From ... in History — Feb 23, 2022

Russia, Ukraine & International Law: On Occupation, Armed Conflict and Human Rights

(Kyiv) – Russia’s parliament adopted a resolution on February 16, 2022 requesting President Vladimir Putin to recognize as independent states two areas in eastern Ukraine held by Russia-backed armed groups. On February 21, President Putin signed two decrees recognizing the two areas’ independence and submitted them to parliament for ratification. Following that, he issued orders to Russia’s armed forces, which have been amassing at the border with Ukraine for months, to carry out “peacekeeping” in the self-proclaimed “Donetsk People’s Republic”(“DNR”) and “Luhansk People’s Republics” (“LNR”). On February 22, the Federation Council, the upper chamber of Russia’s parliament, approved Putin’s request to deploy the armed forces. In public comments on February 22, Putin stated that the boundaries of the territories whose independence Russia has recognized extend to substantial areas of the Donetsk and Luhansk regions that are under Ukrainian government control. Fighting has escalated in Ukraine’s eastern region of Donbas amid Russia’s unprecedented military build-up along its border with Ukraine. Since mid-February, the Special Monitoring Mission of the Organization for Security and Co-operation in Europe (OSCE) has been reporting significant daily increases in violations of a 2014 ceasefire agreement in conflict-affected areas along the line of contact. Irrespective of any self-proclaimed label, under international law, including the Geneva Conventions, Russian troops in Ukraine are an occupying force.

The situation in eastern Ukraine, if Russian troops formally enter the territory, would fall within the meaning of occupation in the Fourth Geneva Convention of 1949, as discussed below. Neither sovereignty claims by local “authorities” in the self-proclaimed “LNR” or “DNR”, nor their recognition as independent by the Russian government, affects the applicability of the international law of occupation.

The armed conflict between government forces and Russia-backed armed groups has taken a heavy toll on civilians in eastern Ukraine.

The conflict, ongoing for almost eight years, has killed over 16,000 people, including both combatants and civilians, and has displaced close to 1.5 million.

The fighting has also led to widespread damage and destruction of civilian infrastructure, including homes, hospitals, and schools on both sides of the 427-kilometer line of contact, which separates areas held by Ukrainian government forces from those under the control of the armed groups from “DNR” and “LNR”. What international law governs an armed conflict between Russia and Ukraine? Hostilities between Russian armed forces and Ukrainian armed forces constitute an international armed conflict governed by international humanitarian treaty law (primarily the four Geneva Conventions of 1949 and its first additional protocol of 1977 (Protocol I), and the Hague Conventions of 1907 regulating the means and methods of warfare), as well as the rules of customary international humanitarian law. Both Ukraine and Russia are parties to the 1949 Geneva Conventions and Protocol I. What are the basic principles of the laws of war? International humanitarian law, or the laws of war, provides protections to civilians and other noncombatants from the hazards of armed conflict. It addresses the conduct of hostilities—the means and methods of warfare—by all parties to a conflict. Foremost is the rule that parties to a conflict must distinguish at all times between combatants and civilians. Civilians may never be the deliberate target of attacks. As discussed below, parties to the conflict are required to take all feasible precautions to minimize harm to civilians and civilian objects and not to conduct attacks that fail to discriminate between combatants and civilians, or would cause disproportionate harm to the civilian population. Does international human rights law still apply in Ukraine? Yes. International human rights law remains in effect and continues to apply at all times, including during armed conflict and occupation, to which the laws of war also apply. In some circumstances a humanitarian law norm may trump a human rights norm, as the lex specialis, or the more specific norm for the particular circumstance. Ukraine and Russia are both party to a number of regional and international human rights treaties, including the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

