On August 4th 2022, Amnesty International published a report
criticising the tactics of the Ukrainian Armed Forces (UAF) for
endangering civilians by launching attacks and placing military targets
in populated areas. The report led to considerable flak from military officials,
who called the expectations of the organisation unrealistic, Amnesty’s
Ukraine office, who criticised their lack of involvement and whose head quit in the wake of the report, and scholars, who used it to re-examine just war theory and the inequality of belligerents in a war of aggression. This even led the organisation to apologise for the “distress” caused by the report.
The reaction to the report indicates that the basis for the
conclusions in the report are not well-founded in existing International
Humanitarian Law (IHL). Michael N. Schmitt excellently examined
the report from a legal perspective, coming to the conclusion that the
report failed to both provide evidence of violations or even identify
the laws supposedly being violated. However, the report exemplifies an
interesting debate in humanitarian protection which is becoming ever
more relevant – namely the debate on the threat to civilians in
populated areas from explosive weapons. Given the numerous responses on
twitter and the legal blog-o-sphere, this post will only briefly examine
the accusations in the report. Rather, it will situate the report
within the context of the larger debate around the protection of
civilians in populated areas and examine the danger of dissonance
between calls to expand the limits to warfare and a shrinking of belief
in such limits by those on the battlefield.
The Report and the Response
Amnesty’s report is quite brief. It highlights three major issues
that, it argues, point to patterns of behaviour on the part of the UAF
that put civilians in harm’s way – namely the launching of attacks from
populated areas and the use of hospitals and schools for military
purposes. Each of these apparent patterns of behaviour have different
statuses in international law.
Potentially the best case for a violation made in the report relates to hospitals in customary law. There is a prohibition of launching attacks against hospitals – putting the onus of protection on the attacker. Customary international law does, however, also establish neutralised zones around hospitals, which would make using such buildings for military purposes inexcusable. Furthermore, exploiting protected symbols
is also forbidden if the hospital were still marked, though whether or
not such markings were on the facilities in question was unclear from
the report. Schmitt’s blog post highlights that articles 12 and 13
of Additional Protocol I (AP I) were meant to protect from placing
hospitals near military targets and that hospitals lost their protection
when used in harmful acts against the enemy like as a firing position
or sheltering weapons or soldiers, though only after fair warning. All
in all, while the report refers to incidences where hospitals were used
by the UAF, it does not provide enough information, and does not discuss
the obligations of the Russian Armed Forces (RAF).
The use of schools is less problematic, as the report itself concedes
that schools are no longer in session, making them no longer protected.
As mentioned in the report, even the Safe Schools Directive
permits the use of unused schools given “no viable alternative”. Since
the beginning of the war, schools have been used for military housing on
both sides, as some of the only structures capable of housing large
numbers of soldiers. As with hospitals, the report fails to give enough
detail to determine the exact circumstances of use.
The positioning of soldiers in and launching attacks from populated
areas presents a greater challenge, particularly given the vagueness of
the report. Prof. Schmitt’s blog post
calls into question the precise violation highlighted by Amnesty. He
underscores that the protections against the use of human shields
include the intent to use civilians as a shield against armed attacks,
which Amnesty does not suggest. Marc Garlasco
points out that IHL was not intended to protect against the military
actions in populated areas when urban areas are the battlefield. While
both sides are equally bound to IHL, the challenges of contesting urban
areas are not equal. The RAF can choose their targets, forcing the
Ukrainians to either contest or surrender their territory. While urban
warfare presents a clear danger to civilians in contested cities, it is
unrealistic to expect the UAF to limit their defence of important cities
out of the potential impacts of enemy attacks or put themselves at a
tactical disadvantage by attacking an enemy with air superiority over
open ground out of similar considerations. As Garlasco argues,
suggesting otherwise potentially gives Russia justification for the
greater use of indiscriminate weapons when fighting in urban settings.
The Recent Debate on Explosive Weapons in Populated Areas
The issues pointed out in the report are not necessarily founded upon
solid international law. They rather build upon an ongoing debate about
how to expand the law towards a potential prohibition on the use of
explosive weapons in urban areas. In Ukraine, this has been the chief cause of civilian casualties
since the escalation of the conflict in February. As cities have fallen
under siege, everything from ballistic missiles and airstrikes to
mortars and grenades present a unique danger for those who may not be
the target of attacks, but just be seeking shelter nearby.
