Ukraine Symposium – A War Crimes Primer on the Ukraine-Russia Conflict

More than a month into the conflict between Russia and Ukraine, allegations of war crimes have proliferated from media, advocacy groups, international organizations, and even States. Meanwhile, the Prosecutor of the International Criminal Court has initiated an investigation into war crimes that have allegedly been committed in Ukraine. While the chaotic conditions of combat complicate collection and evaluation of factual evidence, it is not too soon to survey legal bases for these allegations.

This post examines select war crimes recognized in international law that may be relevant to the conflict in Ukraine. We focus on offenses adopted as grave breaches under the Geneva Conventions system, since both Russia and Ukraine have ratified these treaties and many states have incorporated their war crimes provisions into their national penal codes. We offer preliminary points worth legal emphasis for each with a view toward informing States’ obligations and prosecutors’ charging decisions. We necessarily rely on open-source research; new facts may emerge in connection with the many investigations underway that would alter the potential war crimes characterization of many of these incidents.

The Grave Breaches System

Although a foundational feature of the law of war since the late-nineteenth century, the Geneva Conventions regime did not include an internal mechanism for individual criminal responsibility until a post-Second World War diplomatic conference adopted the four Geneva Conventions in 1949. It was always clear that violations of the various iterations of the Conventions were wrongful acts on the part of States. But their status as individual crimes was not. As a direct response to this gap, the 1949 Conventions introduced the notion of “grave breaches” as a basis for enforcement against individuals.

Although the Conventions comprise well over 400 articles that regulate armed conflict, only a small fraction of those provisions amount to grave breaches when violated. The same holds true for Additional Protocol I (AP I) of 1977, which supplements the Conventions with respect to international armed conflict. AP I—which both Ukraine and Russia have ratified—incorporates the grave breaches system, identifying additional violations for individual criminal enforcement.

Grave breaches activate important legal obligations for States Parties to the Conventions and AP I. All Parties to those instruments, whether belligerent Parties or neutral States to the conflict, are obliged to enact criminal sanctions for grave breaches. They must also search for and either bring before their courts or extradite persons responsible for them (GC I, art. 49, GC II, art. 50, GC III, art. 129, GC IV, art. 146).

Because the situation in Ukraine is an international armed conflict to which the Conventions and AP I clearly apply, all States, by virtue of universal ratification, owe substantial enforcement obligations with respect to grave breaches of the 1949 Conventions in that conflict. Meanwhile, the 174 States Parties to AP I must carry out the same obligations with respect to grave breaches of AP I.

The Offenses Recognized by the 1949 Conventions

As with the overwhelming majority of the 1949 Conventions, the grave breaches of the Wounded and Sick (also at Sea), Prisoner of War, and Civilian Conventions focus on offenses that take place when a victim is in the hands of a party to the conflict. Each grave breach thus assumes exercise of a degree of control over the victim. Further, the Geneva grave breaches regime applies only to “persons or property protected by the … Convention[s].” As such, only offenses against victims protected by the respective convention (wounded or sick combatants, shipwrecked, prisoners of war, and protected persons) amount to grave breaches. The circumstances of each victim must also meet personal conditions of application (ratione personae) outlined by the respective Convention to prove a grave breach (GC I, art. 13, GC II, art. 13, GC III, art. 4, GC IV, art. 4). Civilians of Ukrainian nationality in the hands of Russian forces qualify as protected for purposes of any grave breach of the Fourth Geneva Convention on Civilians.

Wilful Killing, Torture, or Inhuman Treatment

As an example of only one of many emerging reports charging custodial abuse, it is alleged that in early March, Russian forces abducted a Ukrainian journalist working for a French radio station and subjected him to electric shocks, beatings with an iron bar, and mock execution over the course of nine days. And more horrific images have been emerging as Russian forces retreated from Kyiv regions, showing evidence of summary execution and cruel violence.

