the right of transit passage through international straits. If a vessel is further classified as a warship, that permits the vessel to exercise “belligerent rights” during wartime. Belligerent rights would include attacking enemy ships, enforcing blockades, and controlling neutral vessels in the vicinity of naval operations.

UNCLOS—perhaps the most informative source of international maritime law and to which both Ukraine and Russia are signatories—does not explicitly define “ship,” but it does require that each country set the requirements for the registration of ships in its territory, and that any such ship carry the flag of the applicable country. Warships, on the other hand, are explicitly defined under UNCLOS as a ship that belongs to the armed forces of the applicable country, have external markings reflecting the applicable country, are commanded by a commissioned officer, and are manned by a crew subject to regular armed forces discipline. With respect to the definition of “warship” (and the “ship” definitions that also have this requirement), it is not settled whether being remote-controlled satisfies the “manned” requirement.

Based on publicly available information, Ukraine has not flagged the USVs or UUVs as “ships” or “warships,” nor has it attempted to exercise any navigational rights on their behalf beyond operations in the Black Sea region. In addition, Ukraine’s USVs and UUVs are not “manned” in the traditional sense under UNCLOS as there is no crew or commissioned officer on board to control the ship.Given these facts, it is unlikely that, under current interpretations of UNCLOS, Ukraine’s USVs and UUVs would qualify as a “warship.” Although USVs and UUVs likely do not constitute warships, that does not mean that they are precluded from attacking Russian military targets. To determine whether USVs and UUVs can be used as lawful means of warfare, the context in which they are employed is paramount.      

The primary sources of law governing the usage of weapons systems as lawful “means of warfare” are the 1949 Geneva Conventions, a series of international treaties establishing the Law of Armed Conflict between the parties to the treaties (which include both Ukraine and Russia as states parties), and specifically, Additional Protocol I to the 1949 Geneva Conventions (“AP I”) with respect to the usage of means of warfare in an international armed conflict. Additionally, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (“San Remo Manual”) is a codification of customary international law governing naval warfare, and largely applies the principles of the Geneva Conventions to naval warfare.  “Means of warfare” are weapons and weapons systems that are capable of conducting an “attack,” which is defined under Article 49 of AP I as an offensive or defensive act of violence against an adversary.       Russia and Ukraine are involved in an active military conflict, and Ukraine is using USVs as weapons to target enemy ships and military infrastructure, which are classic examples of an “attack.”

Under AP I and the San Remo Manual, in order to justify the use of USVs and UUVs (or any weapon or weapons system, for that matter) a country’s military must do the following:

• conduct legal review of new means of warfare prior to deployment;

• distinguish between military and civilian targets (including accepting surrender of targets where the surrender is evident to the attacker); 

• be capable of assessing proportionality (i.e., weighing the military advantage of an attack on a particular target against the attack’s expected collateral damage to civilians or civilian objects);  

• take all feasible precautions to prevent damage to civilians (including canceling attacks if proportionality rule will be breached and provide effective advance warning if circumstances permit); and

• have command accountability. 

As a general matter, it is rare for a means of warfare to be considered illegal under international law per se. To be per se illegal, such a weapon would need to be incapable of complying with the requirements set forth above under any circumstances—a classic example of this would be a biological weapon, whose potential to spread uncontrollably renders it unable to distinguish between civilian and military targets. If a weapon is not per se illegal, its legality will depend on both the weapon’s characteristics as well as the particular circumstances of its usage. 

Ukraine’s usage of USVs and UUVs to target Russian military vessels and infrastructure suggests that Ukraine has developed these systems to comply with the principles set forth under the Law of Armed Conflict, specifically AP I and the San Remo Manual. In particular:  

• As a party to AP I, Ukraine is responsible for reviewing USVs and UUVs for compliance with AP I prior to deployment. There is no publicly available information regarding these reviews—countries do not typically publish these reviews for strategic reasons, and Ukraine would be understandably unwilling to disclose detailed information about new weapons systems to its enemy during wartime. Nevertheless, the fact that Ukraine otherwise appears to be making efforts to comply with relevant international law with respect to USVs and UUVs as described in this article suggests Ukraine has most likely conducted the required legal review of these weapons systems.

• Ukraine’s USVs and UUVs can distinguish between military and civilian targets because they are remote-controlled and equipped with sophisticated camera and navigation systems that allow their operators to identify military targets, and navigate them to avoid civilian vessels and infrastructure. 

• Ukraine’s USVs and UUVs are capable of fulfilling the proportionality requirement because their camera and navigation systems allow operators to get a complete picture of the target and surrounding area to identify the level of risk of collateral damage to civilians and civilian objects, as well as their relatively low payload reduces the risk of collateral damage. In addition, Ukraine’s USVs and UUVs have “redundant” communications systems that reduce the likelihood of remote control being disrupted, which allows the operator to maintain control of the system until the attack is completed and, if necessary, cancel the attack if circumstances change.   

• Ukraine’s USVs and UUVs also comply with the command requirement because they are under the control of human operators, and responsibility can be assigned to the operators and/or the operators’ commanding officers who ordered the attack.

As noted above, Ukraine’s UUVs are more difficult to assess because they are relatively new and less is known about them, including the extent to which they have been used in the Russian war. However, the same analysis of the legality of USVs would apply to UUVs – that they would be permissible weapons systems under international law provided that Ukraine complies with the principles of AP I and the San Remo Manual as described above. 

Additionally, the 1907 Hague Convention VIII (“Hague VIII”) and the San Remo Manual impose additional restrictions on waterborne explosives (mines and torpedoes) that require them to sink or be disabled after a certain time so they become harmless and are not a permanent hazard to civilian vessels. An additional related question has arisen concerning whether USVs would be considered “torpedoes” under international law and thus be regulated under Hague VIII. Ukraine’s USVs and UUVs share characteristics with a torpedo in that they travel through water to attack enemy targets. Nonetheless, Hague VIII is more than one hundred years old and was intended to protect against unsophisticated, non-guided weapons systems, such as torpedoes and mines, so its applicability is questionable. And unlike the traditional torpedoes that Hague VIII intended to protect against, Ukraine’s USVs and UUVs have advanced remote control and satellite guidance, and can be steered to avoid civilian vessels and infrastructure. Moreover, their “redundant” communications systems reduce the risk of an operator losing control of the USV or UUV and therefore unlikely that a USV or UUV would become a permanent hazard. While the classification of Ukraine’s USVs and UUVs as torpedoes under Hague VIII as a matter of international law is questionable and unsettled, such a classification would provide an additional justification of their use under international law given that their usage, guidance systems, and control appear to comply with the conditions of permissible torpedoes under Hague VIII and the laws of warfare under the Geneva Conventions and San Remo Manual discussed above.    

