Ukraine Symposium – Litigating the Act of Aggression as Human Rights Claims

The UN Human Rights Monitoring Mission in Ukraine reports that since February 2022, there have been 40,176 verified civilian casualties caused by the conflict in Ukraine: 12,340 killed and 27,836 injured. The number of combatant casualties is much higher. President Zelenskyy stated that 43,000 Ukrainian soldiers have been killed in action during the same period, with 370,000 more wounded. If commentators take international humanitarian law (IHL) as the sole point of reference for discussing the victimhood of individuals harmed in this armed conflict, we may overlook the true extent of its human toll.

Combatants are lawful targets under IHL. Committing acts of violence against combatants amounts to a war crime only if the force is used once they are captured, injured, have laid down their arms, or if prohibited weapons (e.g. those causing superfluous injury or unnecessary suffering) or tactics (such as perfidious killings) are employed. Otherwise, in battlefield situations, it is not a violation of IHL or a war crime to target combatants. Similarly, it is not a violation of IHL to cause collateral civilian harm provided the expected injury or damage is not excessive in relation to the concrete and direct military advantage anticipated.

The situation under international human rights law (IHRL) might be different. The UN Human Rights Committee (HRC), which monitors implementation of the International Covenant on Civil and Political Rights (ICCPR) concludes that “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant [the right to life]” (para. 70). Significantly, although the HRC does not differentiate between combatants and civilians, recent inter-State and individual human rights complaints that have arisen from the conflict in Ukraine are now testing the proposition that all deprivation of life as a result of armed aggression is arbitrary, including aggression that leads to the death of combatants.

Application of IHRL in the Conduct of Hostilities

Views differ between States as to whether conflict parties continue to be bound by human rights obligations during situations of conflict. Some States, including the United States, take the view that IHRL has no extra-territorial application and therefore does not apply in armed conflicts occurring outside their territory. For those States that accept IHRL may apply, the most contested aspect of its scope of application relates to the active hostilities phase of armed conflict.

For instance, the European Court of Human Rights (ECtHR) initially ruled that Georgia’s complaint concerning the arbitrary deprivation of life during the hostilities phase of its conflict with Russia did not fall within Russia’s jurisdiction. This was because Russia could not have exercised either territorial or personal control in the “context of chaos” (Georgia v. Russia II, para. 137). This seemingly categorical finding is restrained in several important respects. Russia was found to have exercised jurisdiction over individuals deprived of their liberty even during the active hostilities phase of the conflict. In addition, Russia retained the duty to investigate alleged violations of the right to life of individuals killed during this period (Georgia v. Russia II, paras. 239, 269, 331-32). The finding was further qualified in a subsequent decision where the Court confirmed Russia’s jurisdiction over the downing of flight MH17 (Ukraine and the Netherlands v. Russia, para. 702).

The UN HRC, on the other hand, takes a more generous stance on IHRL’s application to armed conflicts. Article 6 of the ICCPR provides that every human being has the “inherent right to life.” In its General Comment 36 interpreting this right, the HRC adopts a functional approach and considers that “all persons over whose enjoyment of the right to life [a State party] exercises power or effective control” fall within the State’s jurisdiction. This includes individuals affected by military activities in “a direct and reasonably foreseeable manner” even if they are located in territory over which the State does not exercise effective control (para. 63). On this view, therefore, even during an extra-territorial armed conflict, a State party to the ICCPR must respect the right to life.

Russia is a State party to the ICCPR. This raises the question whether the lawfulness of its armed forces’ actions is confined to questions of IHL compliance or whether a systematic assessment of the legality of the use of force under international law requires something more. In other words, if the Russian armed forces’ killings during the armed conflict are not unlawful under IHL, either because the victims were combatants or because the collateral civilian loss was not disproportionate, can the use of lethal force nevertheless constitute a breach of Russia’s human rights obligations?

The Paradigm Shift in Human Rights Litigation

When considering armed conflict-related cases in the past, human rights bodies have been inclined to justify the invocation of IHL in their human rights analysis through systemic integration. However, the possibility of applying the jus ad bellum has been much less explored. The ECtHR is currently deliberating and expected to deliver its judgment on the merits in the case of Ukraine and the Netherlands v. Russia. During the oral hearing that took place on June 12, 2024, Ukraine frequently referenced the act of aggression by Russia in its submissions, stating that the war of aggression was contrary to the essence of the European Convention on Human Rights (ECHR). Among the intervening States, Poland also emphasized peace as an integral element of human rights protection.

