By Justin Malzac
It goes without saying that the armed conflict between Russia and Ukraine is a humanitarian disaster. Some estimates suggest over one million Ukrainians have fled the country in the ten days since Russia’s egregious and unlawful invasion of another sovereign state. It is a terrible situation on all accounts. However, this conflict represents the first major international armed conflict—IAC, as opposed to a non-international armed conflict or NIAC—in recent years, and thus provides fertile ground to refresh our understanding of the longstanding laws of war. This conflict only proves that, contrary to what some have suggested, the risk of conventional, state-on-state warfare is not over. Despite being over 100 years old, the Hague Regulations are clearly still relevant today.
This article examines several stories that have emerged from the conflict, to assess whether a law of armed conflict (LOAC—also known as International Humanitarian Law or IHL) violation may have occurred. To do so, this analysis relies heavily on the DOD Law of War Manual, as well as the International Committee of the Red Cross’s (ICRC) list of customary international law rules relating to armed conflict. Like the United States, Russia is not a party to Additional Protocol I—an expansion of the Geneva Conventions that updates and expands many of the rules of war—having withdrawn in 2016. No attempt will be made to verify the facts of each case, and this is not an attempt to certify that specific war crimes have been committed. Rather, we are engaging in an academic exercise of old, intellectual muscles that have not been worked in some time.
To begin, it is important to define what we mean when we say “war crimes.” This delicate term is often thrown about by the media with reckless abandon. But in a legal forum, it should have a strict meaning. For the sake of clarity, we will use the definition of “war crime” in the ICRC Commentary. In this sense, a “war crime” only refers to a violation of the jus in bello, that is, the law that applies during an armed conflict. This body of law is based primarily on the Hague and Geneva Conventions. It does not refer to violations of the jus ad bellum, or the law that governs the use of force between states outside of conflict and the resort to armed conflict by states. This distinct and separate body of law is based on the UN Charter, the Rome Statute, and other peacetime treaties governing the use of force and crimes against humanity.
Russia’s unwarranted invasion of Ukraine—a sovereign state—is certainly a crime. However, because the invasion predated the condition of armed conflict (at least outside of Crimea and the Donbas), and thus constituted jus ad bellum, the invasion itself did not constitute a “war crime.” We should not forget that Russia had been in clear violation of the UN Charter long before launching a full invasion on February 24th, since Article 2(4) of the UN Charter also prohibits threats against the “territorial integrity or political independence” of another member state. Both Russia and Ukraine are UN Member states, so Russia has violated Article 2(4) with both threats and unlawful uses of force. Russia is no longer a party to the Rome Statute and the International Criminal Court (ICC), however, nor does it accept the compulsory jurisdiction of the International Court of Justice (ICJ). Therefore, the jurisdiction of international courts for Russian crimes of aggression is unlikely. Russia can still fall under ICJ jurisdiction for matters relating to other treaties it is a party to, and accordingly, Ukraine has filed an application with the ICJ offering a somewhat unconventional argument relating to the Genocide Convention. Russia is also still a party to the Hague and Geneva Conventions, and it is bound by those elements of LOAC that are customary norms.
One of the most interesting aspects of the conflict in Ukraine is the incredible resolve of the general populace and the number of civilians who have joined the fight. It represents a phenomenon that has not been seen in a major international armed conflict in some time—a levée en masse. This occurs, only during IAC, when civilians in non-occupied territory spontaneously take up arms to resist an approaching, invading force. As long as these civilian fighters are not yet constituted into regular military units, they are considered a levée en masse. How this changes the nature of the battlefield, as we have become used to it over the past two decades of NIAC, is that these civilian fighters are considered full combatants, with all privileges that come along with such status. They may carry arms openly, they may lawfully attack and kill enemy combatants, and they must be treated as POWs if captured. They are also lawful military targets for the other side. Since those participating in a levée en masse are not required to wear distinctive insignia or uniforms like other combatant groups, it can become difficult to distinguish who is a combatant. It is probably a safe argument that any civilian openly carrying arms in Ukraine is a fighter. Unlike in a NIAC, where crime and threats of civil violence may require civilians to arm themselves for personal defense, there is only one clear reason in Ukraine today why a civilian would carry an AK-47 on the streets.
