Ukraine Symposium – Amnesty International’s Allegations of Ukrainian IHL Violations

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| Aug 8, 2022

Amnesty Post

On 4 August, Amnesty International released a report criticizing Ukraine for placing civilians at risk “by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals.” The organization asserted that “such tactics violate international humanitarian law and endanger civilians, as they turn civilian objects into military targets. The ensuing Russian strikes in populated areas have killed civilians and destroyed civilian infrastructure.”

The report made headlines (e.g., here and here) and sparked a firestorm of controversy on social media (see, e.g., reactions to this Amnesty International tweet). Unsurprisingly, the Ukrainian government’s reaction was quick and condemnatory. President Zelensky claimed the report seeks to “shift the responsibility from the aggressor to the victim,” while Foreign Minister Kuleba complained, “This behavior of Amnesty International is not about finding and reporting the truth to the world, it is about creating a false balance between the criminal and the victim.” And Presidential Adviser Podolyak’s emotive Twitter comment exemplified the reaction of many: “The only thing that poses a threat to Ukrainians is [the Russian] army of executioners and rapists coming to [Ukraine] to commit genocide. Our defenders protect their nation and families.”

In this post, I will briefly comment on the controversy. The piece will then turn to the law that applies to the allegations. Although Amnesty International did not delineate the international humanitarian law (IHL) rules Ukraine purportedly violated, the incidents it describes suggest three: the use of human shields, failure to take “passive precautions” to protect the civilian population against the effects of attacks, and misuse of protected places.

Unfair or Misguided Criticism

Much of the criticism directed at Amnesty International is unfair or misguided. Some critics claim the report displays bias. Yet, Amnesty International has frequently condemned Russian actions. Even the report in question did so (e.g., its indiscriminate attacks). To suggest Amnesty International is biased against Ukraine is simply unfair.

Other criticism focused on either the fact that Russia had initiated the conflict or that the conduct of Russian forces has been appalling. It is, of course, indisputable that no legal justification for Russia’s invasion exists and that Russian troops have engaged in widespread IHL violations (see Articles of War Ukraine Symposium).

But the criticism is misguided. The law governing the resort to force by States (jus ad bellum) and IHL are separate bodies of law. By the principle of equal application, IHL applies to all parties to an armed conflict, even if one side has violated the prohibition on using force (Russia) and the other is acting in self-defense (Ukraine).

The same principle holds that IHL violations by one side (Russia) do not justify those of its opponents (Ukraine). The sole basis for such a claim is the fading customary right of reprisal, which allows a party to violate IHL in narrow circumstances to compel an opponent to cease its own unlawful conduct. Moreover, Russia and Ukraine are Parties to the 1977 Additional Protocol I to the 1949 Geneva Conventions, which has restricted the right of reprisal to the vanishing point (Additional Protocol I, art. 20).

Furthermore, Article 51(8) of Additional Protocol I provides, “Any violation of [the protection of the civilian population rules] shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians.” The IHL rules implicated by the Amnesty International report, at least in part, are for the benefit of civilians. By Article 58, therefore, they bind Ukraine irrespective of Russian IHL violations.

Simply put, Ukraine is no less accountable for IHL violations than Russia is for its systematic unlawful behavior. It is accordingly appropriate for States, human rights organizations like Amnesty International, or other groups or individuals to condemn violations. Doing so strengthens IHL.

There are only two possible bases for criticism of Amnesty International’s allegations – the facts and the law. As to the facts, Ukraine’s government has labored mightily to protect its civilian population, as in President Zelensky’s call for evacuation of the Donbas and his government’s efforts in negotiating humanitarian corridors. Moreover, Ukrainian forces sometimes need to operate within population centers to defend effectively against Russian attacks.

But these realities do not mean that Ukrainian forces never engage in questionable activities. And Amnesty International is a mature human rights organization that, in my experience, is cautious about making factual assertions. I have no reason to doubt the incidents proffered in the report, although Amnesty International should release evidence supporting them as quickly as possible.

