Violations of International Humanitarian Law Should Lead Toward International Criminal Responsibility
Ever since the commencement of its full-scale invasion of Ukraine in February 2022, many analysts have identified ongoing or specific acts by Russia or Russian-sponsored actors such as the Wagner group that violate international humanitarian law (“IHL”) and amount to war crimes. Because IHL consists of a binding set of fundamental legal norms, the international community should expect compliance by all participants, including state and non-state actors, in an armed conflict with IHL. Moreover, those who commit IHL violations should bear individual criminal responsibility and face prosecutions at international, regional, and national tribunals.
Russia’s “Liberation Narrative” is Legally Flawed
The Russian use of force against Ukraine is a blatant violation of international law. Russia has framed its actions as being part of a noble pursuit of “liberating” territories located in Ukraine. However, the illegal presence of Russian forces on Ukrainian territory constitutes an “occupation” under the Fourth Geneva Convention of 1949.
Russia claims that its presence in Ukrainian territory is not an illegal occupation of another State, but rather a legitimate annexation. This is not the case as the 2014 occupation of Crimea and the 2022 occupation of additional Ukrainian territories have been condemned by the international community as illegal and illegitimate. Russia’s arguments in support of its occupations of Ukrainian territory hinge on multiple referendums, the results of which purport to provide a legal basis for annexation. However, the voting process underlying the referendums in both 2014 and 2022, overseen by the Russian military, is widely viewed by the international community as coercive and thus not representative of a free and fair election of the people. Still, Russia persists with this narrative in which the ends (purported liberation) may justify the means (the instances of violations of IHL).
However, even if Russia’s narrative were true (which is not the case), the ends do not blanketly justify the means. Hence the international community should still seek to hold Russia and its leaders accountable for breaches of IHL.
The Applicability of IHL to Non-State Actors in Armed Conflict
Compliance of IHL raises another intriguing question: which entities or individuals are bound by IHL? Numerous reports identify the Wagner Group, a private military group, as having committed some of the violations of IHL and war crimes. Confusion has arisen as to whether non-state actors such as the Wagner Group also must comply with IHL. The short answer is yes, although a variety of factors, including the nature of the conflict and the intensity of such conflict, will determine to what extent IHL may bind an armed group.
To begin, when it comes to internal (i.e. intra-state) armed conflicts, the intensity of such conflicts, and the different forms that such groups can present themselves as, are important factors. Compare the ongoing and continuous gang violence in El Salvador and the decade-long Syrian Civil War. The determination of whether the non-state actors in both cases, one being an organized gang, and the other being an armed militia in a civil war, are bound by IHL must be made on a case-by-case basis and supported by the realities on the ground. Ultimately, “a certain threshold of violence” has to be crossed for IHL to apply in such intra-state conflicts.
Admittedly, the lack of transparency when it comes to the Wagner Group’s organizational structure, operations, and ties to the Russian government has made ongoing investigations challenging. Furthermore, the recent and sudden death of the group’s leader, Yevgeny Prigozhin, have called into question the organization’s future role in the war in Ukraine and accountability of its leaders for past abuses.
Nevertheless, public reports indicate that the threshold has been met in the war in Ukraine for IHL to apply to the acts of the Wagner Group. As such, there is an ongoing international community effort to monitor the Wagner Group’s activities to identify violations of IHL and to hold the perpetrators accountable.
Legal Accountability
So why does the international community seek to hold those responsible for breaches of IHL, whether the offenders may be Russian armed forces operating under misconceptions of legitimate annexation or non-state actors, such as the Wagner Group?
History provides an explanation for why legal accountability for the worst crimes matters. In the aftermath of World War I, the international community created the League of Nations to “outlaw war” and to serve as a forum for resolving international disputes. It was around this time that long-standing concepts that had been developed over previous centuries were formally identified by terms that are still used today: jus ad bellum, referring to justification of resorting to armed force, and jus in bello, referring to justification of behavior within the context of armed conflict.
Thereafter, the horrors of World War II devastated not only state armed forces, but also civilian populations, making clear the need for enforcement of jus in bello. The United Nations was created in part to provide a forum to avoid such atrocities in the future, and the international community codified IHL in the Geneva Conventions of 1949, which have been ratified by every nation.
Ultimately, IHL aims to safeguard human dignity, carefully striking a balance between military necessity and protecting humanity. It encourages warring nations to practice distinction, proportionality, and precaution, and to refrain from means and methods of warfare that target, terrorize, or bring unnecessary harm and suffering to civilians. The Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005 codify these protections, delineate duties owed to civilians, and outlaw inhumane means and methods of war. Such codification and widespread acceptance of IHL, combined with the establishment of the International Criminal Court and customary law in and among signatory states, have provided IHL with national and international enforceability.
Additionally, legal accountability attaches to individuals such as political and military leaders who bear individual criminal responsibility. The application of international criminal law (“ICL”) to hold individuals accountable has gained increasing acceptance over the decades. From the Nuremberg trials after World War II, to the UN Chapter VII tribunals created in the mid-1990s, namely, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, to the hybrid tribunals created primarily through treaty agreements between the affected country and the United Nations, such as the Special Court for Sierra Leone, to the ratification of the Rome Statute giving rise to the International Criminal Court on July 1, 2002, it is now accepted as that individuals should be held legally accountable for their violations of IHL and the commission of war crimes.
The legitimacy of holding individuals accountable for these acts derives from the principle that no one—not even a head of state—is above the law. Maintaining legitimacy requires widespread application of IHL and ICL to everyone. Selective or sparing application of the laws will result in the loss of legitimacy.
It is for this reason that all participants in an armed conflict must comply with IHL. Failure to do so must result in all offenders being prosecuted. Thus, notwithstanding the war is still ongoing, Ukraine’s Prosecutor General has opened up over 80,000 war crime cases since the beginning of the war, and the Ukrainian government has already commenced prosecutions.
It is also why the International Criminal Court issued arrest warrants for President Putin and for the Russian commissioner for children’s rights, Maria Lvova-Belova for the war crimes of unlawful deportation and/or transfer of populations from occupied areas of Ukraine to the Russian Federation.
It is also why the Human Rights Council established the Independent International Commission of Inquiry on March 4, 2022, to investigate all alleged violations and abuses of human rights, violations of international law and related crimes in the context of the aggression against Ukraine by the Russian Federation.
Certainly, there will be legal, political, and other obstacles to the successful prosecution of individuals in these forums and others. Holding these actors accountable for their atrocities committed in the course of Russian aggression against Ukraine might be daunting. Some prosecutions may never get off the ground as offenders become fugitives who evade the reach of justice; others may fail for lack of evidence or even failure of due process owed to defendants.
But the task of at least seeking legal accountability must be executed. The prospect of being found guilty will serve as a deterrent to all, including those in the present conflict, and in all future conflicts, that no one can act with impunity. Hopefully, this will result in more protection of human life and dignity and less suffering during armed conflicts. The alternative would be unqualified horrors in a state of lawlessness.
Authors: Dr. Gregory Noone, Professor Milena Sterio, and Sindija Beta, PILPG, and Viren Mascarenhas and Pierre-Philippe Turnbull, Milbank
Photo: Mural of the painting “Guernica” by Picasso made in tiles and full size. Location: Guernica (Allendesalazar street, 11).