During the hearing, Judge Huseinov asked why Ukraine invoked the alleged violation of the right to life only in respect of civilian victims of bombing and shelling while relying on the jus ad bellum. In reply, Ukraine endorsed the HRC proposition but admitted the focus of its claim was the affected civilians. It seems that Ukraine took this approach to preempt jurisdictional objections that might have arisen based on the Court’s previous case-law concerning military confrontations. However, even if the complaint is confined to civilians, application of the UN Charter could still add a valuable dimension to this case, notably with respect to civilians that were “collateral victims” of otherwise lawful attacks under IHL.

More recently, on July 10, 2024, several non-governmental organizations (NGO) filed a complaint before the HRC on behalf of eighteen victims of a Russian missile strike that took place in the city of Vinnytsia on July 14, 2022. This strike reportedly killed 29 individuals and injured more than 200 people; among the dead were three Ukrainian Air Force officers. The NGOs argued that the Vinnytsia attack violated the right to life of both the civilians and military personnel. They are thus asking the HRC to apply in practice its reasoning in General Comment 36. Insightful comments on some of the legal, political, and institutional aspects related to the NGO complaint are here. In contrast, this post assesses the legal foundations behind the HRC’s interpretation of the right to life.

Act of Aggression in Light of the Criterion of Lawfulness under IHRL

Lawfulness is one of the criteria that human rights bodies examine when considering the permissibility of restrictions on human rights. Article 6 of the ICCPR requires States party to protect the right to life by law. Further, “[N]o one shall be arbitrarily deprived of his life.” The key term in this context is arbitrary. Both the HRC and the African Commission on Human and Peoples’ Rights consider that the deprivation of life is arbitrary if it contravenes international law. Similarly, under Article 15(2) ECHR, there can be “[n]o derogation from Article 2 [the right to life], except in respect of deaths resulting from lawful acts of war.” In addition, under both Article 4(1) of the ICCPR and Article 15(1) of the ECHR, measures derogating from the obligations under the respective treaties should not be inconsistent with other obligations under international law.

The ICCPR Commentary notes that these obligations include the UN Charter principle that “war is recognized only in case of self-defense or other reasons consonant with the Charter.” The Schabas Commentary to the ECHR reminds us that the term “act of war” was historically synonymous with an armed attack initiating a state of war in the context of the jus ad bellum (p. 601). Similarly, Judge Keller in her concurring opinion in Georgia v. Russia II (para. 27) argued that the Court should construe the term “other obligations under international law” broadly, encompassing the UN Charter. Accordingly, if IHRL requires an assessment of the lawfulness of the use of force under international law, this may entail evaluating compliance with the UN Charter or jus ad bellum principles.

The prohibition of the use of force in international relations is a key principle of the UN Charter (Franck, p. 2). This prohibits the use of force in all cases except self-defense and UN Security Council authorization. The Charter transformed international law into the “law of peace, peace being the antithesis of force, violence, and armed conflicts” (O’Connell, p. 272). The continued application of the jus ad bellum principles of necessity and proportionality alongside IHL during the entire duration of armed conflict is critical, as IHL only contains rules on how hostilities are conducted (Watkin, p. 55-90; Greenwood, p. 279). IHL does not address the entitlement of States to conduct such hostilities in the first place. This suggests the parties to an armed conflict must comply with both branches of law for the use of force to be lawful under international law. To put the proposition another way, if a person qualifies as a legitimate military target under IHL, attacking them is not a war crime but the use of violence might still violate the UN Charter unless the use of force falls within the parameters of lawful self-defense, or it is conducted with the authorization of the UN Security Council.

Resisting Automatic Assimilation of IHL and IHRL

When articulating the relationship between IHL and IHRL, it is sometimes argued that tribunals should resolve normative conflicts between the two branches of law by relying on IHL as the lex specialis. Putting aside the controversial question of whether tribunals can use lex specialis to resolve conflicts of norms, it is first necessary to ascertain whether such a normative conflict exists. Haque argues that in the conduct of hostilities, IHL does not authorize what it does not explicitly prohibit (p. 48). IHL is instead a primarily prohibitive regime that aims to protect individuals from certain grave violations (ICRC, Commentary, para. 2238); it does not legitimize actions that are unlawful under the jus ad bellum (Dannenbaum, p. 218). This suggests that any inconsistency is not so much a matter of normative conflict but rather normative coexistence: a particular action may not be a war crime, but it may still be prohibited by IHRL because it is unlawful under the jus ad bellum.