Based on what is known about the USVs and UUVs – the nature of the weapons systems, and more importantly how Ukraine has deployed them in the war thus far – their usage in the reported circumstances appears to be in compliance with international law and the Law of Armed Conflict.

Photo by Thomas Haas on Unsplash

Conceptualizing IHL: Legality of the Targeting of Merchant Ships

Conceptualizing IHL: Legality of the Targeting of Merchant Ships

Read the Original on the Center for Civil Liberties Website

Authors: Dr. Gregory P. Noone and Sindija Bēta, PILPG, and David Robertson, Konstantine Kopaliani, Katherine Krudys, Jan Frankl, Oksana Diachenko, Mitch Riding, and Delyan Yanev

Introduction

The Russian full-scale invasion of Ukraine in 2022 has consisted of an ongoing armed conflict on land as well as at sea.

In 2022, several merchant vessels in Ukrainian waters were attacked.  These included the vessels “Yasa Jupiter,” “Namura Queen,” “Millennial Spirit,” “Lord Nelson,” and “Helt.” These vessels were all merchant ships, flying the flags of countries neutral to the conflict. Although the origin of the attacks remains unconfirmed, contemporaneous reporting indicated that the Russian military were responsible.

In July 2023, the Russian Defense Ministry announced that it would treat all vessels sailing to Ukrainian ports as military objectives, regardless of their flag or cargo.  That same week, Russia also announced it would not renew an UN-backed deal allowing Ukraine to export grain through the Black Sea. Abandoning the deal, one of the few diplomatic “successes” since the start of the war, meant that grain can no longer be exported safely from three key Ukrainian ports (Chornomorsk, Odesa, and Yuzhny/Pivdennyi). Any vessel leaving or entering a Ukrainian port will be treated by Russia as a legitimate military target.

Historical Parallels

The targeting of civilian ships in the Russian-Ukrainian conflict is not without historical precedent.  One notorious example is Germany’s U-boat campaign against merchant shipping during World War I. Initially, Germany followed so-called “prize rules,” which meant surfacing to search ships and allow civilians to escape. However, the Germans later adopted unrestricted warfare due to Britain’s effective use of “Q-ships” which were armed merchant ships with a military crew – essentially making them warships – in order to lure U-boats to the surface so that they could be attacked.

On February 4, 1915, Germany declared a war zone around Britain, sinking merchant ships without warning. This “unrestricted submarine warfare” angered neutral countries. The tactic was abandoned on September 1, 1915, after American lives were lost on the torpedoed liners “Lusitania” and “Arabic,” both flying the neutral American flag en route from New York to Liverpool. Germany attempted to justify the attacks by claiming that the vessels were carrying military materiel and munitions.

Under intense public and political pressure, Germany stopped unrestricted naval warfare in September 1915 but nevertheless reinstated it in February 1917. Between February and April 1917, German U-boats sank over 500 merchant ships, with an average of 13 ships sunk each day in the second half of April.

During the Iran-Iraq War in the 1980s, hundreds of commercial ships also faced attacks when both countries targeted each other’s oil tankers and cargo vessels in the Persian Gulf. These attacks included missile strikes, mine-laying, and naval battles, severely disrupting maritime trade and oil transport. 

More recently, over 50 merchant ships have been attacked in the Red Sea since October 2023 by Houthi rebels operating out of Yemen. In March 2024, Houthi rebels sunk the Belize-flagged “Rubymar” as part of their operations to disrupt crucial shipping lanes in response to the Israeli-Palestinian conflict.

Role of International Humanitarian Law during Armed Conflicts

The legality of state conduct during armed conflict falls under International Humanitarian Law, also known as the Law of Armed Conflict. International Humanitarian Law is a branch of international law embodied in treaties and conventions, as well as the generally accepted practices of states known as “customary international law.” Modern International Humanitarian Law emerged in the mid-19th century when steps were first taken to codify the “laws and customs of war.” Further development occurred in the 20th century, principally via the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. The 1977 Geneva Convention Additional Protocol I (“AP I”) is the treaty most relevant to the present discussion of Russian attacks on merchant vessels.

The Geneva Convention Additional Protocol I 1977

AP I codifies agreed and accepted limits on the ways in which wars may be fought with the objective of protecting civilians from the dangers of hostilities. Part IV of AP I (Articles 48-60) codifies rules aimed at ensuring that civilians and civilian objects are protected from the effects of hostilities. The key provisions of AP I apply to naval warfare as well as to conflict on land (ICRC, Naval Warfare). Article 49(3) delineates the scope of AP I to “apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land.”

Article 48 titled “Basic rule” outlines the key principle of “distinction”, namely the requirement that parties to any conflict “distinguish between the civilian population and combatants and between civilian objects and military objectives” and “direct their operations only against military objectives.”

Ukraine has been a party to AP I since 1989, when the Soviet Union ratified the Protocol. Russia, also a member since 1989, but withdrew from AP I in 2019. However, the Russian Foreign Ministry stated at the time that its withdrawal would “not affect Russia’s participation in Protocol I, which continues to remain valid.” Russia’s statement appears to acknowledge that AP I is part of customary international law. 

When provisions of a treaty embody customary international law, they are binding obligations on states regardless of whether or not a state is a party to the treaty. Customary international law is cited in Article 38(1)(b) of the Statute of the International Court of Justice (the “ICJ”) which identifies “international custom, as evidence of a general practice accepted as law” as one of the sources of international law. Simply put, customary international law refers to international obligations arising from established state practices, as opposed to obligations that arise from treaties, such as AP I.  The prevailing view is that an international custom will qualify as customary international law if it meets two requirements: a) it must be a consistent and general practice amongst states; and b) states must engage in the practice out of a sense of legal obligation. (Lotus Case, p. 18; Nicaragua Case, para. 207; Gulf of Maine Case, para. 46).

