The war Against Ukraine Exposes the Shortcomings of International Humanitarian law: Together we can Remedy Them

Mikhail Savva, political scientist and expert at the Ukrainian Centre for Civil Liberties, calls for reform of international humanitarian law in the face of Russian authorities’ misleading and deceitful behavior. In his view, the existing mechanisms are not sufficient to force Russia to respect the international conventions it has itself signed. In January 2023, he took part in a task force tackling these issues, bringing together representatives of civil society from Ukraine, Russia and France.

The tragedy of the Second World War led most states to create a system of international humanitarian law to subject wars to minimal rules. The aim was simple: to reduce human suffering. The Geneva Conventions and their Protocols fulfilled this objective for several decades, even if the situation continued to deteriorate. The Syrian war was the first clear signal of the failure of international humanitarian law, and Russia’s aggression against Ukraine showed that the system was not working.

On March 3, 2022, some 500 meters away from me, I saw a Russian infantry fighting vehicle fire at two cars on the Zhitomir highway, a few kilometers from Kyiv. From a military point of view, there was no need to kill the passengers in these cars, which were shredded by 30-mm shells. I knew what had to be done. On the day of the invasion, the members of the Expert Council of the Ukrainian Organization for the Defense of Human Rights and the Center for Civil Liberties had met online with the President of the Organization, Mrs. Oleksandra Matviïtchouk, and had decided to set up a vast information platform on war crimes. The Civil Liberties Centre already had experience of these issues, having dealt with them since 2014.

After the Russian military convoy had passed on the highway, we were able to take photos of what had happened and record the license plates of the cars. It was only when we saw the legs of the passengers who had remained in the cars that it became clear to us that three people had died in each one: a child, a woman and a man. Traces of this were scattered by the following military convoy. It was the first time I had gathered evidence of a war crime. After March 3rd, I did so on an almost daily basis. As the fighting raged in the Kyiv region, I investigated the bombing of apartment blocks, power lines and civilian infrastructure. After the liberation of the Kyiv region, I interviewed people who had been victims of war crimes during the occupation.

Russian aggression against Ukraine, which began in 2014, has given rise to numerous violations of international humanitarian law. The Russians are killing and leaving to die prisoners of war and civilians in detention. They practice torture, capture non-combatants and imprison them illegally. The aggression launched in February 2022 has considerably increased the scale of these violations. Ukrainian human rights organizations and authorities have already recorded some 80,000 cases of violations of international humanitarian law. Most of these will be qualified as war crimes after investigation.

This new phase of aggression has highlighted a number of problems.

The Russian Federation’s violations of international humanitarian law are massive. They are flagrant and systemic. They are not excesses committed by agents who have lost their nerve. When I interviewed victims of war crimes in Boutcha, I came to wonder why, from the very first moments of the invasion, Russian soldiers were prepared to kill civilians. Wartime violence has a cumulative effect. It gradually takes hold as events unfold. But that’s not what happened. All it took was for a man to step out into the street and be hit by a hail of bullets. In Boutcha, in Iabloneva street, corpses lay on the sidewalks and on the road. Residents took the risk of asking a Russian officer to bury the dead. The only possible explanation is that Russian personnel have been trained in mass brutality by state propaganda, which deliberately incites hatred of Ukrainians.

The crimes are, for the Russian Federation, a means of waging war and keeping the population of the occupied territories in check. Sergueï Lyubytch was transporting water from Boutcha to Gostomel last March. His neighbors had asked him to bring some as they didn’t have any. Sergei was arrested by a Russian patrol; a bag was put over his head and he was taken to Russia via Belarus. He’s still in a detention center. Why is he there? According to the Russian authorities, people like him are dangerous. They show a willingness to help others, are active and can form a nucleus of resistance against the occupier. The Russians, for whatever reason, believe that they will destroy the potential for resistance by eliminating all those who show themselves to be active. In Russia, Putin’s regime applies the same strategy: active citizens are imprisoned or forced to leave the country.
The aggressor state claims to respect international humanitarian law, yet blatantly violates it and denies allegations of violation. When two mass graves were discovered in a churchyard after the liberation of Boutcha, Russia’s ruling camarilla declared that it was a “hoax”. The crimes in Boutcha and other towns and villages in the Kyiv region were committed by members of the 64th Motorized Brigade of the Russian Federation. In April 2022, Putin awarded this unit the title of “Guard Brigade”. This was a demonstrative response to facts constituting war crimes. No surprise there. The leaders of the Russian regime always lie. For example, they have repeatedly claimed that they withdrew their troops from the Kyiv region as a gesture of “goodwill”. But when they left Boutcha, the Russian soldiers were telling the locals: “We’re leaving because we’ve run out of bullets. The management has no more ammunition to give us”.

Signature of the Geneva Conventions in 1949 // British Red Cross

The Center for Civil Liberties records war crimes of all kinds. Including crimes committed by non-military personnel. I analyze interviews with Ukrainians who have returned from captivity. They are prisoners of war or, sometimes, civilian prisoners. While prisoners of war are exchanged, and some 2,500 have already returned to Ukraine, there is no procedure for releasing civilian prisoners. Russia simply refuses to release them, in violation of international humanitarian law. Most of the time, the investigation reveals that these people are systematically tortured during interrogation by Federal Security Service officers and beaten by officers from special units of the Federal Penitentiary Service.

Torture methods include electric shocks, Z-shaped scarifications on the back, burns on the skin of tattooed persons, insertion of needles under the fingernails, simulated drowning and confinement in a cramped metal cupboard. According to the Office of the United Nations High Commissioner for Human Rights, 91% of repatriated Ukrainian non-combatants have been tortured. Ukrainians also suffer abuse in Russian detention centers. The mildest form is to force people to sing the Russian anthem and “patriotic” songs. If they refuse, they are beaten.

