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RWI Affiliated Professor, & Visiting Professor of International Law, The Fletcher School of Law & Diplomacy (Tufts University)
Several media outlets have recently reported allegations of war crimes being committed in the Russia-Ukraine conflict. War crimes are criminal violations of the International Law of Armed Conflict, also known as International Humanitarian Law (IHL). The great majority of the applicable rules of International Humanitarian Law (IHL) are found in the Hague Conventions of 1907 and the Geneva Conventions of 1949, as well as in the Additional Protocols thereto.
As implied above, not every violation of International Humanitarian Law is a war crime. Although all violations of IHL may give rise to the responsibility of the state, only the most grave abuses will give rise to the criminal responsibility of the individual perpetrator. For example, a recent news item concerned filming and publicly disseminating videos of Russian prisoners of war. While this may constitute a violation of the Third Geneva Convention of 1949, it would not be considered a war crime. Intentionally targeting a civilian population, on the other hand, is both a violation of IHL, giving rise to state responsibility, and also a war crime, for which the individual perpetrator bears criminal responsibility.
Most of the recent war crimes allegations concern targeting issues, which will be the focus of this blog post. The modern formulations of the targeting rules are found in Protocol I of 1977. Protocol I is fully applicable to this conflict, as both Ukraine and Russia are parties to Protocol I without any reservations. Indeed, when the Soviet Union deposited its instrument of ratification, it declared that “the Supreme Soviet of the USSR chose to ratify the Protocols without any reservation whatsoever,” unlike some of its Western counterparts.
The Basic Rule of Targeting
Part IV of the Protocol regulates targeting. The basic rule is that the parties to the conflict must distinguish between combatants and civilians, and between military objectives and civilian objects. According to art. 51(2), “The civilian population as such, as well as individual civilians, shall not be the object of attack.”
This protection is afforded to civilians, “unless and for such time as they take a direct part in hostilities.” As for objects, art. 52(1) states, “Civilian objects shall not be the object of attack or of reprisals.” This does not mean, however, that any attack that results in civilian casualties or damage to civilian objects is illegal. These basic rules only prohibit making them the “object” of attack. In other words, in the course of an attack against a military objective, a degree of collateral damage is permissible. How much collateral damage? Art. 51(5)(b) imposes an upper limit, prohibiting attacks which may be expected to cause collateral damage that would be “excessive in relation to the concrete and direct military advantage anticipated.” This is also known as the proportionality requirement.
Sometimes the application of these rules is straight forward. Consider the recent attack on a military barracks. The soldiers inside are combatants. Targetable. The building housing the soldiers would qualify as a military objective. Targetable.
Other times, the delineation between targetable and non-targetable individuals, and between military objectives and civilian objects, can get a bit murky.
When Civilians Participate in the Hostilities
In the early days of the conflict, the Ukranian president called upon the people of Ukraine to resist the invaders and began to distribute weapons to civilians. Are those civilians who subsequently took up arms targetable? The short answer is yes. If they “take a direct part in hostilities,” they lose their protection from direct attack for the duration of their direct participation. Some of these individuals may have completely lost their civilian status by becoming transformed into combatants, for example by being integrated into the Ukranian armed forces or by participating in a so-called levee en masse, which is defined in art. 4(A)(6) of the Third Geneva Convention of 1949 as “[i]nhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units…”
Other cases are more difficult. One news story showcases the efforts of Ukranian women making Molotov cocktails. Is it permissible to directly target a Ukranian grandmother making Molotov cocktails while sitting in her kitchen? While she is unlikely to have transformed into a combatant, is she taking “a direct part in hostilities”? This of course is a matter of interpretation. The ICRC Interpretive Guidance on Direct Participation in the Hostilities would seem to recommend considering whether this was part of a particular operation or whether it would instead be analogous to working in a weapons factory far from the frontlines. But even if the grandmother is not targetable, what about her stash of Molotov cocktails? Or the kitchen in which they are being made? This brings us to the issue of defining military objectives.
Targeting Objects
Article 52(2) of Protocol I defines military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” In other words, any object has the potential to become a military objective, for example, if it is used in such a way as to meet this test. At the same time, art. 52(3) provides an additional layer of protection for objects which are ”normally dedicated to civilian purposes,” by creating a presumption, in case of doubt, against a finding that such object has become a military objective through “use.”
The Molotov cocktails themselves would be a military objective. It is also arguable that the kitchen has become a military objective. If the grandmother had retained her civilian protection against direct attack, then any harm to her would have to be taken into account as collateral damage in the proportionality assessment.
Specially Protected Objects
Recent news articles have also revealed attacks against or in the vicinity of certain objects that enjoy special protection under IHL. Hospitals, for example, are specially protected under article 18 of the Fourth Geneva Convention, which provides, “Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.” As with all other objects, this protection may be lost if the hospital is “used to commit, outside their humanitarian duties, acts harmful to the enemy.” However, even where this protection is lost, hospitals benefit from an absolute duty to warn in such cases. According to art. 19, the protection may cease “only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.”
Nuclear power stations also receive special protection under IHL. Article 56 of Protocol I protects works and installations containing “dangerous forces,” given the intensely and indiscriminately destructive consequences of the release of such forces. Art. 56(1) prohibits direct attack, and even prohibits attacking nearby military objectives “if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.” While this protection may be removed, it can only happen in very narrow circumstances. According to art. 56(2)(b), the special protection against attack afforded to nuclear power stations will cease “only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support…”
As for military objectives located at or near a nuclear plant, they may be targeted only if those objectives “are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” (art. 56(2)(c)
Precautionary Measures
One final targeting requirement must be born in mind. Article 57 of Protocol I mandates that the parties to the conflict take precautionary measures. In particular, art. 57(2)(a)(ii) requires the parties to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects…” This is in addition to the proportionality requirement. In other words, even if the expected collateral damage of an attack would not be disproportionate to the military advantage anticipated, the parties must still attempt to further reduce collateral damage to the extent feasible.
The Question of Criminality
Would a violation of any of these rules constitute a war crime? While not exhaustive,[1] the Rome Statute of the International Criminal Court sets forth a comprehensive list of acts that are widely accepted to constitute to war crimes in international law. Among the acts criminalized in art. 8 of the Statute are the following:
- Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
- Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
- Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
- Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Are there any possible violations of the targeting rules that are not captured by this list of war crimes? First, note that there are no explicit criminal sanctions in the ICC Statute for the failure to take precautionary measures as such. This includes the special duty to warn before attacking hospitals that have lost their protection from attack. Second, the threshold for a criminal violation of the proportionality requirement is higher than that set forth in Protocol I. While the Protocol refers to “excessive” collateral damage, the expected collateral damage to constitute the war crime listed above must be “clearly excessive.”
As noted at the outset, the standards for state responsibility and individual responsibility diverge. This is owing in part to the distinct nature of criminal responsibility. A breach giving rise to state responsibility entails an obligation to make reparation. A breach giving rise to individual criminal responsibility entails an obligation to prosecute and punish the individual perpetrator. The gravity of this latter legal consequence typically demands a higher threshold of culpability.
[1] Other acts may constitute war crimes under customary international law. In addition, states have broad discretion to regard other acts as war crimes under their domestic law.