Russia’s acceptance is at the very least indicative that important parts of AP I represent customary international law – a view shared by the U.S. and other states that have not ratified Additional Protocol I. Accordingly, even though Russia is no longer a party to AP I, the key principles of International Humanitarian Law applicable to naval warfare and armed conflicts contained within it, including the obligations to protect civilians and civilian objects from attack, continue to apply to the Russian-Ukrainian war as customary international law. 

Customary International Humanitarian Law

In addition to the principles of customary international law embodied in the AP I, there are other customs and practices of states which have come to be recognized as norms of Customary International Humanitarian Law which are relevant to a discussion of Russia’s targeting of merchant ships. 

In 2005 the International Committee of the Red Cross (ICRC), which has been integral to the development of International Humanitarian Law since it was founded in 1863, published a comprehensive report on customary rules of International Humanitarian Law. The study draws upon international treaties, military manuals, state customs and practices, and other sources to identify 161 rules of Customary International Humanitarian Law. This post makes reference to the rules contained in the ICRC Customary IHL study which, although not legally binding, is considered an authoritative reference as to the applicable international law.

As reflected in Article 48 of the AP I, Customary International Humanitarian Law requires combatants to distinguish between civilian objects and military objectives. Parties to a conflict “must at all times distinguish between civilian objects and military objectives” and attacks “must not be directed against civilian objects” (ICRC, Customary IHL, Rule No. 7) In its Nuclear WeaponsAdvisory Opinion (paras. 78-79), the ICJ highlighted this principle of distinction as a “cardinal principle” of International Humanitarian Law and an “intransgressible principle of international customary law.”

Customary rules of international law define “military objectives” as objects that “by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” (ICRC, Customary IHL, Rule 8) Conversely, “civilian objects” are “all objects that [are] not military objectives” (ICRC, Customary IHL, Rule 9). Civilian objects “are protected against attack, unless and for such time as they are military objectives.” (ICRC, Customary IHL, Rule 10)

Civilians may be considered a legitimate military target only where they are “directly participating” in hostilities. The rules of Customary International Humanitarian Law as to what constitutes “direct participation” in this context is restated in the ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities. For a civilian act to qualify, it must meet the following, cumulative, criteria:

1. The civilian act must be likely to either: (i) adversely affect military operations or military capacity; or (ii) inflict death, injury, or destruction on protected persons or objects (threshold of harm); and

2. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and

3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

Applied together, the three requirements—threshold of harm, direct causation, and belligerent nexus—allow for an objective distinction to be made between civilian activities that qualify as direct participation in hostilities and those which, although occurring during an armed conflict, are not part of hostilities and therefore do not cause the civilians involved lose protection against direct attack.

A further authoritative source of Customary International Humanitarian Law relevant to any discussion of Russia’s targeting of merchant ships is The San Remo Manual of 1994, which restates international law applicable to armed conflicts at sea and provides a helpful, non-exhaustive, list of examples of conduct which could make merchant vessels, both enemy and neutral, legitimate military targets. The San Remo Manual arose following naval conflicts Falklands/Malvinas War (1982) and the Iran-Iraq War (1980-1988) to provide clarifications to the applicability of the International Humanitarian Law in naval warfare. 

According to Article 60 of the San Remo Manual, the following activities may make enemy merchant vessels into military objectives:

• engaging in belligerent acts on behalf of the enemy, e.g., laying mines, minesweeping, cutting undersea cables and pipelines, engaging in visit and search of neutral merchant vessels or attacking other merchant vessels;

• acting as an auxiliary to an enemy’s armed forces, e.g., carrying troops or replenishing warships;

• being incorporated into or assisting the enemy’s intelligence gathering system, e.g., engaging in reconnaissance, early warning, surveillance, or command, control and communications missions;

• sailing under convoy of enemy warships or military aircraft;

• refusing an order to stop or actively resisting visit, search or capture;

• being armed to an extent that they could inflict damage to a warship; this excludes light individual weapons for the defense of personnel, e.g., against pirates, and purely deflective systems such as chaff ; or

• otherwise making an effective contribution to military action, e.g., carrying military materials

Similarly, Article 67 of the San Remo Manual provides that merchant vessels flying the flag of neutral States may not be attacked unless they:

1. are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning, they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

2. engage in belligerent acts on behalf of the enemy;

3. act as auxiliaries to the enemy’s armed forces;

4. are incorporated into or assist the enemy s intelligence system;

5. sail under convoy of enemy warships or military aircraft; or

6. otherwise make an effective contribution to the enemy’s military action, e.g., by carrying military materials, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

Merchant vessels may lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities. That protection is reinstated as soon as participation in hostilities comes to an end (ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities).

Despite the extensive customary rules summaries above, in practice, direct participation in hostilities by civilians can lead to confusion and uncertainty in implementing the principle of distinction. To prevent erroneous or arbitrary targeting of civilians who are entitled to protection, customary rules of International Humanitarian Law require combatants to take all feasible precautions to determine if a person is a civilian and if they are directly participating in hostilities (ICRC, Customary IHL, Rules 15-22). In case of doubt, the person must be presumed to be protected against direct attack.

Individual Criminal Responsibility for Targeting Merchant Vessels

Those committing violations of the rules of International Humanitarian Law could potentially face criminal charges before the International Criminal Court (the “ICC”). However, the ICC’s jurisdiction is not unlimited. It can exercise jurisdiction over states that are parties to the ICC Statute or over states that have accepted specifically the Court’s jurisdiction in accordance with Article 12(3) of the ICC Statute, or where the United Nations Security Council has referred the situation to the Court. The Court will have jurisdiction in respect of war crimes committed on the territory of State Parties, or “if the crime was committed on board a vessel or aircraft” where the state of registration of that vessel or aircraft is a State Party or has accepted the Court’s jurisdiction.

Neither Russia nor Ukraine are parties to the ICC. However, Ukraine has accepted the ICC’s jurisdiction for war crimes committed on its territory since November 2013 in accordance with Article 12(3) of the ICC Statute, giving the ICC Court jurisdiction over any war crimes, crimes against humanity, or genocide committed in Ukraine. This acceptance has the effect of extending the ICC’s jurisdiction over any crimes committed with respect to merchant vessels flying the Ukrainian flag or the flag of any existing State Party to the ICC Statute. Any other state whose vessels may have been attacked by Russia can likewise confer jurisdiction on the ICC for these potential war crimes (if they are not already State Parties to the ICC Statute). 

