Ukraine and the Defender’s Obligations

In a recent post, I expressed my concern over the ability of the modern law of armed conflict (LOAC) to continue to not only regulate hostilities, but also do it in a way that survives actual near-peer conflict. I concluded:

The lack of near-peer hostilities for the past 70+ years has left the increasing regulation of the conduct of hostilities untested in the crucible of actual superpower armed conflict. Let’s hope that the rules have remained practical enough to effectively limit warfare in a way that also encourages compliance. More importantly, let’s hope that the year ahead doesn’t give us a chance to find out.

Unfortunately, we are now in the midst of an armed conflict that will likely provide insight on the will, and also the capability, of two very militarily capable nations to apply LOAC. Much of the scrutiny of the current military operations will rightly be on Russia, and its actions with respect to LOAC. However, as the defender in this conflict, Ukraine also has LOAC obligations to its civilian population.

The Law of Defensive Precautions

The rules are commonly referred to as “Precautions in the Defense,” and are found in Article 58 of Additional Protocol I (API), a treaty to which both Ukraine and Russia are parties. Article 58 states:

Article 58—Precautions against the effects of attacks

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.

In addition to the treaty obligation, the International Committee of the Red Cross (ICRC) has argued that the provisions of Article 58 are customary international law in international armed conflicts (Rules 22-24). While not specifically attributing the obligation to either API or Customary law, the U.S. DoD Law of War Manual states that:

military commanders and other officials responsible for the safety of the civilian populations must take reasonable steps to separate the civilian population from military objectives and to protect the civilian population from the effects of combat. (para. 5.14).

As I have written elsewhere, the obligations of the defender under both Article 58 and the U.S. understanding of the LOAC rule can be reduced to two general commitments: 1) the obligation to segregate the civilian population from military operations; and 2) the obligation to protect those that you can’t segregate. Both of these obligations that are introduced by the mandatory language of “shall” are subject to the limiting language of “to the maximum extent feasible.” In the context of precautions, this language is understood to mean that States must do what is practicable, given the circumstances.

Ukraine has the legal obligation to apply these rules, despite the probability that they will likely be outgunned and outmanned by their opposing forces. In fact, the obligation exists despite any potential inconvenience to the defender and even regardless of the actions of the attacker. In other words, Ukraine’s obligations remain despite potential Russian violations. On the other hand, as a commentary to API notes, “during the final debate several delegations indicated that in the view of their governments, this article 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.” (para. 2243). While these comments have particular application to peacetime organization, there is no indication that this understanding would not also apply to defensive organization in response to a military invasion.

Applying Defensive Precautions

So, in practical terms, what must Ukraine do? Beginning with the obligation in Article 58(a), Ukraine must segregate the civilian population, to the maximum extent feasible, from the vicinity of military objectives. If the military headquarters in Kyiv is near a residential district, the government should, to the maximum extent possible, relocate those civilians. Military telecommunications equipment should be separated, to the maximum extent feasible, from civilian telecommunications equipment. Ukraine’s current establishment of a curfew during the hours of darkness is an example of segregating civilians who might otherwise be mistaken for fighting forces at night and become targeted. Of course, it may not be feasible to separate any currently collocated material and civilian objects in the face of a current invasion, but certainly these obligations should be considered as the population moves in response to attacks.

Further, the Ukraine government has an obligation under Article 58(b) to avoid, to the maximum extent feasible, placing military units or weapon systems in the vicinity of civilians. For example, as military assets establish positions throughout the city to form an effective defense, military commanders should, to the maximum extent feasible, establish those positions away from civilian populations. Similarly, if a particular road intersection is a key point defense position, the government should redirect civilian traffic through other roads to avoid civilian traffic in that area. Storing weapons and ammunition in buildings containing civilians and establishing firing positions in populated areas such as residential neighborhoods or schools would likely violate this obligation, unless those facilities were evacuated. Densely populated areas, such as Kyiv and Kharkiv, add to the complexity of compliance, but do not remove the obligation.

Recognizing that segregation may not always be possible, or feasible, those civilians that the government can’t segregate, they must protect from the dangers of military operations. This is clearly not an absolute obligation but is again limited by feasibility. However, it encompasses all civilians in the government’s control. Ukraine has already demonstrated attempts to satisfy this obligation by moving civilians into subway tunnels to act as protection from the effects of attacks. Other actions might include maintaining the operation of hospitals, firefighting capabilities, and other protective services. This obligation becomes especially significant in times of sieges or other encirclements, particularly of large populations centers.

Conclusion

While there will certainly, and rightly, be great scrutiny on Russia’s compliance with required precautions in the attack, Ukraine’s obligations to its civilian population to take precautions against the effects of attacks remains an important legal requirement. While limited by the constraints of feasibility, Ukraine’s compliance with Article 58 can significantly facilitate the protection of civilians during current military operations, particularly if combined with Russian compliance with its API Article 57 obligations in the attack.

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Eric Talbot Jensen is a Professor of Law at Brigham Young University.