Amnesty International and Ukraine: the difficulty of invoking humanitarian law in times of war

On August 4, 2022, in the context of the Russian-Ukrainian armed conflict, Amnesty International published a press release referring to “Ukrainian combat tactics endangering the civilian population”. The reproach made to the Ukrainian army is to place military objectives, which the Russian armed forces are authorized to target under certain conditions, in the middle of the Ukrainian civilian population (housing area, schools and hospitals) and so on endanger this civilian population.

Immediately, this press release and the NGO issuing it, which one can hardly suspect of complacency towards the Russian authorities in general et in the current conflict, found themselves at the heart of a lively controversy with both political and legal ramifications.

Politically, the NGO is accused by the resigning head of Amnesty in Ukraine of serve the "Russian propaganda" and by President Zelensky of “attempt to grant amnesty to a terrorist state”.

Legally, analyzes have multiplied to support, more or less explicitly, that international humanitarian law should be interpreted differently depending on whether it applies to an aggressor state or to an aggressed state. As recently as September 21, 2022, in the program "C ce soir" dedicated to the conflict, a speaker who designated Russia and Ukraine as the “belligerents” was criticized for this expression taken from international humanitarian law (IHL) and asked to designate these States as the aggressor and the attacked. The observation seems clear: Russia and Ukraine are not on an equal footing, including when it comes to IHL.

What does the law ?

However, this "common sense" observation is erroneous in international law which, as several specialists have since pointed out, such as Marco Sassoli ou Julia Grignon, differentiates from them strictly independent bodies of rules : the jus ad bellum (or right to use force), which effectively distinguishes the aggressor State from the State attacked, and the juice in bello (or international law of armed conflict, or IHL), which applies to all “parties to the armed conflict” or “belligerents” regardless of whether they are attacked or aggressor or the cause that these parties are defending.

The first body of rules, the jus ad bellum, makes it possible to affirm which State uses force lawfully, that is to say in accordance with the Charter of the United Nations, and which violates international law and endangers international peace and security. In this case, it is widely accepted that Russia has attacked Ukraine, which uses force in self-defense to preserve its territorial integrity.

The second body of rules, the juice in bello, makes it possible to determine whether the parties to the armed conflict respect the minimum rules of humanity in the conduct of their hostilities. In this respect, both States involved in a conflict may violate the law, and the seriousness or extent of the violations committed by one of the parties does not exempt or excuse the violations committed by the other. It is no longer a question of knowing why States use armed force and whether they have the right to do so, but how they use it and whether the way of “waging war” is in conformity with the law. Russians and Ukrainians therefore have the same rights and obligations as "belligerents" or "parties to the armed conflict" - this is referred to as the "principle of equality of belligerents" (for non-international armed conflicts, this principle however, is debated).

Interested readers may find it useful to refer to the aforementioned references for a more in-depth legal analysis of the press release and of the IHL rules that Amnesty criticizes the Ukrainians for not respecting. Will he be convinced that it is essential to strictly impose the same rules on Russian and Ukrainian fighters? That it is imperative not to show more leniency towards Ukrainian forces defending their territory than towards Russian forces attacking foreign territory and people?

Nothing is less certain in this context of polarization of public opinion and, whatever the law says, everyone remains free to defend the idea that a difference should be made between the aggressor state and the attacked state. This is why it is not enough to affirm professorially the existence of this principle of equality of the belligerents. We must explain it and try to convince everyone, whatever their convictions, that it is in no one's interest to have it questioned.

The principle of equality of belligerents, the fruit of several centuries of experience in limiting the evils of war

Contrary to the other principles of IHL, traces of which can be found from antiquity, the principle of equality of belligerents is relatively new, since it was imposed only after the Second World War and was not explicitly included in a agreement, namely in the last paragraph of preamble to the first additional protocol to the Geneva Conventions, only in 1977.

For a long time, international humanitarian law was dominated by what are referred to as “just war theories”. Without going into detail, these successive theories consisted in setting aside or modulating the rules applicable in the conduct of hostilities according to the legitimacy of the cause defended, the respect by the other belligerent of its obligations or the legality of the use of strength. The idea is simple: why should a combatant who defends a just cause or lawfully take up arms be subject to the same obligations as a combatant who fights illicitly or whose cause is unjust? Why should the first continue to respect the rules if the second does not respect them?

These legitimate questions have however been confronted with the centuries-old experience of wars and it is clear that the implementation of these theories systematically results in none of the parties to the conflict respecting IHL, that is to say to unbridled violence where all means and methods of warfare are used to defeat the enemy. Several elements, taken from this experience and already identified in 1624 by Hugo Grotius in his De Jure Belli ac Pacis, explain this phenomenon and can be summarized in a series of questions.

What criterion should be used to designate the “virtuous” part? Is the legality always as obvious as we would like? Does the legality of the use of force prevail over the legality in the conduct of hostilities? Is legality always more important than morality?

