Legal Basis for Ukraine’s Peace Formula

Legal Basis for Ukraine’s Peace Formula

Read the original on the Center for Civil Liberties website

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

Introduction

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

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

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

What is the Peace Formula asking?

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

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

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

The Peace Formula under International Law

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

Read the original on the Center for Civil Liberties website

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

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

Introduction

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

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

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

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

Responsibility of third party States under the law of neutrality

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

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

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

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

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

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

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

Responsibility of third party States under international humanitarian law

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

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

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

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

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

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

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

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

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

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

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

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

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

Responsibility of third party States under Articles on State Responsibility

What is State complicity?

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

State complicity and Articles on State Responsibility

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

Photo by Joshua Olsen on Unsplash

Violations of International Humanitarian Law Should Lead Toward International Criminal Responsibility

Violations of International Humanitarian Law Should Lead Toward International Criminal Responsibility

Read the original on the Center for Civil Liberties website

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

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

Russia’s “Liberation Narrative” is Legally Flawed

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

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

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

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

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

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

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

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

Legal Accountability

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

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

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

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

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

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

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

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

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

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

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

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

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.