Exploring International Humanitarian Law and its application during the Russian war in Ukraine

Center for Civil Liberties and Public International Law & Policy Group opening a series of public lectures dedicated to IHL/LOAC (International humanitarian law/Law of Armed Conflict) studies.

The idea to conduct IHL training sessions to Ukrainian civil society originated from CCL efforts in documenting war crimes committed by Russia and its proxies. In this regard PILPG expertise and experience in this field are of great help.

Since 2022 PILPG, a Nobel Peace Prize nominee, is working in Ukraine on documentation and transitional justice.

On Friday 21 October 2022 our first lecturer Dr. Gregory P. Noone speaks about: “Exploring International Humanitarian Law and its application during the Russian war in Ukraine”.

The lecture examine various aspect of IHL including

– a brief history of the Geneva Convention and Protocols 1, 2 – timeline;
– the difference between written and customary law;
– type of conflicts (IAC and NIAC);
– definitions of – lawful target and military necessity;
– the difference between military objects v civilian objects;
– distinction between lawful combatants and civilians, including explaining combatant privilege and POW status;
– forbidden methods and tools of war.

Dr. Gregory P. Noone put IHL norms into the present 24 Feb 2022 Russia aggression. Including, what concrete norms were violated when Russia started illegal aggression against Ukraine.

Event on Facebook and LinkedIn.

🎤 Speaker: Dr. Gregory P. Noone.

Dr. Gregory P. Noone, Ph.D., J.D., is an Executive Director at the Public International Law and Policy Group (PILPG). Dr. Noone works on PILPG’s Ukraine and Yemen projects related to peacebuilding, transitional justice, and human rights documentation. Dr. Noone has conducted PILPG justice system assessments in Uganda and Côte d’Ivoire as well as provided transitional justice assistance in post-Gaddafi Libya and to the Syrian opposition. Dr. Noone was also part of the international effort investigating the Myanmar government’s atrocities committed against the Rohingya population. He worked as an investigator in the refugee camps in Bangladesh and as one of the legal experts on the report’s findings.

He has published and presented articles on the Rwandan Genocide, the Law of Armed Conflict, the International Criminal Court, and Military Tribunals at numerous forums. Dr. Noone is the co-author (with Laurie R. Blank) of the widely used textbook: International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War Second Edition (Aspen / Wolters Kluwer Publishing 2019). Together they also published the Concise Edition of this textbook (Aspen / Wolters Kluwer Publishing 2016) for use in military academies, war colleges, undergraduate universities, and for foreign militaries. Dr. Noone is also the co-author (with Laurie R. Blank) of the Law of War Training: Resources for Military and Civilian Leaders derived from a multi-year project on military training programs in the law of war. 

Public International Law & Policy Group is a global pro bono law firm specializing in peace negotiations, post-conflict constitutions, and transitional justice. The PILPG operates as a non-profit, global pro bono law firm providing free legal assistance to its clients, which include governments, sub-state entities, and civil society groups worldwide.

PILPG provides pro bono legal counsel to clients on peace negotiation, drafting of post-conflict constitutions, creation and operation of transitional justice mechanisms, and ways to strengthen the rule of law and effective institutions.

Since 1995, they have worked with over 40 state and non-state parties and provided legal assistance to all major war crimes tribunals. The organization was founded in London in 1995, and is currently headquartered in Washington, DC.

With over 700 alumni, PILPG continues to train and empower the next generation of peace-builders and public international lawyers.

During the interactive part of a seminar we received up to 20 questions which were tackled by Dr. Gregory P. Noone. Ukrainian and international audiences were mostly interested in issues of: humanitarian corridors, command responsibility, occupation law, ICRC mandate and responsibilities, the use of UAVs (unmanned aerial vehicles) in particular, the so-called kamikaze drones and how POW labor is regulated.

Another group of questions concerned the consequences of non-compliance with IHL norms and legal remedies available to Ukraine under International Law.

Finally, he touched upon issues of establishing a Special Tribunal which would have a specific jurisdiction over the Crime of Aggression against Ukraine (Special Tribunal) and the ICC work.

