The fighting between Ukraine and Russia is intensifying. This past weekend, Ukrainian civilian buildings were even hit by the Russian army.
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This strategy, already put in the dock during the last Russian “special military operations” in Syria, Georgia and Chechnya, raises the issue of the law of war and war crimes.
According to the Office of the United Nations High Commissioner for Human Rights, war crimes are defined as “serious violations of international humanitarian law committed against civilians or enemy combatants during an armed conflict international or internal.
These violations entail the criminal liability of their perpetrators.
These crimes are also defined in Article 8 of the Rome Statute of the International Criminal Court, and are part, with crimes against humanity and the crime of genocide, of international crimes.
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The building of the International Criminal Court in The Hague, the Netherlands.
Each State can also bring the alleged perpetrators of these crimes before its own court.
If the purpose of an army with aims of occupations and regime change can be to undermine the morale of the defense and the population, do the most recent Russian abuses go beyond what is permitted under international law?
The Geneva Conventions, as the website of the International Red Cross recalls, form the cornerstone of what is known as international humanitarian law. They govern conduct during armed conflicts and aim to minimize the consequences of these wars on States and their populations.
If international law is often criticized for being only poorly applied, this section is less aware of this criticism thanks to the many coercive mechanisms for non-compliance with its provisions.
Four conventions, signed on August 12, 1949 and entered into force on October 21, 1950, form the main corpus of this right: the first Geneva Convention protects wounded or sick soldiers on land in time of war; the second, soldiers wounded, sick or shipwrecked at sea; the third applies to prisoners of war; and the fourth ensures the protection of civilian populations, particularly in occupied territory.
Around these texts exist many customary rules, but also various additional protocols. The most interesting is, in the context of this military aggression and the behavior of the occupier towards civilian populations, the first protocol (protocol I) additional to the Geneva Conventions, relating to the protection of victims of international armed conflicts.
Another important text is the Rome Statute of the International Criminal Court of Justice. It defines the international crimes over which the Court has jurisdiction, including “war crimes”, if they are committed on the territory of a State party or by one of its nationals. The UN Security Council can also give it jurisdiction over these crimes if the Court did not have it to begin with.
First of all, it is extremely important to consider that the entry of Russian forces into Ukrainian territory transforms them into an occupying power (Article 2 of the 4and Geneva Convention).
According to the laws of war and international humanitarian law, attacks must be limited and only target military objectives (article 48 of the first additional protocol of 1977).
As the NGO Human Rights Watch reminds us, international law imposes the duty on the parties to distinguish at all times between civilian and military parties. Nevertheless, these civil parties can lose their immunity by directly associating themselves with the hostilities and with the target (article 51 al. 3 of the first additional protocol of 1977).
However, these exceptions are closely monitored.
International humanitarian law also protects civilian objects (article 52 of the first additional protocol of 1977). These assets are, for example, houses, apartments, businesses and places of worship.
If the latter are used for military purposes, these goods lose their immunity. Hospitals are also affected by this provision. However, the evidence put forward must be strong to justify it.
Direct attacks against these targets are therefore prohibited. Attacks without discrimination, without targeting and indiscriminate strikes are also prohibited (article 51 al. 4 of the first additional protocol of 1977).
In this way, zone bombardments or the use of zones that cannot allow full targeting, for example with certain missiles with cluster munitions or with incandescent effects, can be prohibited. Disproportionate attacks are also prohibited.
Ukraine accuses Russia of perpetrating “war crimes” and calls for a UN investigation. Canada will make a similar request to the International Criminal Court, which will request the opening of an investigation for “war crimes” in order to analyze Russian actions on Ukrainian territory.
US Secretary of State Antony Blinken, for his part, said that “Russian crimes are increasing every hour in Ukraine” and called for the culprits to be held accountable.
Recent events offer us some examples of what could constitute a “war crime”, according to the parameters established previously.
- The massive bombardment of Kharkiv on February 28, in a civilian area, with the help of cluster bombs.
- During the past few days, many civilian homes have been hit by rockets and missiles, although these are in no way military targets.
If excuses attributed to missile guidance systems have been produced, international law requires that everything be done to prevent the occurrence and repetition of these acts.
However, these incidents have happened again.
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The effects of such a bombardment, beyond its designation as a military objective or not, could affect the issue of the protection of civilian populations (articles 54 and 55 of the first additional protocol of 1977).
Reference-www.tvanouvelles.ca