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).

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

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

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

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

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

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

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

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

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

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

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

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

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

Photo by Matthew Henry on Unsplash

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

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

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Authors: Dr. Gregory P. Noone and Sindija Beta (PILPG) and Eric Leikin, Sue Ng, Sofia Svinkovskaya and Nataliia Kichuk (Freshfields Bruckhaus Deringer)

Introduction

Over the past sixteen months, the Russian Federation’s full-scale invasion of Ukraine has been marked by its frequent targeting of civilian objects, resulting in over 24,000 reported civilian casualties in Ukraine to date.

The Russian Federation’s attacks on civilian targets appear to be aimed at eroding political and public support within Ukraine for the war, and degrading the country’s will to defend itself. This method of warfare – often described throughout history as “strategic bombing” –  is not unprecedented, and has previously been resorted to by numerous wartime leaders, starting with the Italian General Giulio Douhet in the 1920s and then, most prominently, by the belligerents on both sides during World War II. Put simply, the military tactic of strategic bombing seeks to target civilians, residential areas or vital civilian infrastructure (also known as “civilian objects”) in a deliberate attempt to undermine the morale and will of the people.

Modern warfare is, however, not unregulated. The international legal order has evolved significantly from the time of the First and Second World Wars, the latter resulting in over 45 million civilian casualties, to establish clear rules on which activities may and may not be conducted during war time, also known as International Humanitarian Law or the Law of Armed Conflict.

As explained below, the Russian Federation’s attacks on civilians and civilian objects, which appear to deploy the same strategy of “strategic bombing,” contravene established rules and principles of modern International Humanitarian Law.

International Humanitarian Law and the rules of warfare

As a result of the atrocities inflicted on the civilian population in World War II, new international treaties were created with specific rules for the protection of civilians during times of war. In 1949, four new Geneva conventions were adopted, three were updated and improved versions of previous Geneva Conventions, however one was specifically developed for the protection of civilians during war time (Geneva Convention (IV)). These four 1949 Geneva Conventions were further supplemented by the 1977 Additional Protocol I (AP I), and the 1977 Additional Protocol II (AP II).

These instruments established the prohibition that it is never permissible to target civilians. For instance, Article 51(1) of AP I  provides for the general protection of the civilian population from the dangers from military operations. Moreover, Article 51(2) of AP I makes clear that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are also prohibited. Any attack on civilians would further constitute a “grave breach” (i.e. a particularly serious category of violations) under Article 85(3) of AP I. Additionally, it is also impermissible to attack civilian objects (such as housing complexes, places of worship, schools) as they do not make an effective contribution to the military effort or offer a definite military advantage (in other words, they do not constitute military objectives).

The cardinal nature of these principles is recognized not just in the treaties but also under customary international law, which are the rules that states have accepted as binding among themselves. Of note, the International Court of Justice in the Advisory Opinion on the Legality of the Threat of Nuclear Weapons has affirmed that it is an “intransgressible principle of international customary law” that states must never make civilians the object of attack and must consequently, never use weapons that are incapable of distinguishing between civilian and military targets. The International Committee of Red Cross has also concluded in its extensive Customary International Humanitarian Law study that the principles of distinction between civilians and combatants, civilian objects and military objectives, and the prohibition against indiscriminate attacks have achieved customary status.

All states must abide by these customary rules. The Russian Federation, both as a signatory to Geneva Convention (IV) and AP I, and in any event as a participant in the international order, is bound to abide by the protections accorded to civilians. In October 2019, the Russian Federation had reportedly sought to withdraw from AP I.  There is some uncertainty as to the scope of Russia’s withdrawal from AP I. The Kremlin’s announcement suggests that the Russian Federation was seeking to withdraw from the jurisdiction of the International Fact-Finding Commission (a body tasked to investigate allegations of violations of International Humanitarian Law) while Western media suggests that the withdrawal was from the entire AP I altogether. Regardless of the Russian Federation’s intent and the scope of its withdrawal, it remains, as with all states, bound to abide by the customary law which renders it unlawful to target civilians.

The Russian Federation’s past practices with strategic bombing

This is not the first time in recent history that the Russian Federation has deliberately targeted civilian populations during military campaigns. During the First and Second Chechen Wars in the 1990s, Russian artillery and air forces targeted Chechnya’s capital, Grozny, in the heaviest bombing campaigns in Europe since the Second World War.

In Syria, the Russian Federation and its allies have carried out numerous attacks on civilian infrastructure, namely hospitals, schools and markets – places where regular civilians seek care, education, medical assistance, and food. During the bombing campaign of Aleppo in September and October 2016 alone, over 440 civilians were reportedly killed as a result.

The current strategy of attacking civilians being pursued in Ukraine today, thus parallels campaigns previously carried out in Chechnya and Syria just to name a few.