Olga Vesnianka, Ukrainian human rights defender, Council of Europe expert added to the discussion: “The establishment of a Special Tribunal for the Crime of Aggression against Ukraine will not in any way impede further investigation of the situation in Ukraine by the International Criminal Court. The ICC is investigating the situation in Ukraine for alleged genocide, crimes against humanity and war crimes. The ICC remains a key body of international criminal justice, and Ukraine is actively cooperating with the ICC. For instance, the law amending Ukraine’s Code of Criminal Procedure establishing provisions for Ukraine’s cooperation with the ICC has recently been adopted. However, the ICC cannot investigate and prosecute individuals for the crime of aggression against Ukraine unless both states ratify the Rome Statute and the Kampala Amendments on the crime of aggression or the act of aggression is established in a UN Security Council resolution and the Security Council refers the situation to the ICC.”

Oleksandra Drik, CCL coordinator of international advocacy among others raised a question about simultaneous (complementary) applicability of international humanitarian law and human rights.

To follow up the discussion watch a stream recording.

Participants testimonials include: “I’ve graduated from the department of Public International Law, and it is my primary point of professional focus. In the context of a full-scale Russian invasion into Ukraine, IHL is back to the top of agenda. Attending such events means broadening my knowledge and further applying it to enforce IHL and to prosecute war criminals.”

“I wish to take this opportunity to learn more on international humanitarian law particularly in relation to the conflict with Russia and the Ukraine from an expert clearly having gone through many valuable and interesting experiences in relation to this area.”

“I want to increase knowledge on this particular area for application in public international law Jessup National Round moot competition”.

“It is a great chance to deepen the knowledge in the sphere of the IHL and exchange the views with other practitioners”.

The lecture was followed by a conversation with Dr. Gregory P. Noone and a questions and answer session moderated by CCL coordinator Mr. Roman Nekoliak.

Center for Civil Liberties receives a lot of questions about IHL. After carefully examining them, we prepared a Q&A briefing paper for you: International humanitarian law in a nutshell.

– Definition of armed conflict?
ICTY in Tadic case: “armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized groups or between such groups within a State. IHL applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, IHL continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.”

– Define NIAC and IAC.
There are two types of conflicts NIAC (non-international armed conflict) and IAC (international armed conflict). NIACs refer to situations where belligerency is purely a result of a domestic crisis. On the contrary, under international law, an IAC exists when states resort to armed force against each other. The treaty law provisions on international conflicts are more detailed than the ones on non-international conflicts.

– Define the crime of aggression.
The crime of aggression means “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

The act of aggression means “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”

These acts can include, among others, invasion, military occupation, and annexation by the use of force, blockade by the ports or coasts.

– Define the right to self-defense in the UN Charter?

Art. 51 UN Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council (…).

– Define military objects v civilian objects (Art. 52 API):

“military objectives are limited to 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”

“Civilian objects are all objects which are not military objectives”

In cases of doubt, it is a civilian object (Art. 52(3) API)

– Does the Geneva Convention apply to civilians?
Civilians in areas of armed conflict and occupied territories are protected by the 159 articles of the Fourth Geneva Convention. Civilians are to be protected from murder, torture or brutality, and from discrimination on the basis of race, nationality, religion or political opinion.

Civilians should be treated as “protected persons,” not prisoners of war (POWs), under the Geneva Conventions applicable to the armed conflict in Ukraine.

International humanitarian law (IHL) prohibits individual or mass forcible transfers of civilians from occupied territory to the territory of the occupying power, which can constitute a war crime. International humanitarian law also prohibits hostage-taking. Detaining civilians for the purpose of using them in future prisoner exchanges would constitute the war crime of hostage-taking.

– Regarding the ICRC’s visits, do they typically publish any papers to report on the situation at the place for every visit?
No – they provide a report to the detaining power only.

– Can Russia be held accountable for violating the Geneva Convention?
Despite Russia’s partial withdrawal from the Geneva Conventions does not absolve the aggressor country of responsibility for violating international humanitarian law and war crimes committed during the war in Ukraine. Russia can still be held accountable for violating the norms of the Geneva Conventions and Protocols.