This leaves the law.

The Law

International humanitarian law reflects a delicate balancing of military considerations and humanitarian interests. It consists of prohibitions, limitations, and obligations that constrain what parties to a conflict may do. Even military necessity, except in limited cases set forth in IHL itself, cannot justify any Ukrainian deviation from the law. With respect to Amnesty International’s characterization of Ukraine’s conduct as unlawful, therefore, it is necessary to evaluate the claim against the relevant IHL rules.

Human Shields

Amnesty International did not specifically allege that Ukrainian forces have used the civilian population as human shields against Russian attack. Indeed, given the Russian practice of either directly attacking civilians or mounting indiscriminate attacks, trying to shield military operations and personnel through proximity to civilians seemingly would be a futile tactic for Ukraine.

Nevertheless, the fact that soldiers are operating near civilians always raises at least the possibility that they might be trying to shield themselves from attack, as the Russian forces have done repeatedly in this conflict. According to the Amnesty International report, the Ukrainian military has stationed personnel near homes, apartment buildings, agricultural warehouses, medical facilities, and schools and used the civilian areas for lodging, staging areas, and locations from which to mount attacks against Russian forces.

International humanitarian law contains various prohibitions on human shielding (e.g., PoWs, Geneva Convention III, art. 23; protected persons, Geneva Convention IV, art. 28). The key prohibition in this context, however, is found in Article 51(7) of Additional Protocol I.

The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

The ICRC’s Customary International Humanitarian Law study asserts, correctly in my opinion (see here and here), that human shielding also violates customary IHL (Rule 97). The United States has long accepted this characterization, and the DoD Law of War Manual includes the prohibition (§ 5.16).

Mere presence of civilians near military operations or personnel does not constitute unlawful shielding. Instead, there must be an intention to use their presence to benefit those forces. As the DoD Law of War Manual notes, “in the absence of purposeful action to put protected persons and objects at risk of harm from enemy military operations, there would be no violation” of the prohibition (§ 5.16.2). At least on the facts outlined in the report, no firm basis exists for suggesting Ukraine has violated the human shielding prohibition.

Of course, intent may be reasonably inferred from facts. Most troublesome in this regard is the reported presence of soldiers in hospitals. Amnesty International asserts that “In two towns, dozens of soldiers were resting, milling about, and eating meals in hospitals. In another town, soldiers were firing from near the hospital.” But even here, there is no indication of why the soldiers might have been there. More facts are needed to make a definitive assessment one way or the other.

Passive Precautions

The Amnesty International report’s assertion of IHL violations almost certainly refers primarily to the supposed failure of Ukraine to take “passive precautions.” Passive precautions are the other side of the “active precautions” coin. By the latter, attackers must take measures to minimize civilian harm (see, e.g., Additional Protocol I, art. 57; Customary International Humanitarian Law study, Rules 15-21; DoD Law of War Manual, § 5.14). Passive precautions, by contrast, obligate the defender to take measures to protect the civilian population. In treaty form, the obligation appears in Article 58 of Additional Protocol I.

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.

According to the ICRC’s Customary International Humanitarian Law study, the obligation to “take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attack” is customary (Rule 22), a characterization embraced by the Eritrea-Ethiopia Claims Commission (Partial Award, Western Front, Aerial Bombardment, at 330 and 344; for scholarly treatment, see Jensen, Sassòli and Quintin, and Quéguiner). The rule is also reflected in the DoD Law of War Manual (§ 5.14), a significant point in light of the fact that the United States is not a Party to Additional Protocol I.

[P]arties to a conflict should also take feasible precautions to reduce the risk of harm to protected persons and objects from the effects of enemy attacks. In particular, military commanders and other officials responsible for the safety of the civilian population must take reasonable steps to separate the civilian population from military objectives and to protect the civilian population from the effects of combat.