These treaties outline guarantees for fundamental rights, many of which correspond to the rights to which combatants and civilians are entitled under international humanitarian law (e.g. the prohibition on torture and inhuman and degrading treatment, the requirements for nondiscrimination, the right to a fair trial). While both the ECHR and the ICCPR permit some restrictions on certain rights during wartime or an officially proclaimed public emergency “threatening the life of the nation,” any reduction in rights during a public emergency must be of an exceptional and temporary nature and must be limited “to the extent strictly required by the exigencies of the situation.” Certain fundamental rights—such as the right to life and the right to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and rights to a fair trial—must always be respected, even during a public emergency. What can be a lawful target of a military attack? The laws of war limit attacks to “military objectives.” Military objectives are personnel and objects that are making an effective contribution to military action and whose destruction, capture, or neutralization offers a definite military advantage. This would include enemy fighters, weapons and ammunition, and objects being used for military purposes, such as buildings and vehicles. While humanitarian law recognizes that some civilian casualties are inevitable during armed conflict, it imposes a duty on parties to the conflict at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives. Civilians lose their immunity from attack during the time they are “directly participating in the hostilities” – such as by assisting combatants during a battle. The laws of war also protect “civilian objects,” which are defined as anything not considered a military objective. Direct attacks against civilian objects—such as homes, apartments and businesses, places of worship, hospitals, schools, and cultural monuments—are prohibited unless they are being used for military purposes and thus become military objectives. This would be the case if military forces are deployed in what are normally civilian objects. Where there is doubt about the nature of an object, the warring party must presume it to be civilian. What kinds of military attacks are prohibited? Direct attacks on civilians and civilian objects, as discussed above, are prohibited.

The laws of war also prohibit indiscriminate attacks. Indiscriminate attacks are those that strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects. Military commanders must choose a means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed. Attacks that violate the principle of proportionality are also prohibited. An attack is disproportionate if it may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack. Anti-personnel landmines and cluster munitions are prohibited by international treaty and should never be used because of their inherently indiscriminate nature. What are the obligations of parties to the conflict regarding fighting in populated areas? International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on parties to the conflict to take steps to minimize harm to civilians.

The laws of war require parties to a conflict to take constant care during military operations to spare the civilian population and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects.

These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving “effective advance warning” of attacks when circumstances permit. Forces deployed in populated areas must avoid locating military objectives near densely populated areas and endeavor to remove civilians from the vicinity of military activities. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to protect military forces or areas, making them immune from attack.

The attacking party is not relieved of its obligation to take into account the risk to civilians simply because it considers the defending party responsible for locating legitimate military targets within or near populated areas. The use of explosive weapons in populated areas, often referred to as EWIPA, heightens concerns of unlawful indiscriminate and disproportionate attacks. Heavy artillery and aerial bombs (weapons with a wide blast radius) and other indirect-fire artillery without adequate spotting (weapons for which the target is wholly unseen) against military objectives in populated areas are among the gravest threats to civilians in contemporary armed conflict.

The bombing and shelling of cities, towns, and villages kill and injure large numbers of civilians and inflict psychological harm. Reverberating, or long-term, effects include damage to civilian buildings and critical infrastructure, interference with services such as health care and education, and displacement of the local population.

The humanitarian risks are exacerbated when explosive weapons have wide area effects due to inaccuracy, a large blast radius, or the delivery of multiple munitions at the same time. Human Rights Watch has called for parties to armed conflict to avoid the use of explosive weapons with wide area effects in populated areas. What is meant by using human shields? The war crime of “shielding” has been defined as intentionally using the presence of civilians to make certain points, areas, or military forces immune from military attack. While it may be unlawful, as noted above, to place forces, weapons and ammunition within or near densely populated areas, it is shielding only when there is a specific intent to use the civilians to deter an attack. Opposing forces may attack a military target that is making use of human shields, but it is still obligated to determine whether the attack is proportionate—that is, that the expected loss of civilian life and property is not greater than the anticipated military advantage of the attack. Are parties to the conflict permitted to target infrastructure such as airports, roads, and bridges? Civil airports, roads, and bridges are civilian objects that become military objectives subject to attack if they are being used for military purposes or military objectives are located on or within them. Even then, the rule of proportionality applies, requiring the parties to the conflict to weigh the short- and long-term harm on civilians against the expected military advantage of attacking them.

They must consider all ways of minimizing the impact on civilians; and they should not undertake attacks if the expected civilian harm outweighs the anticipated military advantage. Do radio and television stations have special protection from attack? Attacks on broadcast facilities used for military communications are legitimate under the laws of war. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective: that is, if they are used in a way that makes an “effective contribution to military action” and their destruction in the circumstances ruling at the time offers “a definite military advantage.” For example, broadcast facilities could become military targets if they are used to send military orders or otherwise concretely to advance military operations. However, civilian broadcasting facilities do not become legitimate military targets simply because they broadcast pro-government or pro-opposition propaganda. It is unlawful to attack facilities that solely shape civilian opinion—these facilities do not directly contribute to military operations. Should broadcast facilities become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that attacking forces should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit.