– Elaborate more on applying common article 2 of the Geneva Conventions of 1977: if an armed conflict has actually started, and the states for certain reasons refrain from formally recognizing themselves as parties to the conflict (as happened in February 2014 during the seizure of Crimea)
According to IHL “armed conflict can arise without any occurrence of hostilities, namely through a declaration of war or the occupation of territory without armed resistance (Art. 2 GC I-IV).”

According to Rome Statute the offense can be committed, irrespective of a war being declared, where any of the following acts are committed [Art.8(3) bis Rome Statute].

At that moment when Russian soldiers went out from their barracks to engage in an unlawful operation, there had been an international armed conflict between Ukraine and Russia in the context of Crimea.

The annexation of Crimea is evidently a violation of international law. Meaning, Art. 2(4) UN Charter: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations, Charter of the United Nations”.

It is also important to mention that Russia’s conscription of men from Crimea for service in the Russian army, not only in Crimea but also in Russia’s mainland territories, is in violation of international law.  Art. Article 51 of the Fourth Geneva Convention the conscription prohibits the occupying State from forcing protected persons to serve in its armed or auxiliary forces:

“The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.”, article 51, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

With the start of hostilities declared or not declared the international humanitarian law comes into force immediately; this means that it provides a framework for the behavior of belligerent parties and the protection of non-combatants and the respect of the environment and the property of civilians.

During international armed conflicts, the four Geneva Conventions of 1949 apply, as does Protocol I additional to the Geneva Conventions (Additional Protocol I of 8 June 1977).

– What about Crimean Tatar conscription?
When speaking about mobilization in Russia, it is important to recognize the great tragedy that is once again happening to the Crimean Tatar people. Russia is deliberately targeting them for mobilization purposes. There is information about special efforts to spread mobilization calls/letter among this ethnic group in Crimea. This is another violation of IHL (the population of the occupied territory cannot be recruited).

The Crimean Tatars also face an impossible choice. As the only anti-Russian occupation group, they have been subject to repression since 2014, including forced disappearances. Now they are forced to go and die on the front line, or kill Ukrainians, whom the Crimean Tatars consider allies. If the Crimean Tatar warriors succeed in deserting, they will lose access to their historic homeland.

Such acts have genocidal connotations.

– Can an armed conflict arise without a declaration of war?
A state of armed conflict can be said to exist when two opposing States resort to armed force even when no formal declaration of war has been made.

An international armed conflict may be said to occur when one or more States have recourse to armed force against another State, regardless of the reasons for or the intensity of this confrontation.

No formal declaration of war or recognition of the situation is required. For example, there may be an international-armed conflict even though one of the belligerents does not recognize the government of the adverse party or even according to IHL “armed conflict can arise without any occurrence of hostilities, namely through a declaration of war or the occupation of territory without armed resistance (Art. 2 GC I-IV).

– Enforcement of IHL in Russian-Ukrainian law and the role of the Red Cross.

Both Ukraine and Russia are parties to the four 1949 Geneva Conventions and the 1977 Additional Protocol I, II. Furthermore, customary international humanitarian law applicable to IAC in the majority of provisions binds NIAC too. In addition, international human rights law continues to apply during times of both types of armed conflict.

– Is war illegal under international law?
The use of force is prohibited under the Charter of the United Nations. Nevertheless, international humanitarian law has to be applied equally by all sides to every armed conflict, regardless of whether their cause is justified.

According to Art. 2(4) of the UN Charter: “All members shall refrain in their international relations form the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations, Charter of the United Nations”.

– Is the international organization of the Red Cross responsible for refusing to help check the health status of prisoners?
Practically they can’t be held liable because they can act only if allowed by warring parties. Theoretically belligerent parties should respect IHL and help to enforce it.

What are the consequences of non-compliance with IHL norms?
– States can enforce the rules through their national legal systems, diplomatic channels or international dispute resolution mechanisms. War crimes can be investigated and prosecuted by any State or, in certain circumstances, by an international court. The United Nations can also take measures to enforce IHL.

– How does the UN security system work?
The UN collective security framework establishes not only normative but also political and military prerequisites for the UN in current conditions to be able to prevent threats, acts of aggression and other acts of breach of peace.

