Ukraine One Year On – Defying the Odds

On 24 February 2023, one year has passed since Russia commenced its full-scale invasion of Ukraine. The past year has been filled with acts of aggression, war crimes, and continued atrocities. International humanitarian law (IHL) is one of the most profound and universally accepted regimes of international law, dedicated to regulating armed conflicts. Yet, it has not been able to prevent recurrent violations of the laws of war.

The armed conflict between Russia and Ukraine has presented the international law community with multiple legal issues: some old; some innovative and new. Russia’s “special military operation” has continuously tested the boundaries, understanding, and the role of law in armed conflict.

For the past year, Articles of War authors have dissected, analyzed, and interpreted ongoing events, war crimes, and fundamental questions of IHL in the “Ukraine Symposium.” At the one year “anniversary” of the war, we have published close to 130 legal analyses of the conflict, providing a continuous and concise legal discussion on a wide variety of pertinent issues. A recap of the critical analyses within the Symposium shows that even though Ukraine remains bruised by the continued destruction and aggression, it is still defying the odds.

Aggression, Conflict Classification, and Neutrality 

Since the beginning of the invasion last February, Russia has used international law cynically to justify its full-scale war against Ukraine. Clever rhetoric and a carefully crafted narrative regarding the “special military operation” aimed to provide a legal basis for Russia’s use of force. Yet, the legal conclusions were clear (see here and here): Russia’s attack was an act of aggression and an egregious violation of international law.

The conflict between Russia and Ukraine is clearly international in character. Questions of conflict classification nevertheless arise, particularly in the east of Ukraine where armed groups have been fighting government forces since 2014. In the past year, non-State actors have continued to play a prominent role in the conflict, with proxy forces, foreign fighters and other non-State actors, sometimes described as mercenaries, adding a significant degree of complexity to the hostilities. The involvement of the Wagner Group and Ukraine’s International Legion for the Defense of Ukraine, for example, raise concerns regarding the prosecution of foreign fighters, including their entitlement to combatant and prisoner of war status.

One of the most challenging questions raised by the conflict has been the issue of neutrality in light of the critical role played by non-belligerent States. The extensive weapons supplies, intelligence sharing, military aid, and other support that States have provided to Ukraine all implicate the law of neutrality and how it should be understood in modern times (see here, here, here, and here). Discussions of “qualified“ or “benevolent“ neutrality, and distinguishing between an aggressor and the victim of aggression, are more important than ever.

(Il)legitimate Targets

Through its attempts to change Ukraine’s post-Soviet borders by force, Russia continues to challenge not only the territorial integrity of Ukraine but also the wider international legal order. Experts have analyzed targeting issues (related to dams, ships, bridges and oil tankers) throughout the year. In recent months, Russia’s persistent attacks on power infrastructure have raised particular concerns. Attacks on critical nuclear infrastructure, threats of using tactical nuclear weapons, and accusations of developing biological warfare and dirty bombs have elevated not only the rhetoric of the war but also the legal stakes.

Continuous indiscriminate attacks against illegitimate targets (such as hospitals, schools, and civilian residential areas) in the past year indicate a deliberate choice on the part of the attacker to pressure Ukraine through the means of terror. This has manifested principally on land. However, the conflict’s implications have also been evident in the cyber (see here), maritime (see here), air, and space domains (see here and here).

Protection of Civilians

As Russia’s invasion stalled over the course of the year, the real human tragedy and the war’s impact on civilians became increasingly apparent. The theater of war provided ample evidence of war crimes and IHL violations (e.g., kidnapping public officials for intimidation purposes, deportation of civilians and forcible transfer of children to Russia, weaponizing civilians as human shields). A year later, civilians remain at enormous risk of harm and mistreatment. Reports of forced civilian labor and forced conscription in occupied areas are just a few examples of Russia’s disregard for IHL. Moreover, questions have arisen whether Russia is committing genocide in Ukraine.

