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.

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

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

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Author: PILPG

Introduction

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

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

International Human Rights Law (IHRL)

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

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

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

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

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

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

International Humanitarian Law (IHL)

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

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

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

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

Lex specialis

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

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

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

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

Enforcement of IHRL and IHL

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

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

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

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

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


Footnotes

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

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

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

The controversy around nuclear weapons

The controversy around nuclear weapons

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Authors: PILPG, Charline Yim, and Marryum Kahloon

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

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

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

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

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

The ICJ also confirmed that rules of international humanitarian law, including distinction and minimization of suffering, apply to the threat and/or use of nuclear weapons.  The principle of distinction requires that “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.”  In the case of nuclear weapons, some states argued that “nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives.”  In addition, the principle of minimizing suffering prohibits states from “caus[ing] unnecessary suffering to combatants” and “us[ing] weapons causing them such harm or uselessly aggravating their suffering.”  Any use of nuclear weapons arguably would result in an “enormous” number of casualties “on account of the blast, heat and radiation.”

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

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

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

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

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

Photo by Ilja Nedilko on Unsplash

Conceptualizing IHL: Levée en Masse & Perfidy

Conceptualizing IHL: Levée en Masse & Perfidy

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Authors: PILPG and Weil, Gotshal & Manges

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

I.  Levée en Masse

a) Definition

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

  b) Legal Consequences

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

c) Ukrainian and Russian Recognition

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

d) Interpretive Challenges

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

II.  Perfidy

a) Definition 

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

b) Source of Law

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

c) Legal Consequences

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

d) The Question in Ukraine

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

III.  Relationship Between Levee en Masse & Perfidy

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

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

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

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

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