The incidents cited by Amnesty International at least raise the question of whether Ukraine is complying with the obligation, for they suggest that Ukraine intentionally operated near civilians and did not act to remove those in the vicinity of those operations. Yet, there is no absolute prohibition on being in the vicinity of civilians and civilian objects or any absolute duty to remove them. To suggest otherwise would be operationally insensible. It would effectively make defending the areas concerned impossible, either because military forces sometimes need to be in the area to operate or because removing nearby civilians sometimes would be impractical or even practically impossible.

Delegates at the Diplomatic Conference who drafted and negotiated the Additional Protocols were cognizant of this reality. It led them to caveat the obligations with the phrase “to the maximum extent feasible.” Indeed, some States emphasized during negotiations that Article 58 “should in no way affect the freedom of a State Party to the Protocol to organize its national defence to the best of its ability and in the most effective way” (ICRC Commentary, ¶ 2243).

Feasibility is accordingly the determinative factor when assessing compliance with the obligation. Feasible precautions are commonly described as “those that are practicable or practically possible, taking into account all circumstances ruling at the time” (DoD Law of War Manual, § 5.2.3.2). The description also appears in Protocols to the Convention on Conventional Weapons Convention [Incendiary, art. 1(5); Amended Mines, art. 3(10); Explosive Remnants, art. 5(1)], and numerous States included it in Understandings related to their ratification of Additional Protocol I (e.g., Canada, Germany, Netherlands, United Kingdom). What is clear is that parties to a conflict enjoy a wide margin of appreciation when determining which measures are feasible.

The DoD Law of War Manual usefully offers a non-exclusive list of circumstances that might bear on feasibility in the passive precautions context:

– the effect of taking the precaution on mission accomplishment;

– whether taking the precaution poses a risk to one’s own forces or presents other security risks;

– the likelihood and degree of humanitarian benefit from taking the precaution;

– the cost of taking the precaution, in terms of time, money, or other resources; or

– whether taking the precaution forecloses alternative courses of action.

As these examples illustrate, military factors affect feasibility assessments. This is beyond dispute. The ICRC’s Commentary to Article 57, for example, notes, “a Party to the conflict cannot be expected to arrange its armed forces and installations in such a way as to make them conspicuous to the benefit of the adversary” (¶ 2246), as might be the case if forces tasked with defending an urban area have to remain outside it. Indeed, in many cases, taking advantage of an urban area’s characteristics (e.g., to channel enemy forces into kill zones or conduct ambushes) enhances the defender’s ability to repel its enemy. This may necessitate operating near civilians or even using civilian objects for military purposes (in which case they become “military objectives”).

The Commentary also points out that feasibility can be affected by what is asked of the civilian population. It appropriately cautions that precautions “should not go beyond the point where the life of the population would become difficult or even impossible” (¶ 2245). This would be so, for instance, if evacuation or other movements from particular areas or locations worked a hardship on the civilian population. In some cases, that hardship would outweigh the risk caused by the proximity of military forces. As the Commentary observes, in some cases, it might make sense to only remove especially vulnerable groups, like children, mothers, the elderly, and the sick (¶ 2247).

Notably, the Commentary acknowledges that “circumstances of war can change very rapidly” (¶ 2249). To illustrate, it observes that a “building or installation which does not seem to be of any military interest can quickly become a major military objective.” For example, in an urban fight, a building may suddenly become essential to a defender because of the enemy’s direction of movement through the city. In such a circumstance, the defending force may have had no choice but to fight from the building and no opportunity to move civilians who might be in the area. Doing so is not a failure to take passive precautions.

Overall, it is difficult to draw definitive conclusions from the incidents Amnesty International describes. Take the example of military bases being established in populated residential areas. The organization presumably believes doing so violates Article 58(b). Clearly, the practice is cause for concern and should generally be avoided. Still, it is only when it would have been militarily feasible to base them elsewhere without sacrificing any benefits derived from the location that violation occurs.