They should take special precautions with buildings in urban areas, including giving advance warning of an attack whenever possible. Opposition forces are not prohibited under international law from occupying broadcast facilities (or other civilian structures except hospitals) and making use of them. However, the presence of opposition fighters or the use of the broadcast facilities for military purposes may make the facilities military objectives subject to attack. Do the laws of war regulate cyberattacks? Computer network attacks, or “cyberwarfare,” are not specifically addressed in the Geneva Conventions, but the basic principles and rules on the methods and means of warfare remain applicable. Cyberattacks must target military objectives and be neither indiscriminate nor disproportionate. For example, an attack on an electrical grid that causes long-term harm for the civilian population is likely to be unlawfully disproportionate whether carried out by airstrikes or cyberwarfare. Prohibitions on perfidy, collective punishment, and reprisals against civilians remain applicable. Fundamental rights are at stake when governments engage in cyberattacks or cyberwarfare. In 2015, the UN General Assembly endorsed a report by an appointed Group of Governmental Experts (UN GGE) that sets out a consensus view on the applicability of international humanitarian and human rights law to cyberspace and includes commitments to norms for state behavior.

These norms include not conducting or knowingly supporting information and communication technology (ICT) activity that intentionally damages critical infrastructure or otherwise impairs its use and operation to provide services to the public, as well as not knowingly allowing their territory to be used for internationally wrongful acts using ICTs. Recently a parallel UN GGE report has flagged examples of critical infrastructure providing essential services to the public to include not only hospitals but also energy, water and sanitation, education and financial services. Are internet and phone shutdowns in conflict areas lawful? Shutting down the internet during a conflict, including mobile data, which is regularly used for both civilian and military purposes, would need to take into account the basic principles of the laws of war, including of necessity and proportionality.

The principle of necessity permits measures that accomplish a legitimate military objective that are not otherwise prohibited by international humanitarian law. Shutting down the internet may serve a legitimate military purpose, such as denying belligerent forces a means of communicating with one another and carrying out attacks. However, the principle of proportionality prohibits actions in which the expected civilian harm is excessive in relation to the anticipated military advantage. Internet and phone shutdowns can cause considerable harm to the civilian population, including leading to possible injury and death by preventing civilians from communicating with each other about safety considerations, access to medical facilities, and sources of food and shelter.

They also hinder the work of journalists and human rights monitors, who can provide information on the situation on the ground, including the reporting of possible laws-of-war violations. Phone and internet shutdowns hamper the ability of humanitarian agencies to assess and provide assistance to populations at risk.

The lack of information regarding the conditions and circumstances facing the affected population may also increase the likelihood of injury and death. Similarly, under international human rights law, governments have an obligation to ensure that internet-based restrictions are provided by law and are a necessary and proportionate response to a specific security concern. General shutdowns violate multiple rights, including the rights to freedom of expression and information, and hinder others, including the right to free assembly. In their 2015 Joint Declaration on Freedom of Expression and Responses to Conflict Situations, United Nations experts and rapporteurs declared that, even in times of conflict, “using communications ‘kill switches’ (i.e. shutting down entire parts of communications systems) can never be justified under human rights law.” Do journalists have special protection from attack? Journalists, unless they are taking direct part in hostilities, are civilians and may not be targets of an attack. Any risks to journalists as part of the civilian population must also be verified in an attack in which such risk may be expected, and the risk must not outweigh the anticipated military benefit. While journalists may be subject to any legitimate limitations on rights, such as freedom of expression or freedom of movement, imposed in accordance with law and to the extent strictly required by the exigencies of the situation, they also may not be targeted for arrest, detention, or other forms of punishment or retaliation simply for doing their work as journalists. Who is entitled to prisoner-of-war status and how must POWs be treated? The Third Geneva Convention of 1949 states that prisoners of war (POWs) are combatants in an international armed conflict who have fallen into the hands of the enemy. Persons entitled to POW status include: members of the armed forces, members of militia or similar forces who meet certain conditions spelled out in the Third Geneva Convention, persons accompanying the armed forces without belonging to them, civilians taking up arms "en masse," and others. Captured journalists connected to the adversaries’ armed forces are also entitled to POW protections. POWs cannot be prosecuted for the mere fact of having participated in the armed conflict.