Issues of food insecurity, rape, displacement, deportations, and the destruction of cultural property serve as a grave reminder that the IHL rulebook on civilian protections is often ignored on the battlefield. As IHL does not exist in a vacuum, the war has also raised questions concerning the enforcement and substance of human rights law and international refugee law in armed conflict.

Innovation in War

The war in Ukraine has also presented glimpses of what modern warfare looks like in a hyper-connected data-rich world. Besides traditional and well-known means and methods of warfare (e.g., cluster munitions, thermobaric weapons, booby traps) Ukrainians have demonstrated true innovation in war. These developments raise questions regarding the necessary legal review requirements for field-modified weapons. In addition, they potentially implicate civilians in the hostilities. Resistance activities may lead to civilians’ direct participation in hostilities and consequent loss of IHL protections, including through novel technological means such as the ePPO app (see here and here).

Another innovation is Ukraine’s “I Want to Live” project to encourage, enable, and empower Russian military personnel to surrender to Ukrainian armed forces. Such technologically enabled surrender, in this case surrendering to drones, creates novel legal as well as practical challenges.

The use of deepfake technologies for information warfare, autonomous vehicles, and “naval drones” (see here and here) provided further scope for discussion. Each of these innovations raises questions regarding IHL’s application to modern warfare and whether the law can adequately address these emerging conditions of combat.

The End of Conflict and Accountability

One of the most frequently asked questions in the past year has been how the fighting in Ukraine might end. There have been several proposals for negotiating an end to the war. Whatever form these may take, they cannot ignore calls for accountability regarding the many LOAC violations and war crimes committed in Ukraine (see here, here, here, and here). Yet, ensuring that all those who commit war crimes in the Russia-Ukraine conflict are held to account poses a challenge. Litigating Russia’s aggression without Russian involvement, in traditional venues such as the International Court of Justice (ICJ), will be difficult. Thus, there have also been calls for a new multilateral war crimes commission to ensure comprehensive criminal justice and accountability.

Ukraine’s response to Russia’s illegal invasion has included a multi-pronged legal strategy involving cases in at least five different international courts and tribunals, including the ICJ, the International Criminal Court, and the European Court of Human Rights. Thus far, the ICJ’s provisional measures order in Ukraine’s case against Russia is unprecedented.

With more than 8000 open investigations, the Ukraine-Russia war will likely be the most documented armed conflict to date. The multilayered investigation and documentation responses to the conflict should provide ample evidence for any accountability regime that may be established in the future.

Conclusion

The Articles of War “Ukraine Symposium,” in the year since Russia’s full-scale invasion commenced, has included reflection and analysis regarding numerous legal aspects of the ongoing conflict. It is clear that the events of the past year challenge prevailing understandings of IHL and wider international law on multiple fronts. Thus, the war has not only changed Europe’s security architecture, it also represents a pivotal moment in the development of IHL. As the UN Secretary General remarked on 23 February 2023, Russia’s invasion stands as a grave reminder for Ukraine and the international community. It is a continued affront to our collective consciousness and a violation of the UN Charter and international law.

As the war enters its second year, Articles of War will continue to provide up to date, concise, and expert analysis on the conflict in Ukraine. As calamitous as the war has been, to ignore its legal lessons would only compound its tragedy. To ensure we, the new generation of military leaders we educate, and those in our shared field of practice learn all we can from the conflict, the Lieber Institute for Law and Warfare has begun compiling the “Ukraine Symposium” into an edited volume. We hope to publish the volume soon in both electronic and print formats with the recently established West Point Press. Look for the volume later this spring and consider integrating it into your law of war practice, research, and instruction. Meanwhile, please join us in hoping for a rapid return to peace in Ukraine.

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Liisi Adamson is a Law Researcher at the NATO Cooperative Cyber Defence Centre of Excellence and Project Manager of the Tallinn Manual 3.0 process. She is also Senior Editor of Articles of War.

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