The Fourth Convention enumerates both torture and inhuman treatment of such persons as a grave breach. Other international instruments define torture; however, for purposes of the Fourth Convention it has been described as “more than mere assault.” (Pictet Commentary, p. 598). The U.S. Department of Defense Law of War Manual identifies torture as infliction of either physical or mental “severe pain or suffering … or the threat of imminent death” (§ 8.2.4, n.38). A widely accepted, though perhaps now dated, analysis indicates torture for purposes of a grave breach involves “infliction of suffering … to obtain … confessions or information” (Pictet Commentary, p. 598). A more current understanding is likely not limited to these specific motives. Instead, punishment, intimidation, discrimination, or coercion are also sufficient motives. (ICC Elements of Crimes, Article 8(2)(a)(ii)). Absent the listed motives, severe physical or mental pain and suffering may amount to “inhuman treatment,” also a grave breach when committed against a protected person.

Unlawful Confinement of a Protected Person Civilian

On 11 March, media reports claimed that Russian forces had abducted the mayor of the city of Mariupol. Similar abductions of government officials were subsequently reported in Dniprorudne.

Historically, invading forces have resorted to arbitrary and cruel confinement, particularly in situations of occupation, to harass, threaten, and subdue local populations. While the grave breach of unlawful confinement clearly seeks to repress such abuse, the Convention also acknowledges belligerents’ authority to intern (GC IV, art. 27(4), 42). When other measures of control are inadequate, belligerents may intern or assign civilians to residences if absolutely necessary for security reasons. A highly influential commentary by Jean Pictet observes, “[t]he illegal nature of confinement would therefore be very difficult to prove in view of the extensive powers granted in this matter to States.” (Pictet Commentary, p. 599).

Internment should not, however, be equated with incarceration or penal confinement. The Convention prescribes an elaborate regime of protections and conditions for internments that reflect minimal measures of control rather than punishment. An entirely arbitrary resort to conditions that amount to incarceration of protected persons would amount to a grave breach.

Unlawful Deportation or Transfer

Beyond the refugee and displacement crisis the conflict has provoked, reports have emerged of deportations of Ukrainian citizens to Russian territory. A report alleges that Russian forces deported 4,000-5,000 Mariupol residents across the Russia-Ukraine border. Meanwhile, the alleged removal of 2,389 Ukrainian children from Donetsk and Luhansk to Russia has provoked particular outrage.

The grave breach of deportation refers chiefly to violations of Article 49 of the Fourth Convention. Deportation generally refers to removal, transfer, or resettlement of protected persons from territory. As a post by Professor Michael N. Schmitt makes clear, the deportation prohibition of Article 49 applies only to occupied territory. Moreover, to constitute a grave breach, deportation must be involuntary or coercive. Coercion need not be particularly severe or involve physical force. Threats, orders, or psychological pressure may be sufficiently coercive to constitute a breach of the treaty. Finally, it is not necessary to prove that deportation is permanent; even temporary displacement or resettlement that does not amount to unavoidable evacuations for imperative security reasons may amount to a grave breach.

Taking of Hostages

It has been alleged that on March 15, Russian forces seized the Mariupol Regional Intensive Care Hospital, holding its patients hostage. Article 34 of the Fourth Convention (and Article 75 of AP I) prohibits hostage taking which, as a prior post explains, involves “a means of intimidating the population in order to weaken its spirit of resistance and to prevent breaches of the law and sabotage in order to secure the security of the Detaining Power” (quoting Pictet Commentary). To qualify as a grave breach, hostage taking requires more than mere deprivation of liberty. The hostage taker must threaten further or prolonged detention or harm (p. 600) and, usually in the form of some communication to officials or the population, compel them to act or refrain from acting as an explicit or implicit condition for the safety or the release of hostages (ICC Elements of Crimes, Article 8(2)(a)(viii).

Additional Protocol I

Additional Protocol I of 1977 supplemented the respect and protect provisions of the 1949 Conventions in several respects. But its most significant accomplishment was to add limits on the conduct of hostilities and targeting operations to the Conventions’ catalog of protections. The grave breaches of AP I thus focus on crimes related to attacks during combat operations. Most important for present purposes are the prohibitions against deliberately targeting civilians or civilian objects and against indiscriminate attacks.

“[M]aking the civilian population or individual civilians the object of attack”

Many war crimes allegations have concentrated on indiscriminate attacks, showing footage of death, injured civilians, and damaged civilian buildings. Allegations of indiscriminate attack have been made, for example, against the air strikes on the preschool in Okhtyrka, the small public square in Chernihiv, the residential area in Sumy, and the maternity and children’s hospital in the city of Mariupol. Abhorrent as these events might be, civilian casualties alone do not prove deliberate attacks against civilians. As Charles Garraway discussed, result or purely effect-based fact-finding is a methodologically flawed approach to proving the war crime of attacks on civilians.