As for the status of the attacks, under Article 8(2)(b)(ii) of the ICC Statute, “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives” constitutes a war crime. Similarly, under Article 8(2)(b)(iv) of the ICC Statute “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” qualifies as a war crime. 

Given Russia’s declared intention to consider all vessels entering Ukrainian ports as potential military targets, there appears to be well founded basis for Russia’s attacks on merchant vessels being investigated as war crimes under Articles 8(2)(b)(ii) and 8(2)(b)(iv) of the ICC Statute. In the specific case of the “Millennial Spirit,” a chemical tanker, there was an additional risk of serious long-term environmental damage due to chemical leakage providing a potential alternate or additional basis for criminal liability under Article 8(2)(b)(iv) of the ICC Statute.

On March 5, 2024, ICC Pre-Trial Chamber II issued warrants of arrest for two individuals in the context of Russia’s aggression in Ukraine: Russian Armed Forces Lieutenant General Sergei Ivanovich Kobylash, who at the relevant time was the Commander of the Long-Range Aviation of the Aerospace Force, and Russian Navy Admiral Viktor Nikolayevich Sokolov, who at the relevant time was the Commander of the Black Sea Fleet. Based on the Prosecution’s applications of February 2, 2024, Pre-Trial Chamber II considered that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of directing attacks at civilian objects, the war crime of causing excessive incidental harm to civilians or damage to civilian objects, and the crime against humanity of inhumane acts. To date, the ICC Prosecutor has not sought arrest warrants for anyone involved in the attacks on merchant vessels in the Black Sea.

Legality of Attacks on Merchant Vessels under the United Nations Convention on the Law of the Sea

Attacks on merchant vessels may also violate the United Nations Convention on the Law of the Sea (the “UNCLOS”), to which both Russia and Ukraine are parties. 

Pursuant to Article 29 of the UNCLOS, “’warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.”  Any vessel not described by the definition above is treated as a civilian vessel.

Article 17 of the UNCLOS grants ships from all states, whether coastal or landlocked, the right of innocent passage through the territorial seas of coastal states. Article 19 of the UNCLOS clarifies that “[p]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” Article 25 of the UNCLOS allows a coastal state to “take the necessary steps in its territorial sea to prevent passage which is not innocent;” however, attacking merchant vessels that are in innocent passage is not justified. There is, unsurprisingly, no right at all for states to prevent passage of vessels in the territorial waters of other states.

Accordingly, within its own territorial waters (12 nautical miles from the coastal state’s baseline or low-water mark) interference by Russia with the passage of merchant vessels would be lawful only to prevent passage which was not innocent. Outside its territorial waters and within Ukrainian territorial waters any Russian interference at all with the passage of merchant vessels is likely to contravene Article 17.

Under Article 91(1) of the UNCLOS, “[s]hips have the nationality of the State whose flag they are entitled to fly.” Accordingly, flag states whose merchant vessels have been attacked by Russia may seek redress at the UNCLOS International Tribunal for the Law of the Sea, provided they are State Parties to UNCLOS, or the International Court of Justice (ICJ).

Conclusions on the Legality of Russia’s Attacks on Merchant Vessels under International Law

In light of the key rules of Customary International Humanitarian Law summarized above, there can be no doubt that in undertaking military activities, Russia is obliged to comply with the “intransgressible principle” of distinguishing between civilian objects and military objectives. Russia’s targeting of civilian merchant vessels in the Black Sea could only have been legal in circumstances where the targeted vessels met the cumulative requirements of direct participation in hostilities. In other words, each of the vessels would have become a legitimate military target only if it was engaged in activity designed to adversely affect Russian military operations or to damage protected persons or objects, and then only for the duration of such activity. If circumstances of direct participation were suspected to exist, customary international law obliges Russian commanders to take all feasible precautions to minimize the risk of error. 

In the absence of appropriately verified circumstances of direct participation, the targeting of merchant vessels is a violation of International Humanitarian Law. The 2023 declaration by Russia that it would consider all vessels entering Ukrainian ports as potential military targets appears to stand, therefore, as a statement of intent to violate International Humanitarian Law and therefore commit war crimes.

Intentional direct attacks against civil objects, or intentional attacks in circumstances where it is known that the attack will cause excessive incidental loss of life or injury to civilians or damage to civilian objects can qualify as war crimes under the ICC Statute. Although neither Russia nor Ukraine are State Parties to the ICC Statute, the ICC will have jurisdiction over attacks on Ukrainian flagged vessels by reason of Ukraine’s specific acceptance of the Court’s jurisdiction. Any other state whose vessels may have been attached is likewise able to confer jurisdiction on the ICC to investigate and potentially prosecute the individuals responsible for the attacks.

Finally, any Russian interference with the passage of merchant vessels outside its own territorial waters is likely to contravene Article 17 of UNCLOS. Even within Russia’s Black Sea territorial waters, Russian interference with the passage of merchant vessels would only be permitted to prevent passage which is not innocent. Flag states whose merchant vessels have been attacked may seek redress under UNCLOS or at the ICJ.

Photo by Tim Mossholder on Unsplash

Legal Basis for Ukraine’s Peace Formula

Legal Basis for Ukraine’s Peace Formula

Read the original on the Center for Civil Liberties website

Authors: Sindija Beta and Dr. Paul R. Williams, PILPG

Introduction

In October 2022, Ukraine’s President Volodymyr Zelenskyy announced to the world Ukraine’s vision for peace.  This 10-point Peace Formula provides a clear and comprehensive outline for long-lasting peace and stability within the region.  Among these points are concerns such as nuclear security, territorial integrity, return of prisoners of war and other forcibly displaced Ukrainians (including children), and accountability for perpetrators of atrocity crimes.

Ukraine’s Peace Formula is not the only model that has been proposed for the conclusion of the war.  In mid-March 2024, Russia proposed a “peace plan” that called for Ukraine’s complete and unconditional surrender, the dissolution of the Ukrainian government, and Ukraine’s recognition internationally as part of Russia’s territory, among other demands.  In February 2023, China released its proposal for peace in Ukraine, and in the summer of 2023, an African Peace Delegation traveled to Ukraine and Russia to advocate for a peaceful solution to the war (although details of the delegation’s proposed peace plan have not been made public).