These questions are more complex than they appear and were, for example, at the heart of the debates between the States during the adoption, in 1977, of the additional protocols to the Geneva Conventions. On the one hand, most Western states maintained that the “wars of decolonization” were internal conflicts, without legal protection for the colonized combatants. On the other hand, the newly decolonized States, the Third World States and the national liberation movements argued for the legitimacy of their struggles and the right of peoples to self-determination in order to have this status of combatant recognized (which prevents, in particular, from penalizing the member of a party to the conflict who takes up arms while respecting IHL) and obtaining adjustments to the law in the light of the characteristics of their fights (in particular guerrilla methods).

In 2014 and 2022, Russian and separatist discourses have amply served of the rhetoric of the right of peoples to self-determination, of Western aggression and of the legitimacy of the anti-colonial struggle. Some will argue, rightly in our opinion but certainly not for others, that this is propaganda or legally untenable arguments.

Which leads to the second question: assuming that we can identify a consensual criterion between the parties, which can decide between the competing claims of two belligerents, a fortiori when it comes to two sovereign states that have no superior authority?

Admittedly, the States consented to and granted a certain number of these powers to the organs of the United Nations with the adoption in 1945 of the Charter of the United Nations. However, the legitimacy and impartiality of these bodies are regularly debated and their activity can be paralyzed when it comes to one of the five permanent States of the Security Council, or their allies, who have a right of veto.

The blockage in the Security Council preventing to qualify Russia's aggression against Ukraine, as well as the inefficiency of the resolution condemning the aggression adopted by the United Nations General Assembly highlight the crucial element: it is not enough to state the law, there must be an entity, non-existent to date and probably undesirable, which is capable of compelling, if necessary by armed force, the parties to the conflict to accept his decisions.

Indeed, even if the designation of the "just" State and the "unjust" State would be irrefutable, is it plausible that the latter admits its wrongs and renounces the war or that it accepts to respect obligations? more binding than its enemy? To our knowledge, this has never happened. On the other hand, what happens when the parties to the conflict contest their legal equality is a denial or a minimization of the legal protections granted to persons and property protected by IHL (civilian persons and property, detainees and prisoners of war or even the environment).

The questioning of the principle of equality of belligerents: an abandonment of the elementary principles of humanity in armed conflicts

Without claiming to be exhaustive, several classic precedents can be cited to show that the interference of moral considerations or the legality of the use of force leads to the denial of the most elementary principles of humanity.

Reference has been made to "freedom fighters" who have employed practices that endanger civilians, often referred to as methods of guerrilla warfare (hiding among the civilian population) or terrorism (targeting civilians). civilian populations) by justifying them by the superior cause they defend. This rhetoric is actually quite commonplace in most so-called asymmetric wars, pitting one major military power against another that is obviously weaker and less experienced, guaranteed to lose in open confrontation.

There is no systematicity in the legitimacy of those who invoke it: they may alternatively be state or parastatal armed forces (certain acts committed against the occupation forces in Afghanistan after 2001 or in the Israeli-Palestinian conflict ), national liberation movements (the acts of the Algerian FLN) or even jihadist groups (for example in Mali since 2013).

The rhetoric of lawful or just cause is also used by prominent military powers. The most obvious example is that of the Guantanamo camp created by the United States to detain "illegal combatants", i.e., according to the American authorities, individuals who no longer benefited from any (neither those of IHL, nor those of human rights). At Guantanamo, as in many other situations, the invocation of legitimate war against an "illegal", "barbaric" or "unjust" enemy is used to justify torture, the targeting of civilian populations suspected of supporting the enemy, and various other illicit methods and means of warfare such as the use of prohibited weapons.

The questions that matter

Finally, in the Russian-Ukrainian conflict as in any conflict, it is misleading to ask whether the Ukrainian and Russian armed forces should be bound by the same legal obligations of IHL. To date, all attempts to differentiate the parties to an armed conflict before IHL have resulted in the same observation of the negation, by both parties, of the elementary principles of humanity. Experience has shown that the only questions that matter ultimately are the following: should everything be permitted in war and does the end justify the means? At the end of the Second World War, our predecessors answered these questions in the negative. They affirmed that when war breaks out, all parties to the armed conflict must respect certain obligations which, without preventing them from fighting, preserve minima the humanity of all, combatants and civilians, on one side and the other.

Armed conflicts constantly put this legal and humanist heritage to the test, particularly in the face of an enemy “without faith or law”. Its preservation must therefore remain an absolute priority whatever the circumstances. The Russian-Ukrainian conflict will end but others will come, always with the same claims of justice and the same needs for minimum rules of humanity.

Elsa Marie, Doctoral student in international law, Nanterre International Law Center (CEDIN), Paris Nanterre University - Paris Lumières University

This article is republished from The Conversation under Creative Commons license. Read theoriginal article.