For war crimes on this ground, it must be established that the intended target was not a legitimate military objective. The presence of civilians alone is not dispositive to this determination. In fact, civilians may become lawful targets when they take direct part in hostilities. The mere fact that civilians are fired upon as they flee from the exchange of fires does not necessarily prove that they were the object of the unlawful attack. Civilian casualties resulting from human errors do not qualify either. Instead, willful targeting of protected civilians, as the underlying intent of the attack, is the determining factor of this grave breach of AP I.

Assuming a legitimate military target, one may also take the position that a direct attack against civilians can be inferred from the indiscriminate character of the weapon used (para. 132). The case for an indiscriminate attack depends on the accuracy of the weapon used and the environment in which it was used. For example, early in the conflict, it was reported that 9M79 Tochka ballistic missiles were deployed for a strike in the vicinity of a hospital building in Vuhledar, killing four civilians and wounding ten more. The 9M79 Tochka (also known as SS-21 Scarab) is a Russian-made, guided short-range ballistic missile and is reported to be capable of hitting a target with less than 95m circular error probability (meaning that it has a 50 per cent chance of falling within a radius of 95m around their average impact point). As with any other guided-weapons, whether use of this particular missile in Vuhledar would amount to an indiscriminate attack depends on the proximity of the intended target to civilian buildings, including the hospital.

“[L]aunching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects”

An attack, even when directed against legitimate military targets, may nonetheless constitute a war crime if it was known with certainty that it would cause excessive civilian harm relative to the military advantage anticipated (para. 3479). One must not equate this standard with the extensiveness of damage caused. It is not necessarily a war crime or grave breach to cause extensive death or injury to civilians and destruction or damage to buildings if the anticipated military advantage is significant enough. Civilian harm may not be considered excessive, for example, if a high value military objective (such as weapons and radar stations) located in the vicinity was the ultimate target. Rather, it has to be established that the attack was expected to cause disproportionate harm to civilian lives and civilian objects weighed against the military advantage anticipated from it.

Allegations have been made that war crimes were committed due to the use of blast weapons, such as cluster munitions and thermobaric weapons. As Bill Boothby and Matt Montazzoli have discussed previously, it is not necessarily unlawful to use cluster munitions and thermobaric weapons. The extensive damage that may be caused by these systems does not necessarily render the attack disproportionate. To establish a war crime on this ground, an inquiry must be made into the military advantage Russian forces anticipated to gain from the attack, their estimate of incidental civilian harm that would have resulted, and whether feasible precautions were exercised to minimize or reduce collateral damage.

“[L]aunching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects”

War crimes allegations have been made regarding attacks on or near nuclear power plants and related facilities. On March 3, for example, Russia conducted artillery strikes on the Zaporizhzhia Nuclear Power Plant, hitting various buildings, including the first power unit. As the U.S. State Department announced, the deliberate targeting of civilian objects, such as nuclear power plants, may amount to a war crime in certain circumstances under the Additional Protocol I grave breaches regime.

However, the special protection regime under Article 56 of AP I, addressed by Professor Schmitt with respect to dams, does not prohibit targeting nuclear power plants entirely, where legitimate military objectives are located at or in the vicinity of these installations. As Tom Dannenbaum correctly assessed, even if these attacks were to be found unlawful, it is difficult to establish that individuals who engaged in this operation acted in the knowledge that the attack would cause excessive civilian loss, injury, or damage, especially given that there appears to have been relatively little collateral damage.

“[M]aking a person the object of attack in the knowledge that he is hors de combat”

A report of Ukrainian forces shooting Russian prisoners of war implicates the grave breach of attacking one who is unable to continue fighting due to injury or sickness or has expressed the clear intent to surrender. Additionally, a warning issued by the Ukrainian Special Operations Forces that it will no longer capture Russian artillerymen appears to have generated confusion regarding the scope of this protection.

There is no obligation to capture enemy combatants per se. Assertions that “no more death, injury, or destruction be caused than is actually necessary for the accomplishment of a legitimate military purpose” (made originally in the controversial International Committee of the Red Cross Interpretive Guidance on the Notion of Direct Participation in Hostilities and later recalibrated as an issue of hors de combat by Ryan Goodman) have been subject to extensive debate, including critique by the late Hays Parks.