It is important to note that only native inhabitants of areas under the threat of invasion may participate in a levée en masse. Non-inhabitants, such as foreign fighters, do not qualify. This is an important distinction, because the Government of Ukraine has called for foreign fighters to join the conflict as part of an “International Legion,” and different rules would apply to these fighters. If adopted as a formal unit of the Ukrainian military (along the lines of the French Foreign Legion), these fighters become regular military combatants and must meet all the requirements of the LOAC. If they constitute themselves into private units, but fall under the direction of the Ukrainian state (i.e., “belonging to a party to the conflict”), they may be considered a volunteer corps. The difference between such a group and a levée en masse is that the volunteer corps must have a commander and must wear a distinctive insignia. In the latter case, it is important to distinguish between a legitimate volunteer corps and mercenaries, who do not receive combatant protections. The key distinction between mercenaries and state-sponsored foreign fighters is whether they are “motivated mainly by the desire for private gain and be paid substantially better than the soldiers of the armed forces which hire them.” Russia has suggested it will not treat foreign fighters as POWs and even try to prosecute them, describing them all ex-ante as “mercenaries.” This is a clear violation of the LOAC, as in cases of ambiguity, a belligerent has an obligation to treat captured personnel as POWs until their true status can be determined. It is also hypocritical, since Russia employs actual mercenaries in the form of the Wagner Group, sending them into Ukraine to assassinate key Ukrainian leaders (also a possible war crime depending on the target, see below).
At the start of the conflict, reports suggested that Russian troops had crossed into Ukraine wearing Ukrainian military uniforms or disguised as NGOs. Later, reports suggested that Russian soldiers used enemy uniforms to capture Ukrainian vehicles. While the wearing of enemy uniforms is not strictly prohibited, personnel captured in enemy uniform lose their protections and may be treated as spies or saboteurs. However, conducting an attack while dressed in enemy uniform is a violation of the prohibition in the Hague Regulations against using enemy uniforms to kill or wound treacherously (though not technically perfidy) and would be a war crime. Much would depend on the manner in which the Ukrainian vehicles were “captured.” If any combat occurred, it would constitute a LOAC violation. Of course, this is not the first time Russian troops have operated without proper insignia. We only need to recall Crimea in 2014 and the “little green men” who, denied by the Kremlin to be state forces, nonetheless facilitated Russia’s unlawful annexation of that territory.
As the conflict progressed, it was reported that Ukrainian President Volodymyr Zelensky and other Ukrainian leaders were being targeted by Russian “hunter” units, including special forces from Chechnya. According to these reports, Zelensky’s family was also being hunted. It is interesting to note that, unlike the United States, and contrary to some reporting, the President of Ukraine is not the “commander-in-chief” of the military. He is also clearly not a uniformed member of the armed forces. Therefore, he is not a regular combatant. However, as Zelensky’s public comments and actions seem to indicate, he is providing authoritative direction to the military defense of his country. It is likely, depending on the scope of his involvement, that he is taking a “direct part in hostilities” and has lost his civilian status protections. As noted in the DOD Law of War Manual, direct participation includes “planning, authorizing, or implementing a combat operation against the opposing party, even if that person does not personally use weapons or otherwise employ destructive force in connection with the operation” (emphasis added). Therefore, Russian special forces targeting the president for potentially lethal action is not a crime. However, a direct participation assessment would need to be made for all potential targets of the civilian administration. The country’s energy minister, for example, is an unlikely candidate. Many have suggested that Russia’s ultimate intent is to eliminate the entire Ukrainian regime, which if true, would almost certainly involve a number of unlawful killings or detentions. It also goes without saying that the deliberate targeting and assassination of these leaders’ families would represent an egregious violation of long enduring rules of war.
Regarding matters of energy, Russia was reported to have attacked a nuclear plant in Ukraine, Europe’s largest. Despite commentary to the contrary, attacks on nuclear facilities are not strictly prohibited under the LOAC as applicable to this conflict. Additional Protocol I does strictly outlaw attacks on installations containing dangerous forces, even if otherwise valid military objectives, “if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population” (emphasis added). As noted above, Russia is no longer a party to Additional Protocol I, and would only be bound by the less severe customary rule. This is described in the ICRC’s Commentary, Rule 42, which includes a statement that nuclear plants and other installations containing dangerous forces may be attacked if they constitute legitimate military objectives. However, as with any other target, and especially dual-use objects, a proportionality assessment must be conducted. That is to say, the expected civilian harm incidental to such attacks must not be excessive in relation to the concrete and direct military advantage gained. According to the IAEA, “none of the safety systems at the plant were affected, and there was no release of radioactive material.” The casualties also seem to have been light. On the other hand, what Russia gained militarily from seizing this plant (the intent never seems to have been to outright destroy it), was to severely curtail the energy capacity of an enemy belligerent, among other things. Based on these presumed facts, it was likely a proportional and lawful attack. That being said, as the occupying force, Russia is now responsible for the safety and security of the facility. Recent reports have not been favorable.