Because there are no specific rules or practices recognizing the
terrible impact on civilians, and general principles such as
proportionality do not seem to be enough, organisations have begun to
see this issue as the new frontier of expanding limits to armed
conflict. The International Committee of the Red Cross (ICRC) has
published quite a bit on it in the past decade, including an expert meeting in 2015 and responded to political developments on the issue over the past 18 months. Likewise, the NGO network the “International Network on Explosive Weapons” (INEW) has worked on bringing attention to this issue since 2011. The efforts of the ICRC and INEW, amongst others, led to a draft political statement in June 2022, which provides a first step toward a clear prohibition that some argue for, while still remaining laced with language of feasibility and practicality.
It seems that the Amnesty report is trying to add to this current
discussion, albeit on weak legal footing. It highlights examples where
the presence of the UAF puts civilians at higher risk of attack by heavy
weapons. The coexistence of military targets and civilians is dangerous
and carries a high risk for the civilian population. Yet, from the
evidence provided in the report, it does not appear that the actions
were illegal. It seems rather that the report tried to stretch accepted
IHL to cover acts that, while tragic, fall too far into the realm of
military necessity, feasibility, and practicality.
In contrast, recent military developments on and off the battlefield
have arguably not only shown resistance toward such an expansion, but
also question more established aspects of IHL. In 2021, the then Judge
Adjutant General of the US Army co-authored an article
underscoring the need for increased legal flexibility in order to fight
a future theoretic peer-to-peer conflict. He added that legal scholars
and those who pushed for a prohibition of explosive weapons in populated
areas did not understand the realities of the battlefield and conflated
IHL with more constraining rules of engagement. His and other accounts include calling for the possibility of a more flexible use of explosive weapons in populated areas.
Why It Matters
Thus far, the report and the broader discussion on explosive weapons
in populated areas do not necessarily carry significant danger to it
beyond the war in Ukraine. If anything, the attempts to expand the
protection of civilians on the battlefield seem admirable. However,
while military leaders call certain norms into question, attempts to
expand the rules around protection bring distinct risks.
History is full of examples of, albeit less formalised, customs of warfare that were undermined by political and technological progress. In Ancient Greece,
the strong customs which limited warfare in inter-Hellenic warfare for
centuries were no longer seen as appropriate during the escalating cycle
of violence in the Peloponnesian War. Likewise, the customs around war
for pre-conquest Central Americans and Spanish
were both undermined by their interaction during the Spanish Conquest.
Additionally, there are examples of cases where attempts to limit
warfare were never viewed as appropriate on the battlefield – like
attempts to ban the crossbow in wars between Christians. In these cases,
customs may have survived certain violations, but when they were no
longer seen as appropriate by those implementing them, the entire regime
of norms was undermined.
As military thinking related to peer-to-peer conflicts and military practice
seem to potentially already struggle with more accepted ideas of IHL,
working to expand IHL to further constrain action may only serve to
undermine all of IHL. If defending a city instead of surrendering it to
the enemy already is equated with a violation of IHL due to its
endangering of civilian lives, then what is the average Ukrainian
soldier expected to think regarding the protection of prisoners or the
use of child soldiers? I would argue that currently, it is more
important to sure up acceptance of existing IHL, rather than reach
beyond what currently seems appropriate
Conclusion
The Amnesty International report has been and will likely continue to be criticised in the coming days and weeks. As already seen by the initial reactions,
the vagueness and one-sidedness of the report opens it up to easy
criticism. Yet, the issues of the report should be viewed within the
broader context, not just of the war in Ukraine and Ukrainian or Russian
violations of IHL. Rather, the report exemplifies an ongoing conflict
around the limits to armed conflict. As exemplified in the most recent
conflicts, even in cases where the law is clear, there remains an active
debate as to whether existing laws can hold up in the case of a
peer-to-peer conflict, let alone survive attempts to expand the
protections even further. While human rights and humanitarian
organisations’ attempts to enhance protection are admirable, perhaps the
focus of attention should be on solidifying the belief in the
legitimacy and appropriateness of existing IHL, rather than trying to
expand the laws and interpretation beyond what can reasonably be
expected from those fighting on the frontlines.
The “Bofaxe” series appears as part of a collaboration between the IFHV and Völkerrechtsblog.
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