A grave breach in this respect is committed only when a person is engaged in a deliberate attack against the adversary, causing “death or serious injury to body or health,” and knowing the target is unable to defend themselves due to injury or sickness or despite a clear expression of genuine and unconditional surrender where it is feasible to accept their surrender. Additionally, violence directed against prisoners of war or other persons hors de combat may amount to grave breaches under the respective 1949 Conventions (see above).

“[T]he perfidious use of a distinctive emblem”

We are aware of no reporting of misusing protective emblems, such as the Red Cross and Red Crescent, for the purpose of killing, injuring, or capturing an adversary. However, it is important to reiterate that it is not a war crime to fight in civilian clothing or enemy uniform under AP I. As discussed in the previous post by Chris Koschnitzky and Professor Schmitt (see also the post by Ken Watkin), however, it may well be unlawful to engage in attack while wearing civilian clothing or enemy uniform, in the sense of this being a breach of the treaty. As such, those who are engaging in such conduct may well be denied prisoner-of-war status and the various privileges that come with that status. This conduct alone, does not constitute a grave breach of the treaties. All that said, the drafters of the Rome Statute of the International Criminal Court at Article 8(2)(b)(vii) made it a war crime to make “improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions” so long as this conduct results in death or serious personal injury.

“[M]aking the clearly-recognized historic monuments, works of art or places of worship constituting the cultural or spiritual heritage the object of attack, causing extensive destruction”

The United Nations Educational, Scientific and Cultural Organization (UNESCO) has reported and condemned attacks that have caused damage to cultural heritage sites in the cities of Kharkiv and Chernihiv. On March 16, a missile strike hit the Donetsk Regional Drama Theater, where 1,000-1,200 civilians were sheltering in the besieged city of Mariupol. Apart from whether these attacks amounted to war crimes due to indiscriminate attacks or attacks with disproportionate effects on civilians, the cultural or spiritual significance of those buildings itself may cause those responsible for ordering or carrying out these operations to face war crimes allegations.

To establish war crimes by virtue of the cultural or spiritual significance of the target, it must be ascertained that the object was clearly recognized as the cultural or spiritual heritage of the people, ideally with the display of the distinctive blue shield emblem. Second, the attack must be directed against it and cause extensive destruction. Damage caused indirectly, for instance as a result of destroying a legitimate military objective nearby, does not meet the requirement. Third, this grave breach of AP I cannot be established if there is evidence of adversary use of the cultural property in support of their military effort or if the cultural object is located in the immediate vicinity of military objectives.

Conclusion

Despite its lofty aims, the grave breaches system has in many respects proved a disappointment. Few States have met their obligations either to fully legislate sanctions or to exercise jurisdiction as envisioned by the Conventions. The United States, for example, has not fully implemented these obligations, rendering its War Crimes Act a “dead letter” and significantly limiting its relevance to the conflict in Ukraine.  Meanwhile, recent prosecutions of grave breaches have been plagued by contentious legal questions. From the mid-1990s until very recently, the International Criminal Tribunal for former Yugoslavia wrestled endlessly with challenges to the applicability of the grave breaches regime to the various branches of the Balkan conflicts. And the complex combinations of nationalities and ethnicities involved in those conflicts stretched the language, if not the logic, of the notion of a protected person under this regime beyond the original intent of the Conventions.

But the abundantly clear classification of the conflict in Ukraine and the fact that, as envisioned by the Conventions, so many putative victims of alleged grave breaches in Ukraine meet the Conventions’ personal criteria generally presents a far easier case for the application of the grave breaches system.

However, the daunting task of collecting and preserving the evidence required to prove grave breaches to the high standard required for criminal conviction remains. While the Conventions’ grave breaches often set demanding elements of proof, particularly with respect to the accused’s knowledge or mental state in the chaotic and uncertain conditions of combat, the grave breaches system offers some prospect for justice, particularly if the community of States resolves to implement it as so hopefully envisioned in 1949.

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Sean Watts is a Professor of Law in the Department of Law at the United States Military Academy, Co-Director of the the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

Hitoshi Nasu is a Professor of Law in the Department of Law at the United States Military Academy.

Photo credit: UNDP Ukraine