Warning: this article is accompanied by an image that some may find distressing.
“International law is not just an empty promise.” These are the words of Jean-Marc Thouvenin, one of Ukraine’s legal counsel, before the International Court of Justice (ICJ) on February 27. Thouvenin was appearing during the recent oral hearings following the application of Ukraine for provisional measures based on the Genocide Convention.
But two weeks since the Russian war machine crossed into Ukraine, the images of civilian humanitarian suffering make people wonder whether international law has any value at all in the middle of an armed conflict. Where is international law within the “fog” of war? The relevant norms have plenty to say on this particular subject.
The Russian invasion of Ukraine flagrantly violates the post-second world war international legal order. The Russian invocation of individual or collective self-defence is of no legal merit. This remains the case even if you accept the most elastic interpretation of the notion of “imminent attack” which Russia might use to justify invading – such as “anticipatory” or even “preventive” self-defence. Similarly, Russian references to “genocide” in eastern Ukraine to justify its intervention cannot be substantiated and offer no justification for military action under international law.
Instead, Russia has violated the principle of jus ad bellum (the law relating to the prohibition of recourse to force). Its action constitutes an act of aggression in breach of the cornerstone legal principle of the prohibition of use of force, laid down in the UN Charter. The UN General Assembly has demanded that Russia immediately cease its illegal use of force against the territory of Ukraine in the strongest terms.
Apart from jus ad bellum, which makes the invasion itself illegal, the conduct of the war raises serious concerns with respect to jus in bello. This is the body of international law related to the way war is waged.
Treatment of civilians
As military operations are continuing, it can only be reiterated at this stage that confirmed violations of this body of law may trigger war crimes accusations. The provisions of the Geneva Convention (IV), which specifically deals with the treatment of civilians in wartime, on belligerent occupation will be of high relevance as long as Russian forces exercise effective control over parts of Ukraine.
In particular, international humanitarian law is defined by a series of principles. Among them the principle of distinction from the additional protocol to the Geneva Conventions, added in 1977, prescribes that:
In order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
This fundamental principle is supplemented by another part of the 1977 protocol, which further defines that attacks should be limited to military objectives. This also prohibits indiscriminate attacks. Meanwhile the protocol also establishes the principle of proportionality, which bans attacks where civilian losses would be excessive in terms of the military objective, and the principle of precaution, which governs precautions that must be taken before an attack on a military objective.
The principle of humanity, which “forbids the infliction of all suffering, injury or destruction not necessary for achieving the legitimate purpose of a conflict”, permeates the whole body of contemporary international humanitarian law and responds to the 19th century and discredited German doctrine of Kriegraison.
That doctrine says that in times of war, military necessity negates all other considerations. Modern international humanitarian law utterly rejects this idea and sets limits on the conduct of hostilities and the means and methods of warfare.
So, based on these provisions of international humanitarian law, targeting civilians and civilian objects in the way we have seen during Russia’s invasion of Ukraine is a flagrant violation of the laws of armed conflict. In simple terms, it is a war crime.
The 1977 additional protocol also prohibits the starvation of civilians. It forbids attacks on objects indispensable to the survival of the civilian population, such as food supplies and drinking water installations, among others. This is also recognised as a war crime under the Rome Statute, which is the founding instrument of the International Criminal Court in 1998 and also under “customary” international law, which exists parallel to treaty law.
So, while international law doesn’t actually prohibit siege warfare, it puts firm limits when civilians are affected. It prescribes that:
The parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.
Full force of the law
In light of the various rules of war in the Geneva Conventions and the additional protocols that updated it in 1977, it could be argued that the reports we have from various parts of Ukraine about Russian conduct of hostilities indicate alleged violations of international humanitarian law. The ICC prosecutor, Karim Khan QC, has already opened an investigation on the territory of Ukraine. His team of investigators is on the ground collecting evidence of alleged war crimes and crimes against humanity.
Meanwhile, the German Federal Prosecutor has announced that his office will also investigate alleged war crimes based on the the principle of universal jurisdiction which enables it to prosecute even for crimes that take place outside its borders, even if neither the victim nor the perpetrator are German nationals.
The dramatic events in Ukraine fundamentally challenge the basic premises of the international legal order as we know it. What will happen politically as a result of Vladimir Putin’s “military operation” remain to be seen. But international law is quite clear on what should be done as a result.