All of the plans and proposals reflect their own countries’ and regions’ priorities.  However, Ukraine’s Peace Formula is the model most consistent with well-founded principles of international law.  This article outlines the legal basis underpinning the Peace Formula.

What is the Peace Formula asking?

Ukraine’s Peace Formula posits that a just and durable peace will require Russia to guarantee nuclear safety, food and energy security, the release of all prisoners and civilian deportees, and restoration of Ukraine’s territorial integrity and withdrawal of Russian troops, as well as the protection of the environment and prevention of further aggression.  Likewise, the Peace Formula provides that no crime perpetrated during the war can be left unpunished.

The 10 points of Ukraine’s Peace Formula provide context for why Russia’s compliance with these guarantees is so important for Ukraine’s future safety and security.  Namely, during the war, Russia has threatened international security not only through its acts of aggression but also by creating highly unstable and even dangerous conditions in Ukraine’s nuclear plants and by causing severe destruction of Ukraine’s environment. 

Moreover, Russia’s forcible transfer of children and other civilians from the occupied territories along with its widespread destruction of Ukraine’s energy infrastructure and general disruption of the global food supply chain have caused uproar and condemnation from the global community.  The International Criminal Court, for instance, has issued arrest warrants against four high-level Russian officials, including President Vladimir Putin, related to the unlawful deportation of children and attacks on civilians and civilian objects.  The UN General Assembly also passed a resolution in late 2022 declaring that Russia must “bear the legal consequences of all of its internationally wrongful acts, including making reparation for the injury, including any damage, caused by such acts.”

The Peace Formula under International Law

Ukraine’s position as outlined in the Peace Formula is consistent with international legal principles and norms.  In particular, Points 5, 6, and 9 of the Peace Formula—concerning the restoration of Ukraine’s territorial integrity, cessation of hostilities, and permanent withdrawal of Russian troops—are consistent with the international prohibition on the use of force and aggression. 

The UN is founded upon principles of sovereignty and territorial integrity of its members and the UN Charter establishes that members of the United Nations may not resort to the use of force in international relations.  UN General Assembly Resolution 3314 (XXIX) further asserts that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take collective measures to suppress acts of aggression or other breaches of the peace, defining aggression to mean the use of armed force against, among other things, the territorial integrity of another state.

Other points in the Peace Formula are grounded in principles of international humanitarian and human rights law.  For instance, special protections exist for works or installations containing “dangerous forces,” such as dams, dykes, and nuclear power plants.  Russian destruction of the Nova Kakhovka Dam and endangering the Zaporizhzhia Nuclear Power Plant are in violation of these protections.  Under no circumstances may such sites be the target of military attack or occupation, even where such sites are military objectives.  Such prohibitions align with Points 1 and 8 of the Peace Formula regarding nuclear safety and environmental protection.

Furthermore, all civilians and civilian objects enjoy robust protections under the Geneva Conventions.  The Universal Declaration of Human Rights also provides for “the right to a standard of living adequate for the health and well-being of himself and of his family.”  Ukraine’s expectation under Points 1, 2, and 3—regarding the protection of its energy and nuclear infrastructure, agricultural lands, and infrastructure for exporting goods—that Russia will respect and safeguard these rights is in line with international obligations. 

The Geneva Conventions likewise prohibit an occupying power from forcibly transferring populations from one territory to another, and they provide several protections for prisoners of war, including the rule that they be released at the end of active hostilities.  The UN Convention on the Rights of the Child specifically requires states to combat the illegal transfer of children and requires that those illegally transferred are returned.  These Conventions support Ukraine’s position under Point 4 that all detained civilians (most notably, children) must be immediately released, and that all prisoners of war must be released at the end of the war.

Despite the relative nascency of an international environmental legal framework, Russia’s continuous destruction of Ukraine’s environment is contrary to various legal instruments and norms.  The right to a healthy environment is protected as an element of the right to life in a number of international human rights treaties, and causing severe damage to the environment amounts to a war crime under international humanitarian law.  States are prohibited from using any environmental modification techniques in times of conflict that have “widespread, long-lasting or severe effects” on any other state.  As such, any resistance to Ukraine’s Point 8 on environmental protection would find no legal foundation.

Russia irrefutably has breached a wide range of its international legal obligations and committed gruesome atrocity crimes, including those prohibited under the abovementioned instruments.  Under Point 7, Ukraine has every right to seek justice for these unlawful acts.  In fact, it is obligated to do so. 

States parties to the Geneva Conventions are under an explicit obligation to search for, prosecute, and punish perpetrators of war crimes committed during international armed conflicts.  Additionally, the International Covenant on Civil and Political Rights and the European Convention on Human Rights require their states parties to provide effective remedies to victims of human rights violations.

Relatedly, Russia is under the obligation to compensate Ukraine for the damages it has caused during the course of the war.  According to international legal precedent, any illegal act creates an obligation to make reparation, re-establishing the situation that would have existed without the commission of the illegal act.  A similar requirement is reflected in various international legal documents, such as the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts and the Geneva Conventions.

The only point not discussed in this post is Point 10 – Confirmation of the End of the War.  This point calls for the adoption of an official document confirming the end of the war.  As of this post’s publication, it is unclear what any ceasefire or peace agreement will look like and how it can be enforced.  Nevertheless, it is clear that any such document must be able to not only terminate ongoing hostilities but also deter any future aggression.

Conclusion

As peace talks unfold between Ukraine and its international partners, it is important to recognize and acknowledge that Ukraine’s proposal for the resolution of the war is clearly supported by international legal principles and norms. 

Yet challenges persist.  These largely lie in the nature of international politics and the enforceability of international law.  Despite these obstacles, however, Ukraine’s toolbox of legal arguments for peace negotiations contains well-established legal principles and countless foundational treaties and conventions.  If and when talks on the development of a peace instrument commence, Ukraine will be well positioned to defend its Peace Formula, point by point.

What responsibility do States that supply (i) weapons or (ii) other assistance to Russia have under international law?

What responsibility do States that supply (i) weapons or (ii) other assistance to Russia have under international law?