The Russian Federation’s current attacks on civilians in Ukraine

In April 2023, the United Nations Office of the High Commissioner for Human Rights (OCHR) recorded over 22,734 civilian casualties in Ukraine, with many more likely yet to be reported. According to this report, in April 2023 alone, 93% of civilian casualties were harmed by “explosive weapons with wide area effects.” Between October 2022 and January 2023, the OCHR reported that there were at least 116 civilians killed and 37 injured as a result of Russian strikes on critical energy infrastructure, causing emergency blackouts, and crippling access to water, heat or electricity during the cold winter months. At least 107 medical facilities and 179 educational facilities were damaged or destroyed as a result of Russian bombings.

The Russian Federation categorically denies any wrongdoing. In February 2022, the Kremlin stated that Russian armed forces neither threatened civilians nor struck civilian objects. Since then, Russian officials either do not acknowledge Russia’s attacks on civilian and critical infrastructure at all, attempt to “justify” them, or deny them altogether. Specifically, the Russian Federation’s narrative revolves around claims that the Russian military uses “high-precision weapons,” which “exclude any attacks on civilian infrastructure,” or justifications that Ukrainian forces use civilian objects for military purposes, or that if the critical civilian bombing targets can be classified as “related to military potential” they are “subject to strikes.”

However, a closer inspection of specific incidents strongly suggests that such justifications do not stand up under scrutiny.

For example, one of the deadliest civilian attacks took place on March 16, 2022, against the Mariupol Drama Theatre, a designated gathering place for people that had lost their homes, which was sheltering hundreds of civilians at the time. While Russia’s Foreign Ministry denied this attack by declaring that “Russia’s armed forces don’t bomb towns and cities,”the Ukrainian authorities initially stated that at least 300 people were killed as a result of the strike, with subsequent independent investigations estimating 600 victims.

A few months later, the Russian military carried out a missile strike in the Odessa region on July 1, 2022, that impacted an apartment building and killed at least 21 civilians, which was soon followed by the bombing of an apartment complex in Chasiv Yar on July 9, 2022, killing 48 people. On January 14, 2023, an apartment building in Dnipro was hit during another missile attack, killing at least 40 people. On April 28, 2023, a Russian missile struck a nine-story residential building in Uman, killing 23 people. The aforementioned attacks are but a few examples that cannot be justified as creating a military advantage for the Russian Federation.

When commenting on the November 2022 attacks on Ukraine’s power grid, Putin’s press secretary, Dmitry Peskov stated that the attacks were the result of Ukrainian government’s refusal to negotiate with Russia: “the unwillingness of the Ukrainian side to settle the problem, to start negotiations, its refusal to seek common ground, this is their consequence.”Peskov further noted that“the leadership of Ukraine has every opportunity to bring the situation back to normal, has every opportunity to resolve the situation in such a way as to fulfill the requirements of the Russian side and, accordingly, stop all possible suffering of the local population.” Taken on its face, this statement appears to acknowledge the Russian Federation’s pursuit of the strategic bombing strategy and its intent to effectively bomb Ukraine’s civilian population “into submission.”

The Russian Federation’s choice and use of weapons in this war is also in breach of International Humanitarian Law, as summarized above by the ICJ Advisory Opinion, which requires that states never use weapons that are incapable of distinguishing between civilian and military targets. Numerous independent reports record the use of indiscriminate weapons by the Russian military in civilian populated areas (see Report of the Independent International Commission of Inquiry on Ukraine, Cluster Munition Monitor 2022 and report of the Human Rights Watch). These include cluster munitions which cannot be aimed at a specific military target, but rather disperse deadly submunitions over a large territory. Similarly, the recent alleged usage of incendiary weapons (munitions that produce fire through a chemical reaction and inflict exceptionally severe injuries) constitutes further evidence that Russian forces are acting in disregard for the civilian population, causing widespread and disproportionate harm to Ukrainian civilians.

In sum, the Russian Federation has carried out a consistent policy of striking civilian targets in Ukraine, repeatedly bombing civilians and civilian infrastructure. Based on all available evidence, these attacks do not – and cannot have been primarily designed to – degrade the military capabilities of the Ukrainian army. Rather, these strikes appear to be consistent with the tactic known as “strategic bombing,” designed to degrade the morale and will of the Ukrainian people to continue the war effort, and to put pressure on the Ukrainian government to enter into negotiations with the Russian Federation.

Conclusion

In modern times and drawing from the painful lessons of the previous World Wars, the international community has decided that it is never permissible to aim military strikes against civilian targets – nor against the morale and will of the people as a whole. The Russian Federation’s deployment of “strategic bombing” attacks on Ukrainian civilians and its use of indiscriminate weapons in Ukraine violate these fundamental principles.  

Re-allocation of Land in Occupied Territories

Re-allocation of Land in Occupied Territories

READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE

Authors: PILPG and Orrick, Herrington & Sutcliffe

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

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

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

Illegality of Annexation

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

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

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

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

Illegal Use of Force and Legal Status of Occupation

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

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

Occupation and Settlement Under the Fourth Geneva Convention

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

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

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

Additional Applicable International Law

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

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

Legal consequences and remedies for settlers

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

Conclusion

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

Photo by Nico Smit on Unsplash