Some scholars, in my view correctly, suggest that given the different premises of IHL and IHRL, it is advisable to not equate IHL compliance with IHRL compliance, for instance, by adopting a simplified “if-then” approach. The underlying premise of this approach is that only “if” an attacking force violates IHL “then” the resulting killing is arbitrary. Applying this interpretation, many losses of life within the Russian-Ukraine conflict would not be considered human rights violations. As the note issued by the three NGOs that filed the Vinnytsia complaint explains, “under IHL, civilian victims would in many cases be referred to as ‘collateral damage’ and no right of action or remedy would be available to them for the harm they suffered.” Similarly, other commentators suggest that it would be “anathema to human rights principles” if we were to accept that an aggressor State can lawfully take away the life of combatants and civilians considered part of the collateral damage, and render the killings justified simply by declaring an aggressive war (Bennoune, p. 188; Megret, p. 36). In this context, the International Court of Justice has already stated that compliance with IHL is not in and of itself dispositive of genocide claims.

There has also been a debate in philosophy about the ethical aspects of wartime killing. Moral philosophers traditionally viewed war as exceptional, placing opposing combatants on the just and the unjust side in a symmetrical moral position. Under this view, by accepting to fight, soldiers forfeited their rights (Galliott & Galliott, p. 19). Thus, moral theorists conventionally held that all, both just and unjust, combatants lost their right not to be attacked because they equally posed lethal threats to each other. However, more recent just war theorists argue that combatants only lose their moral right not to be killed when they pose unjust threats (Haque, p. 22). This developed perspective rejects moral equivalence between the aggressor and the defender, just as there can be no moral equivalence between an armed robber and a person trying to defend their property. IHRL aligns closely with the more recent thinking of moral philosophers: the right to life is inalienable and a State may not invoke a situation of war to justify its arbitrary deprivation.

Rebuilding the Bridge Between IHRL and Jus ad Bellum

Historically, the prohibition of force and the international recognition of individual human rights share an intricate connection. On the one hand, instruments aimed at outlawing war have often highlighted the connection between peace and the human cause. For example, one analyst observes that the Kellogg-Briand Pact explicitly sought to promote the well-being of mankind (p. 97). The UN Charter subsequently linked the maintenance of international peace and security with the promotion and protection of human rights and fundamental freedoms. Now recognized as one of the four international crimes under the Rome Statute is the crime of aggression, which was described by the International Military Tribunal in Nuremberg as “the accumulated evil of the whole” and a “supreme international crime.” At its core lies the infliction of human suffering and the unjustified killing of both combatants and civilians (Dannenbaum, p. 77).

On the other hand, pacifist aspirations have deeply influenced the development of human rights instruments. For example, an early draft of the Universal Declaration of Human Rights (UDHR) explicitly connects the abolition of war with the preservation of human dignity: “there can be no peace unless human rights and freedoms are respected … there can be no human dignity unless war and the threat of war are abolished.” This link remains evident in the final version of the UDHR, which proclaims freedom from fear as one of humanity’s highest aspirations and emphasizes in its preamble the recognition of inalienable rights as the foundation of peace in the world.

Concluding Remarks

There are compelling normative reasons for the HRC to uphold its interpretation of the right to life as articulated in General Comment 36. This approach recognizes a broader category of victims of Russian aggression, who become visible only if we acknowledge that the unlawfulness of an act of aggression affects the legality of the use of force on a granular level. If human rights bodies were to endorse the “if-then” approach, thereby holding that if a State party to an armed conflict complies with IHL then the deprivation of human rights by its agents is never arbitrary, this would effectively deprive the human rights regime of its autonomy.

By contrast, the HRC’s current approach treats IHL and IHRL as complementary, ensuring that they operate harmoniously rather than in conflict. Importantly, the acts recognized as human rights violations under this approach are already unlawful under the jus ad bellum. Such a systemic interpretation of human rights law better aligns with the UN Charter and the fundamental concept of human rights as inalienable. Therefore, human rights bodies should seize this opportunity to provide much-needed clarity and a more precise articulation of the relationship between the UN Charter and their respective instruments.

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Revaz Tkemaladze is a Ph.D. Candidate at the Law Faculty of the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

Photo credit: Kyivcity.gov.ua