Read the original on the Center for Civil Liberties website

Authors: Dr. Gregory P. Noone and Sindija Beta, PILPG

Abstract: This blog post looks at the responsibility of States under international law that supply weapons or other assistance to Russia.  International law imposes various obligations on States, including under: (i) the law of neutrality, (ii) international humanitarian law, and (iii) the Articles on State Responsibility.

Introduction

Russia’s war on Ukraine has violated international law in several ways, including violations of the UN Charter, the Genocide Convention, and the Draft Articles on Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility”). 

Despite its numerous violations of international law, Russia has retained a few supporters in the international community.  Belarus, China, Iran, and North Korea have all either already sent or are contemplating providing military aid to Russia in various forms. 

As the international community continues to discuss and explore various bases for holding Russia accountable as a matter of international law, the conduct of States that have provided aid or assistance to Russia merits closer attention, and may itself amount to distinct violations of international law.  This blog post explores and considers the various ways in which States supporting Russia’s war in Ukraine may themselves be in violation of international law.  This is an important endeavor given that no established precedent exists for holding such States internationally accountable, despite various calls for accountability in conflicts preceding Russia’s war on Ukraine (e.g., the United States, France, and United Kingdom’s provision of intelligence, logistic, and military support to Saudi Arabian-led operations in Yemen).

While the illegality of Russia’s actions is relatively clear, the liability of aiding/assisting States varies depending on the lens and framework of international law that is sought to be applied as well as the manner and extent of support provided.  In general, international law has multiple frameworks that impose a requirement on States to remain neutral.  These frameworks include: (i) the law of neutrality, (ii) international humanitarian law, and (iii) the Articles on State Responsibility.  As this blog post explains, while a strict reading of these frameworks could mean that a State that provides support to Russia has violated international law, in practice, holding States liable for this support is an enormous challenge. 

Responsibility of third party States under the law of neutrality

In a formal sense, the armed conflict is currently only between Russia and Ukraine.  While various States have condemned Russia’s actions, States providing material aid or support to Ukraine have been careful not to make themselves a party to the armed conflict.  This section examines the extent to which international obligations on State supporters of Russia’s war can be derived from the law of neutrality.

There is no codified law or treaty called “the law of neutrality.”  Rather, the law of neutrality is an old doctrine of international law which governs the relationship between States (known as belligerents) engaged in international armed conflicts (“IAC”) and those States that are at peace (known as neutrals). 

The first codification of the law of neutrality can be found in Hague Conventions (V) and (XIII) of 1907, which both articulate that a neutral State may neither make its territory available for a belligerent nor provide a belligerent with war material of any kind (Articles 7 and 6 of Hague Conventions (V) and (XIII), respectively).  Consistent with this, the First Geneva Convention of 1949 articulates that State supporters of a belligerent State like Russia may supply only humanitarian aid in order to maintain their neutral status.

As others have noted, States supplying military equipment to Russia would appear to be in breach of their obligations under the law of neutrality enshrined in the Hague Conventions.  At first glance, the same applies to those States that provide weapons to Ukraine.  However, the law of neutrality may provide a more nuanced approach to States providing material aid to Ukraine.  Certain scholars have advocated for a qualified law of neutrality.  Under this doctrine, States may discriminate in favor of the State that is a victim of aggression (as opposed to the aggressor State), while retaining their neutral status. 

While generally, it may be difficult to determine which State is the aggressor, and the associated perception of subjectivity in designating a State as an aggressor is often associated with academic skepticism regarding the doctrine of qualified neutrality, Russia is unequivocally the aggressor in the context of its war on Ukraine.  In fact, critics of the qualified neutrality doctrine have labeled the war against Ukraine a “game changer” that has led them to call for a “more nuanced position vis-à-vis qualified neutrality.” 

In addition to qualified neutrality, it has been argued that the provision of aid/assistance to Ukraine is justified in light of the circumstances “precluding wrongfulness” (in other words, preventing a wrong being committed) as a matter of State responsibility, being justified as Ukraine’s self-defense or as a proportionate and lawful counter-measures in the face of Russia’s internationally wrongful conduct.  It has even been suggested that States have an obligation to assist Ukraine as part of their duty to cooperate to bring breaches of peremptory norms of international law (erga omnes)to an end.

Unfortunately, the law of neutrality does not provide a distinct basis for holding States providing aid/assistance to Russia liable.  Nonetheless, it has occupied a significant position in discussions regarding Russia’s war on Ukraine, in light of the aid provided by several countries to Ukraine.  As set out above, theories of qualified neutrality and other bases establish that such State assistance to Ukraine do not violate neutrality. 

Responsibility of third party States under international humanitarian law

The provision of weapons to Russia also has implications as a matter of international humanitarian law (“IHL”), which is the body of law that regulates the conduct of armed conflict.

The meaning of “becoming a party” to an international conflict under IHL

Under IHL, when a State becomes a party to a conflict (or a “co-belligerent”) there are certain rules and protections that automatically apply to it.  Practically speaking, this means that its soldiers and military objects can be lawfully targeted anytime, anywhere, and with any amount of force.  Party status also matters for the legal protection of individuals in an armed conflict, may influence the scope of individual obligations, and can be relevant in establishing international criminal responsibility for certain war crimes committed.

Finally, if a State becomes a party to an international conflict, it also helps determine whether or not a party is in breach of Common Article 1 of the Geneva Conventions, which stipulates that a State should not provide aid, assistance, or encouragement to another party’s IHL violations.

This is why it is important to determine if, and when, a State providing assistance to Russia would become a co-belligerent State in the conflict with Ukraine.

When does a State become a co-belligerent party to an international conflict?

It is important to note that the same action by a particular State will impact both the law of neutrality and IHL, but these are distinct and should not be conflated.

Generally speaking, a State’s act must form part of the hostilities or military operations that constitute the IAC for it to be considered a co-belligerent.

Whether or not States assisting Russia will qualify as co-belligerents depends on whether a State directly participates in hostilities alongside another State, understood as engaging in acts that have a “sufficiently direct connection to harm to the adversary.”

Some scholars argue that “the systematic or substantial supply of war materials, military troops, or financial support” to a State engaged in an IAC makes the supplying State a co-belligerent.  However, this is a minority position, and it is fairly well established that “supplying arms, without more, [does] not have a sufficiently direct operational connection” with an IAC to qualify as co-belligerency.