Amnesty International claims that was the case: “Most residential areas where soldiers located themselves were kilometres away from front lines. Viable alternatives were available that would not endanger civilians – such as military bases or densely wooded areas nearby, or other structures further away from residential areas.” But as the DoD Law of War Manual notes, “Legitimate military reasons often require locating or billeting military forces in urban areas or other areas where civilians are present. For example, forces may be housed in populated areas to take advantage of existing facilities, such as facilities for shelter, health and sanitation, communications, or power” (§ 5.14.1).

And, of course, being some distance from the front lines is usually a good idea from a force protection perspective. The unit in question might also be serving as a rapid reaction force that needs to be located where it can reach multiple locations. As to forests, wooded areas are excellent for cover; but it is also challenging to maneuver in them.

The more worrisome Amnesty International assertion is that Ukrainian forces have launched strikes from populated civilian areas. Yet, recall that Russia enjoys operational advantages such as air superiority and the range of fires. If Ukrainian forces had launched those strikes from non-urban areas, it would sometimes have enhanced Russia’s ability to locate and destroy them.

Or take the case of “Amnesty International researchers witness[ing] soldiers using a residential building some 20 metres from the entrance of the underground shelter used by the residents [of a tower block] where [an] older man was killed.” Unfortunately, the report does not indicate why the soldiers were there or what alternative locations might have been available to them. Moreover, depending on the circumstances, the availability of a nearby underground shelter might have decreased the risk to civilians.

And Amnesty International notes that “[o]ther obligations to protect civilians from the effects of attacks include removing civilians from the vicinity of military objectives and giving effective warning of attacks that may affect the civilian population.” But the organization’s report does not indicate whether the civilians were willing to relocate, where they would go, whether it was safe to move them, or whether the opportunity to do so presented itself in the circumstances. As the DoD Law of War Manual notes, “The evacuation of civilians from areas likely to be attacked is advisable when there is immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving them in place” (§ 5.14.2, emphasis added).

I want to emphasize that I am only saying that there may have been sensible military reasons for positioning the Ukrainian troops, equipment, and operations in the vicinity of civilians and Ukraine’s failure to evacuate nearby civilians. Yet, without more detail about individual incidents, it is impossible to conclude one way or the other whether Ukraine has failed to comply with its passive precautions obligations.

Hospitals and Schools

The Amnesty International report also highlighted Ukrainian forces’ use of schools and hospitals. Regarding the former, it found that the …

Ukrainian military has routinely set up bases in schools in towns and villages in Donbas and in the Mykolaiv area. Schools have been temporarily closed to students since the conflict began, but in most cases the buildings were located close to populated civilian neighbourhoods…. Amnesty International researchers either found soldiers using the premises or found evidence of current or prior military activity – including the presence of military fatigues, discarded munitions, army ration packets and military vehicles.

As the Amnesty International report acknowledges, there is no per se prohibition of using schools for military purposes in IHL. However, when the military does so, the facility is converted into a military objective through “use” for military purposes. Assuming the Amnesty International account is accurate, the schools in question became lawfully targetable military objectives during their military-related use (subject to the rule of proportionality and the requirement to take precautions in attack). But was their use unlawful?

The fact that children appear not to have been in the facilities at the time would suggest the absence of intent to engage in human shielding. This means the issue is whether the use of the schools complies with the requirement to take passive precautions.

Assuming some military rationale for using the facilities, the questions would be whether the use placed nearby civilians at greater risk and, if so, whether feasible alternatives to using them existed.

Amnesty International suggests civilians should have been warned and evacuated. But the presence of military personnel at a school would be self-evident in most cases. Moreover, the obligation to take passive precautions is always contextual. For instance, it is unclear whether there were civilians who were unaware of the presence of the soldiers or were willing and able to be evacuated.