The United Nations hopes to dissuade any member state from acting in a manner likely to threaten peace and thus avoid a conflict.

The Security Council has primary responsibility, under the United Nations Charter, for the maintenance of international peace and security.  The Council can apply various measures to maintain or restore international peace and security, ranging from economic sanctions to international military action (for example, NATO operations in Libya).

The UN Charter mandates the UN and its member states to maintain international peace and security, uphold international law, achieve “higher standards of living” for their citizens, address “economic, social, health, and related problems”, and promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.

As a charter and constituent treaty, its rules and obligations are binding on all members and supersede those of other treaties.

– How does international law treat the 2022 “referendums” in the South of Ukraine?

Occupiers in South and Eastern Ukraine, once again (as in 2014) conducted an illegal “referendum” on joining the Russian Federation. The referendum will create a dubious sense of legality to these facts on the ground, and create a pretext for bringing Kherson and other occupied parts of southern Ukraine into Russia, using the 2014 Crimea handbook.

Referendums were organized in the four regions – Donetsk, Luhansk oblasts (occupied from 2014) and occupied territories of Zaporizhzhia and Kherson oblasts which are under direct Russian military control. The question to a vote is whether the region wish to join the Russian Federation and become part of Russian state. Previously the Donetsk and Luhansk oblasts held referendums and declared themselves independent from Ukraine. Only Russia, North Korea and Syria, UN outcasts have recognized their claim of independence.

Immediately after the referendums, Russia ratified the incorporation of those territories into the Russian Federation. Russia would then declare that any attempt by Ukraine to regain those territories would be regarded as an attack on Russian soil and trigger use of more severe wapens.

Council of Europe Secretary General rejects so-called ‘referendum’ in occupied Ukrainian territories. The Secretary General of the 46-nation Council of Europe, Marija Pejčinović Burić, has today made the following statement:

• “The announced so-called ‘referendum’ in Ukrainian territories that are occupied by Russian forces is a further escalation of the conflict and the ongoing violation of Ukraine’s territorial integrity.

• “Such ‘referendum’, held at gunpoint by occupying forces and in disrespect of basic democratic principles, can neither be accepted nor recognized.

• “We reject this mockery of democracy and reaffirm our commitment to the independence, sovereignty and territorial integrity of our member state Ukraine within its internationally-recognized borders.

• “I call once again for an end to the conflict and for a return to peace in Europe.”

The OSCE Chairman-in-Office, Polish Minister of Foreign Affairs Zbigniew Rau condemned the plans to hold “referendum” on Ukraine’s occupied territories.

“As the war following the Russian Federation’s invasion of Ukraine continues, any so-called “referendum” planned by or with the support of the forces illegally exercising de facto control in the occupied territories of Ukraine would be in contravention of international standards and obligations under international humanitarian law, and their outcome will therefore have no legal force”.

– What attack is considered indiscriminate?

Art. 51(4)API: “Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;”

Art. 51(5)b AP I: “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (considered indiscriminate)

– What precautions in attack should be taken?

(Article 57 AP I): “constant care shall be taken to spare the civilian population, civilians and civilian objects”; in planning and decision-making;

– “do everything feasible to verify that the objectives are…military objectives”;

– “all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing” collateral damage;

– “refrain from any attack which may be expected to cause [collateral damage], which would be excessive in relation to the concrete and direct military advantage anticipated”;

Art. 58 API: “The Parties to the conflict shall, to the maximum extent feasible:

(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;    

(b) avoid locating military objectives within or near densely populated areas;    

(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control     against the dangers resulting from military operations.”

To learn more please visit:

PILPG

Academic papers and field manuals:
– IHL handbooks and manuals on ICRC official page
– Jean-Henri Dunant A Memory of Solferino. A book mentioned by Dr. Gregory P. Noone at his opening statement. On Dunant initiative, the first groups of volunteers were created to help the wounded in combat.

The source of law:
Rome Statute of the International Criminal Court (ICC official page, pdf)
Customary International Humanitarian Law (ICRC, pdf)
Geneva Conventions (ICRC official page, pdf)
Additional Protocol I (ICRC official page, pdf)

Prepared: Roman Nekoliak, CCL