Specific examples of what may make a State a co-belligerent include: (i) using force against Ukrainian airplanes to enforce a no-fly zone in cooperation with Russia; (ii) the provision of intelligence to Russia which forms part of concrete military operations, such as targeting processes; or (iii) providing territory as a launchpad for military operations by Russia.

By contrast, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) Appeals Chamber specifically held that “equipping” and “financing” an organized armed group does not internationalize an internal armed conflict.  If that level of support is not sufficient to create an IAC, it cannot suffice also for co-belligerency.  It is instructive that the US was not considered a party to World War II, despite its massive support for the Allies, until it entered the fight against Germany and Japan directly.

Therefore, it is unlikely that foreign States would be considered Russia’s co-belligerents simply because they have provided it with weapons.  More is required.  For example, direct participation in hostilities alongside Russia.

Responsibility of third party States under Articles on State Responsibility

What is State complicity?

The analysis of third-party responsibility for the provision of weapons or assistance would be incomplete without a discussion regarding State complicity.  As explained by Valentina Coli, “complicity,” originally a criminal law concept, is a form of “knowing involvement of an international law actor in the wrongful act that can be attributed to another.”

State complicity and Articles on State Responsibility

The analysis of State complicity has been a subject of customary international law, and was ultimately codified upon the UN’s International Law Commission’s (“ILC”) adoption of the Articles on State Responsibility in 2001. 

Under Article 16 of the Articles on State Responsibility, three conditions must be satisfied for a State to be held internationally responsible, namely:

• the State providing aid or assistance must have knowledge that the conduct of the State it is assisting constitutes an internationally wrongful act;

• the aid or assistance must be given with a view to facilitating the commission of such act; and

• the completed act must be of a nature that it would have been wrongful had it been committed by the assisting State. 

While some of these elements are straightforward, the analyses of others have proven to be more challenging.  Aid and assistance have a broad meaning encompassing the provision of weapons, logistical and technical support, financial aid, as well as intelligence-sharing.  Similarly, the requirement for a causal nexus is satisfied as long as the aid or assistance contributed materially to the wrongful act.  The meaning of “internationally wrongful” under Article 3 of the Articles on State Responsibility, includes acts such as the commission of war crimes.  The required element of “knowledge” under Article 16 has, however, proven to be quite complicated. 

The ILC’s inconsistent positions on this issue are partially to blame – while Article 16 itself uses the term “knowledge,” in its commentary on the Articles on State Responsibility, the ILC has used terminology referring instead to “intent.” Broadly, academic doctrine and State opinion are split along these two lines, with one set advocating for a knowledge-based theory, while the other advances an intent requirement.  Under the former view, a State is complicit for providing assistance or aid if it knows that the State that it is assisting would use such aid or assistance to commit internationally wrongful acts such as war crimes.  In the latter view, a State can be complicit only if it provides assistance with the intention of facilitating the assisted State’s internationally wrongful conduct.  

The position under Article 16 is supplemented by Article 41 of the Articles on State Responsibility, which prohibits State aid and assistance to the maintenance of situations created by a serious breach of a peremptory norm of international law (international law uses the term jus cogens for peremptory norms that cannot be breached). Examples of peremptory norms include a prohibition on a war of aggression, crimes against humanity, and genocide.

Relying upon the criteria set out in the Articles on State Responsibility, scholars have analyzed whether States such as Iran, Belarus, and China could be held complicit for providing aid or assistance to Russia.  As a note of caution, such States only bear responsibility for their aid or assistance to the underlying unlawful Russian conduct and not for Russia’s unlawful conduct per se.  This distinction entails that Ukraine may not be in a position to avail of countermeasures (which must be proportionate to the measures in question) against such States, and would be limited in terms of the reparations it could claim against them.  

Contrary to the position of States assisting or aiding Russia, which may attract State complicity for internationally wrongful acts, States’ provision of aid or assistance to Ukraine in furtherance of Ukraine’s self-defense is unlikely to contravene Articles 16 and 41. 

Conclusion

The issue of State responsibility for the provision of weapons, financial assistance, and materials implicates and cuts across several regimes of international law, as analyzed above. 

Under the law of neutrality, State supporters of both Ukraine and Russia have the potential to be held liable for the provision of weapons or more direct support to either State.  However, there is potential to explore the doctrine of qualified neutrality, along with other bases, to assert that States providing material support to Ukraine should not face the same liability, as Russia is the clear aggressor in this conflict.  The scope of any such liability is not clear, as the law of neutrality has no distinct enforcement mechanism and it is likely that this approach would have to accompany a general argument that Russia has committed internationally wrongful acts.

As a matter of IHL, States supplying such assistance to Russia are unlikely to qualify as co-belligerents, and more direct participation from them would be required to meet this threshold.  As far as State complicity under customary international law is concerned, the difficulties in interpreting and applying the “knowledge” or “intent” requirement of Article 16 of the Articles on State Responsibility continues to pose a challenge in holding States supplying aid or assistance to Russia complicit in internationally wrongful conduct. 

Photo by Joshua Olsen on Unsplash

Violations of International Humanitarian Law Should Lead Toward International Criminal Responsibility

Violations of International Humanitarian Law Should Lead Toward International Criminal Responsibility

Read the original on the Center for Civil Liberties website

Authors: Dr. Gregory P. Noone, Professor Milena Sterio, and Sindija Beta, PILPG, and Viren Mascarenhas and Pierre-Philippe Turnbull, Milbank

Ever since the commencement of its full-scale invasion of Ukraine in February 2022, many analysts have identified ongoing or specific acts by Russia or Russian-sponsored actors such as the Wagner group that violate international humanitarian law (“IHL”) and amount to war crimes.  Because IHL consists of a binding set of fundamental legal norms, the international community should expect compliance by all participants, including state and non-state actors, in an armed conflict with IHL.  Moreover, those who commit IHL violations should bear individual criminal responsibility and face prosecutions at international, regional, and national tribunals.

Russia’s “Liberation Narrative” is Legally Flawed

The Russian use of force against Ukraine is a blatant violation of international law. Russia has framed its actions as being part of a noble pursuit of “liberating” territories located in Ukraine.  However, the illegal presence of Russian forces on Ukrainian territory constitutes an “occupation” under the Fourth Geneva Convention of 1949. 