During the Russian aggression against Ukraine, international humanitarian law ceased to function as a brake on war crimes. The key factor here is the good faith of states that have undertaken to respect their commitments. The Russian regime is a double violator. It does not respect its commitments to the Russian people, nor does it respect its foreign policy commitments. This regime is not the only one of its kind on the planet. With the rapid development of information technologies and the emergence of new possibilities for massively abusing entire social groups, more and more non-democratic regimes will resort to similar simulacra when it comes to applying the norms of international humanitarian law, in both international and domestic conflicts. The case of the Russian Federation, which has not been stopped by international humanitarian law in its war against Ukraine, is a strong motivation for these regimes.

International organizations are forced to treat the Russian regime as if it were normal, because they have no choice: their policies and procedures were designed for normal partners. But the Putin regime is not normal. It has already overstepped the bounds of morality. For example, a statesman must not lie openly. And if he is caught in a lie, he apologizes and rectifies the situation. Russian officials, including the most senior ones, lie brazenly. And when they are caught in a lie, they maintain that they are right anyway.
Yevgeny Guryanov was arrested at his home in Butcha in March 2022. He is a garage mechanic and his hands, despite the soap, bore the marks of grease. That’s all it took for the occupants to arrest him. When questioned, representatives of the Russian Ministry of Defense claimed that he had been detained “for resisting the special military operation”. Ukrainian human rights activists and his Russian lawyers insisted that Yevgeny, as a civilian, should be released in accordance with international humanitarian law. Then the official Russian responses changed: “We’re not sure about his civilian status, that’s for the court to decide.” There has been no court decision, and there won’t be. Yevgeny has been detained and abused for almost a year and a half, and he is not the only non-combatant in this situation. The exact number of people imprisoned “for opposing the special military operation” is unknown. Expert estimates put the number at around 4,000.

Yevgeny Guryanov with his wife // agents.media

What’s more, staff from international organizations are simply afraid. Some of these organizations are acting as if the Russian regime remains normal. The International Committee of the Red Cross (ICRC) has referred to what the Russians are doing in Ukraine as “internment”. Last October, in a press release entitled “Russia-Ukraine: the ICRC is ready to visit all prisoners of war – but must be granted access”, the ICRC stated that “it still does not enjoy unrestricted and permanent access to all prisoners of war in this international conflict. This is despite the fact that our teams have been insisting for nearly eight months that they be allowed to visit all places of detention and internment.” But internment is subject to a specific procedure. The Geneva Convention relative to the Protection of Civilian Persons in Time of War provides for a regular internment procedure, with the right to appeal. Russia has made no such provision. Non-combatants have been forcibly deported, which constitutes a war crime. What is the Red Cross’ fear, then, in the way it presents the abnormal as normal? No doubt it fears that the Russian authorities will further reduce its already diminished capacity to come to the aid of civilian POWs and hostages.

What’s needed is a fine-tuning of international humanitarian law, to clarify its norms and reinforce its right of scrutiny over the belligerent parties. The risks and harms for those who violate international humanitarian law should be increased. Otherwise, the rules of war will be increasingly violated, with extremely serious consequences. The means of warfare are becoming increasingly destructive.

Display in Boutcha on the war crimes committed there by the Russians // president.gov.ua

The idea of campaigning to promote the idea of reforming international humanitarian and criminal law arose from the many specific problems encountered by Ukrainian and Russian human rights defenders dealing with prisoners of war and civilians during the Russian aggression. The proposal to set up a working group on the reform of international humanitarian law was first put forward by participants in the Solidarity Talks international human rights defenders debate on November 16, 2022. These online debates are organized by the Center for Civil Liberties (Ukraine) and the International Helsinki Association. In January 2023 a working group was set up to prepare an outline for a reform of international law in the light of the lessons of Russian aggression. It brought together representatives of civil society from Ukraine, Russia and France. Almost all the Russian participants were already living in exile at the time.

We are working on proposals to modify the norms of international humanitarian law. There is a mechanism for making such adjustments. It is provided for in Article 97 of Additional Protocol I to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts, which states that “Any High Contracting Party may propose amendments to the present Protocol. The text of any amendment shall be communicated to the depositary who, after consultation with all the High Contracting Parties and the International Committee of the Red Cross, shall decide whether a conference should be convened to consider the proposed amendment or amendments.”

Protocol I concerns all the Geneva Conventions relating to prisoners, shipwrecked persons, prisoners of war and the protection of civilian persons. Consequently, amendments to the Protocol can cover all these issues. Ukraine, alone or together with other countries, may propose amendments to Protocol I. The Swiss Federal Council is the depositary of the Geneva Conventions. The Federal Department of Foreign Affairs (Eidgenössisches Departement fûr auswärtige Angelegenheiten – EDA) assumes that, in most cases, no specific amendments to international humanitarian law are necessary. However, it is sometimes necessary to clarify declarations in order to adapt the principles of application to new realities.” Russia’s aggression against Ukraine has created a frightening new reality.

But if our ideas for amending international humanitarian law are to become the rule, this reform must have broad support. Neither the Center for Civil Liberties nor any other human rights organization can initiate a reform of international humanitarian law. Only states have the right to do so. This means that voters in different countries must know and understand what is going on, and must exert influence on the elected members of national parliaments.

Mikhail Savva holds a Ph.D. in Political Science and is a member of the expert council at the Center for Civil Liberties, a Ukrainian NGO awarded the Nobel Peace Prize in 2022.

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