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The War in Ukraine and the Law of Armed Conflict

Wayne Hopper, Legal Assistant

            As the conflict in Ukraine enters its fourth week, it has become clear that determined Ukrainian resistance has slowed the Russian advance. The initial Russian “shock and awe” campaign was a failure, and as a result Putin has been forced to regroup and reassess. Reports indicate that Ukrainian resistance has forced Russia to switch tactics. While supporting President Bashar al Asad’s regime in the Syrian Civil War, Russian forces developed a brutal and effective approach to warfare. As Russian forces approach the outskirts of major Ukrainian cities, they apply the tactics found to be so successful in Syria: Surround, Besiege, and Destroy. These tactics have resulted in an ever-growing civilian death toll, unspeakable human suffering, and outcry from the international community.

Generally speaking, a war crime is a violation of the Law of Armed Conflict whereby an individual can be charged with criminal responsibility for the actions of a country or its combatants. Nation-state entities cannot incur criminal responsibility for war crimes. War crimes are defined by a loose but established combination of international customs and humanitarian laws developed over time by precedents such as the Laws and Customs of War, the Geneva Conventions, and statutes created at the International Criminal Tribunal in The Hague (following the conflict in the former Yugoslavia). In 1998, some 150 countries attempted to establish a permanent international criminal court. In 2002, negotiations eventually resulted in the adoption of a governing statute for an International Criminal Court (ICC) to be located permanently at The Hague. The statute supplied the ICC with jurisdiction for acts of aggression, genocide, crimes against humanity, and war crimes. War crimes defined in the statute include several charges which may be occurring in Ukraine, such as “directing attacks against civilians,” “unlawful wanton destruction of property,” and “willful killing, or causing great suffering or serious injury to body or health.”

Russia’s shelling of populated cities and airstrikes against alleged civilian infrastructure with no apparent military or tactical value has raised an important question. Are Russia’s tactics tantamount to war crimes?

The Ukrainian city of Kharkiv sits in the northwestern part of the country, close to the long and winding border with Russia. Before the war began, it was a thriving city of about 1.5 million people, many of whom have since fled or been trapped. After about two weeks of fighting, Russian forces have surrounded the city, cut it off from all aid or supplies, and mercilessly shelled and bombed those left inside the city. The alleged shelling and bombing of hospitals, residential buildings, and other civilian infrastructure has resulted in noncombatant deaths, including women and children. While Ukrainian Defense Forces are putting up a determined resistance, the civilians left trapped are suffering unimaginably. Power and water services have been cut off. Fuel for heat and cooking is gone, and there isn’t much left to eat anyway. The Russian strangulation of Kharkiv has cut access to food, water, medicine, and other supplies. It has also prevented civilians from escaping the bombed-out landscape of the once vibrant city. There are credible reports of civilians who try to escape Kharkiv being fired upon by Russian troops.

Who, if anyone, will pay for these reported armed conflict violations? Even with all the precedent and progress thus far, no international laws are uniformly recognized. Only one hundred and twenty-two countries are State Parties to the ICC. As a result, it can be challenging to prosecute individuals wanted for war crimes from countries outside that group of ICC State Parties. For various reasons, countries may not cooperate in handing over their citizens or military and political leaders for prosecution.

Furthermore, there is often disagreement between the ICC State Parties regarding a uniform way to hold accountable those suspected of war crimes. Russia is not currently a State Party to the ICC.* Unless Russia were to lose the war and collapse as a nation, it is almost impossible to imagine a scenario where President Putin is held responsible for the misery and death his war in Ukraine has created. It is theoretically possible that Putin could offer a few low-level military commanders for prosecution as sacrificial scapegoats to the international community. But even that is unlikely, as the risks to himself would remain too great. The likely outcome is that no one faces justice for the war crimes in Ukraine. It is more likely that the international game of war and power will continue to be played at the expense of those caught in the middle.

*Other countries that have not ratified the governing statute of the ICC include the United States, China, India and Indonesia. (Source: Wikipedia)