Russia claims that its presence in Ukrainian territory is not an illegal occupation of another State, but rather a legitimate annexation.  This is not the case as the 2014 occupation of Crimea and the 2022 occupation of additional Ukrainian territories have been condemned by the international community as illegal and illegitimate.  Russia’s arguments in support of its occupation of Ukrainian territory hinge on multiple referendums, the results of which purport to provide a legal basis for annexation. However, the voting process underlying the referendums in both 2014 and 2022, overseen by the Russian military, is widely viewed by the international community as coercive and thus not representative of a free and fair election of the people.  Still, Russia persists with this narrative in which the ends (purported liberation) may justify the means (the instances of violations of IHL). 

However, even if Russia’s narrative were true (which is not the case), the ends do not blanketly justify the means.  Hence the international community should still seek to hold Russia and its leaders accountable for breaches of IHL. 

The Applicability of IHL to Non-State Actors in Armed Conflict

Compliance with IHL raises another intriguing question: which entities or individuals are bound by IHL? Numerous reports identify the Wagner Group, a private military group, as having committed some of the violations of IHL and war crimes. Confusion has arisen as to whether non-state actors such as the Wagner Group also must comply with IHL.  The short answer is yes, although a variety of factors, including the nature of the conflict and the intensity of such conflict, will determine to what extent IHL may bind an armed group.

To begin, when it comes to internal (i.e. intra-state) armed conflicts, the intensity of such conflicts, and the different forms that such groups can present themselves as, are important factors. Compare the ongoing and continuous gang violence in El Salvador and the decade-long Syrian Civil War. The determination of whether the non-state actors in both cases, one being an organized gang, and the other being an armed militia in a civil war, are bound by IHL must be made on a case-by-case basis and supported by the realities on the ground. Ultimately, “a certain threshold of violence” has to be crossed for IHL to apply in such intra-state conflicts.

Admittedly, the lack of transparency when it comes to the Wagner Group’s organizational structure, operations, and ties to the Russian government has made ongoing investigations challenging. Furthermore, the recent and sudden death of the group’s leader,  Yevgeny Prigozhin, has called into question the organization’s future role in the war in Ukraine and the accountability of its leaders for past abuses. 

Nevertheless, public reports indicate that the threshold has been met in the war in Ukraine for IHL to apply to the acts of the Wagner Group.  As such, there is an ongoing international community effort to monitor the Wagner Group’s activities to identify violations of IHL and to hold the perpetrators accountable.

Legal Accountability

So why does the international community seek to hold those responsible for breaches of IHL, whether the offenders may be Russian armed forces operating under misconceptions of legitimate annexation or non-state actors, such as the Wagner Group? 

 History provides an explanation for why legal accountability for the worst crimes matters.  In the aftermath of World War I, the international community created the League of Nations to “outlaw war” and to serve as a forum for resolving international disputes. It was around this time that long-standing concepts that had been developed over previous centuries were formally identified by terms that are still used today: jus ad bellum, referring to the justification of resorting to armed force, and jus in bello, referring to the justification of behavior within the context of armed conflict.

Thereafter, the horrors of World War II devastated not only state armed forces but also civilian populations, making clear the need for enforcement of jus in bello. The United Nations was created in part to provide a forum to avoid such atrocities in the future, and the international community codified IHL in the Geneva Conventions of 1949, which have been ratified by every nation.

Ultimately, IHL aims to safeguard human dignity, carefully striking a balance between military necessity and protecting humanity.  It encourages warring nations to practice distinction, proportionality, and precaution, and to refrain from means and methods of warfare that target, terrorize, or bring unnecessary harm and suffering to civilians.  The Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005 codify these protections, delineate duties owed to civilians, and outlaw inhumane means and methods of war.  Such codification and widespread acceptance of IHL, combined with the establishment of the International Criminal Court and customary law in and among signatory states, have provided IHL with national and international enforceability.

Additionally, legal accountability attaches to individuals such as political and military leaders who bear individual criminal responsibility.  The application of international criminal law (“ICL”) to hold individuals accountable has gained increasing acceptance over the decades.  From the Nuremberg trials after World War II to the UN Chapter VII tribunals created in the mid-1990s, namely, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, to the hybrid tribunals created primarily through treaty agreements between the affected country and the United Nations, such as the Special Court for Sierra Leone, to the ratification of the Rome Statute giving rise to the International Criminal Court on July 1, 2002, it is now accepted as that individuals should be held legally accountable for their violations of IHL and the commission of war crimes. 

The legitimacy of holding individuals accountable for these acts derives from the principle that no one—not even a head of state—is above the law.  Maintaining legitimacy requires widespread application of IHL and ICL to everyone.  Selective or sparing application of the laws will result in the loss of legitimacy. 

It is for this reason that all participants in an armed conflict must comply with IHL.  Failure to do so must result in all offenders being prosecuted.  Thus, notwithstanding the war is still ongoing, Ukraine’s Prosecutor General has opened up over 80,000 war crime cases since the beginning of the war, and the Ukrainian government has already commenced prosecutions.

It is also why the International Criminal Court issued arrest warrants for President Putin and for the Russian commissioner for children’s rights, Maria Lvova-Belova for the war crimes of unlawful deportation and/or transfer of populations from occupied areas of Ukraine to the Russian Federation.

It is also why the Human Rights Council established the Independent International Commission of Inquiry on March 4, 2022, to investigate all alleged violations and abuses of human rights, violations of international law, and related crimes in the context of the aggression against Ukraine by the Russian Federation.

 Certainly, there will be legal, political, and other obstacles to the successful prosecution of individuals in these forums and others.  Holding these actors accountable for the atrocities committed in the course of Russian aggression against Ukraine might be daunting.  Some prosecutions may never get off the ground as offenders become fugitives who evade the reach of justice; others may fail for lack of evidence or even failure of due process owed to defendants.

But the task of at least seeking legal accountability must be executed.  The prospect of being found guilty will serve as a deterrent to all, including those in the present conflict, and in all future conflicts, that no one can act with impunity.  Hopefully, this will result in more protection of human life and dignity and less suffering during armed conflicts.  The alternative would be unqualified horrors in a state of lawlessness. 

Photo: Mural of the painting “Guernica” by Picasso made in tiles and full size. Location: Guernica (Allendesalazar street, 11).