Also related to targeting, it was reported that a Russian airstrike on a civilian radio tower may have damaged a Holocaust memorial site. This presents two issues worth addressing. The first is the responsibility with regard to cultural objects. Combatants must take care to avoid damaging cultural objects, such as religious, educational, or historic buildings and sites. The ICRC Commentary goes so far as to suggest that “special care is required to avoid damage to some of the most precious civilian objects.” One might reasonably argue that the site of one of the worst massacres of Jews during World War II constitutes a “most precious civilian object.” However, because the memorial site was not deliberately targeted, and because this seems to have been a calculated, precision strike, we can infer that the required precautions were taken.
What is more significant is the attack on the radio tower itself. The LOAC principle of distinction requires that combatants only target and attack legitimate military objectives. Unless directly participating in hostilities, civilians and their property must not be attacked. The DOD Law of War manual provides a two-part test for determining whether an object that is not military by nature is a military objective: “(1) that the object somehow makes an effective contribution to military action; and (2) attacking, capturing, or neutralizing the object, in the circumstances, offers a definite military advantage.” Simply reporting news and fostering communication within the country would not be contributing to military action. However, comments by the Russian Ministry of Defense coinciding with the attack suggest they believed the site represented “infrastructure of Ukraine’s intelligence services.” The legality of the attack thus turns on whether this statement accurately reflects the understanding of the Russian commanders who directed the strike, since decisions by military commanders are judged by the good faith assessments made of the information available to them at the time.
More recently, it has been reported that Russia was employing “cluster bombs” in Ukraine. More properly known as “cluster munitions,” these weapons are highly controversial due to their indiscriminate nature and since some of the bomblets may linger on battlefields long after the war is over. That being said, and once again contrary to what is being reported in the media, cluster munitions are not a per se violation of international law, and in fact, they are less regulated than other types of weapons. For example, the Chemical Weapons Convention has 193 state parties, as compared to only 110 parties to the Convention on Cluster Munitions (CCM). Like the United States, Russia is not a party to the CCM. The use of cluster munitions by Russia, therefore, is bound by the principles of distinction and proportionality. As noted in the DOD Manual, US policy argues that cluster munitions (and incendiaries) can actually reduce the risk of incidental harm. A common example is that using such weapons against armor or infantry around a dam or other installation containing dangerous forces would pose less risk of releasing those forces than fewer, larger yield bombs. In the past, US policy regulated cluster munitions by requiring a maximum “dud rate” of less than 1%, reducing the risk of harm to civilians by the presence of unexploded ordinance after the conflict.
Under proportionality and distinction, Russia must only employ these weapons against legitimate military targets and only in a manner where the civilian harm does not outweigh the military gain. Unfortunately, it seems Russia is not taking required feasible precautions when using these weapons, which have struck civilian areas, including hospitals. Part of the proportionality process is assessing the variety of munitions available to the commander and choosing the one which meets the targeting requirements while minimizing incidental harm. Since the Russian military has access to precision munitions and limited yield bombs, it should not be employing cluster munitions in dense urban areas.
Lastly, there is the viral video showing a military vehicle running over a civilian car. Initial reports declared that it was a Russian tank, and that the driver had deliberately swerved to hit the oncoming car. As with much of the reporting from this war, however, things might not be exactly as they seem. First, a careful viewing of the video suggests that the driver of the tracked vehicle, a Stela-10 SAM, may not have had full control of the vehicle, which is visibly fishtailing before it even gets onto the main road. Second, and more importantly, it is impossible to determine which military was in control of the vehicle, since both the Russian and Ukrainian armed forces have Strela-10 SAMs in service. It has been argued that, due to the isolation of the individual vehicle (not escorted by other Russian vehicles), and the fact that it did not have the distinctive “Z” that Russia troops have been using as insignia, it is more likely that it was a Ukrainian military vehicle. Interestingly, if it turns out that this was a deliberate attack, it would be a war crime regardless of which state was responsible. This is because the LOAC makes no distinction between civilians based on nationality or location. It does not merely prohibit combatants from attacking “enemy” civilians, but rather all civilians. Ukrainian military attacks on Ukrainian civilians are a war crime just as must as Russian attacks on Ukrainians would be.
There are many more incidents and stories that can, and will, be examined as this terrible armed conflict continues. It will be important for these incidents to be investigated and analyzed, not only for the sake of justice and reconciliation, but also as examples to reinvigorate the lost study of traditional IAC law. This understanding is important for informing the public and getting past some of the sensationalist rhetoric that now floods our media and political discourse.
BIO:
Justin Malzac is the Senior Paralegal at a DOD joint component command and has worked in the field of National Security Law for almost a decade. He has an M.A. in History from Pittsburg State University and a B.A. in English from the University of Minnesota. He was previously published in the American University National Security Law Brief, the International Journal of Korean Studies, and is pending publication with the Harvard National Security Journal Online and the Georgetown Journal of International Law Blog. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the United States Army, the Department of Defense, or the United States Government.
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