They may, however, be prosecuted for war crimes. Absent prosecution, POWs must be released and repatriated at the end of "active hostilities." Ultimate responsibility for the well-being of POWs lies with the “Detaining Power” -- that is, the central authorities -- and not simply the military units that have captured them.

The Third Geneva Convention regulates in considerable detail the rights and duties of POWs. Among the rights and duties likely to be most relevant, all of which are effective from the moment of capture, are: When can civilians be detained by a belligerent party and how must they be treated? The Fourth Geneva Convention, which addresses the responsibilities of an occupying power, such as Russia in Ukraine, permits the internment or assigned residence of protected persons only for “imperative reasons of security.” This must be carried out in accordance with a regular procedure permissible under international humanitarian law and allow for the right of appeal and for review by a competent body at least every six months.

The Fourth Geneva Convention provides detailed regulations for the humane treatment of internees. Anyone deprived of liberty must be provided with adequate food, water, clothing, shelter, and medical attention. Detained women must be held in quarters separate from those for men. Children deprived of their liberty, unless with their families, must have quarters separate from adults.

The ban against torture and other ill-treatment is one of the most fundamental prohibitions in international human rights and humanitarian law. No exceptional circumstances can justify torture. When committed as part of a widespread and systematic attack against the civilian population, torture constitutes a crime against humanity under customary international law and the Rome Statute that established the International Criminal Court. Must parties to a conflict provide humanitarian organizations access to prisoners-of-war and other detainees? The Third and Fourth Geneva Conventions require parties to a conflict to permit access by the International Committee of the Red Cross (ICRC) and other relief agencies to POWs and interned civilians.

The ICRC must be granted regular access to anyone deprived of their liberty to monitor the conditions of their detention and to restore contact with their families.

The ICRC has full liberty to select the places it wishes to visit and to interview people confidentially. Visits may only be refused for reasons of “imperative military necessity,” and as an exceptional and temporary measure. Other humanitarian agencies may request access to POWs and detained civilians.

The detaining authority shall facilitate such visits, though it may limit the number of humanitarian agencies visiting a person who is being held. What obligations do parties to the conflict have to populations in need? Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need.

The parties must consent to allow relief operations but may not refuse such consent on arbitrary grounds.

They may take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons. However, deliberately impeding relief supplies is prohibited. In addition, international humanitarian law requires belligerent parties to ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity. Who can be held responsible for violations of international humanitarian law? Serious violations of international humanitarian law committed with criminal intent—that is, deliberately or recklessly—are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the International Criminal Court statute and other sources, include a wide array of offenses—deliberate, indiscriminate, and disproportionate attacks harming civilians; hostage taking; using human shields; and imposing collective punishment, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Responsibility also may fall on people planning or instigating a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible. Who is primarily responsible for ensuring accountability for serious violations of international law? Ensuring justice for serious violations is, in the first instance, the responsibility of the country whose nationals are implicated in the violations. Governments have an obligation to investigate serious violations that implicate their officials or other people under their jurisdiction.

The government must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair-trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds. While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards. Can any war crimes or crimes against humanity committed in Ukraine be tried before the International Criminal Court? The International Criminal Court (ICC) is a permanent international court with a mandate to investigate, charge, and put on trial people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002. However, it can only exercise jurisdiction over these crimes if: Russia and Ukraine are not members of the ICC, but Ukraine accepted the court’s jurisdiction over alleged crimes committed on its territory since November 2013, and in so doing, the obligation to cooperate with the court. In December 2020, the ICC Office of the Prosecutor concluded its preliminary examination and announced that the criteria under the ICC’s founding treaty, the Rome Statute, had been met to open a formal investigation, but it has not yet requested permission from the court’s judges to formally open an investigation. Because the ICC is a court of last resort, domestic investigations and prosecutions could complement those of the ICC. Can other countries prosecute international crimes committed in Ukraine? Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction,” which refers to the ability of a country’s domestic judicial system to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals. Certain treaties, such as the 1949 Geneva Conventions and the Convention against Torture, obligate states to extradite or prosecute suspected offenders who are within that country’s territory or otherwise under its jurisdiction. Under customary international law, it is also generally agreed that countries are allowed to try those responsible for other crimes, such as genocide or crimes against humanity, wherever these crimes took place.

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Russia, Ukraine & International Law: On Occupation, Armed Conflict and Human Rights

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