Unfortunately, the report does not address these and related matters, making it impossible to offer definitive legal conclusions.

According to Amnesty International’s report, Ukrainian forces also misused protected medical facilities. Its researchers…

witnessed Ukrainian forces using hospitals as de facto military bases in five locations. In two towns, dozens of soldiers were resting, milling about, and eating meals in hospitals. In another town, soldiers were firing from near the hospital.

A Russian air strike on 28 April injured two employees at a medical laboratory in a suburb of Kharkiv after Ukrainian forces had set up a base in the compound.

Amnesty International noted that “using hospitals for military purposes is a clear violation of international humanitarian law.” Indeed, it has long been the case that medical facilities enjoy “special protection” under IHL (e.g., Hague Convention Regulations, art. 27; Geneva Convention I, art. 19; Geneva Convention IV, art. 18; Additional Protocol I, arts. 12-14; Customary International Humanitarian Law study, Rule 28).

The critical provision with respect to the reported behavior is Article 12(4) of Additional Protocol I. It provides, “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.” But the rule is limited. The mere presence of military personnel in or near medical facilities (aside from those guarding the facility or being treated) is not unlawful absent an intent to shield. Amnesty International cites no facts unambiguously demonstrating such an intent, leaving only speculation as to why they were there.

Article 12(4) also provides “Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety.” This provision precludes the placement of medical facilities near military objectives, not the other way around. That said, under Article 13 of the same instrument, the protection of medical units ceases if “they are used to commit, outside their humanitarian function, acts harmful to the enemy” (but only after a warning to desist is issued). In other words, the medical facility that is so used becomes a military objective, and any harm to other than military personnel, equipment, and the facility that is being used for military purposes (like patients and medical equipment) is subject to the rule of proportionality and the requirement to take precautions in attack.

The ICRC Commentary observes that the definition of “acts harmful to the enemy” “is very broad (¶ 551). It refers not only to direct harm inflicted on the enemy, for example, by firing at him, but also to any attempts at deliberately hindering his military operations in any way whatsoever.” The DoD Law of War Manual provides, “[f]or example, a hospital may not be used as a shelter for able-bodied combatants or fugitives, as an arms or ammunition depot, or as a military observation post” (§ 7.10.3.1). Setting up a base in a medical compound would certainly qualify, but whether “resting, milling about, and eating” would is questionable.

Yet the rule simply removes the special protection medical facilities enjoy; absent intent to shield, there is no IHL violation. Of course, whether a medical facility is targetable or not, Ukrainian uses of, or presence near, them invites a Russian attack and triggers the “passive precautions” obligation.

Concluding Thoughts

Amnesty International is a respected human rights organization that deserves praise for advancing respect for international human rights globally. And with respect to this conflict, any suggestion that the organization is biased is simply wrong. Moreover, assertions that the organization erred in pointing to possible Ukrainian IHL violations when Russia is a habitual violator of the jus ad bellum and IHL are badly misguided. After all, the principle of equal application is what gives IHL credibility on the battlefield.

That said, Amnesty International’s allegation of unlawful conduct by Ukraine is unconvincing. IHL is a nuanced body of law because it must carefully balance two sometimes competing interests – military necessity and humanitarian considerations. Even if the facts in the report are accurate, and there is no reason to believe they are not, it lacks the detail necessary to support the charge.

In my estimation, Amnesty International has acted irresponsibly by making the claim without providing supporting evidence, citing the specific rules that it believes have been violated, or laying out its legal analysis. These failures have deprived Ukraine of a meaningful opportunity to respond and the international community of an ability to properly assess it.

I urge the organization to immediately remedy the situation by releasing its evidence and explaining the legal basis for its conclusion that the conduct violates IHL. As the entity leveling a charge of unlawful conduct, some of which could qualify as a grave breach of IHL, Amnesty International bears the burdens of persuasion and proof. It has not met that burden.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.

 

Photo credit: Pexels

 

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