Images of death and destruction in Ukraine are horrific. But the evidence that Russian forces may be systematically violating the rules of war makes an already tragic conflict that much more devastating — and may make it harder to end the fighting.
For nearly two centuries, the international community has tried to balance effective warfighting with preserving human rights during conflict. How are these efforts working — or not — in Ukraine? Here’s what you need to know about the rules of war and about the allegations of Russian war crimes in Ukraine.
What are the rules of war?
Known more formally as the Law of Armed Conflict or International Humanitarian Law (IHL), these rules delineate how countries fight wars, and try to balance the military goal of weakening the enemy with respect for human dignity. The rules of war, developed through various treaties and agreements since the first Geneva Convention in 1864, are about how war is conducted, not about the legality of a specific war, which is covered under a separate body of law embodied in the U.N. Charter.
The ICJ ordered Russia to halt military operations in Ukraine. What comes next?
The rules of war protect noncombatants and also limit the types of weapons and tactics armed forces can utilize. Deliberately targeting civilians and civilian buildings, for instance, is forbidden. Soldiers no longer actively fighting — such as the wounded and prisoners of war — are also protected. Furthermore, armed forces cannot use specific weapons that are indiscriminate in nature, such as cluster bombs and chemical weapons. Inhumane tactics including denial of quarter, starvation, pillage and perfidy are also banned.
How does the military apply the rules of war?
The rules of war are universal. Governments are responsible for training their soldiers to conduct themselves in the field accordingly. Everyone from the generals planning and leading the war down to the enlisted soldiers fighting on the front lines is supposed to act with three principles in mind: distinction, proportionality and precaution.
Here’s what this means. The principle of distinction requires parties to armed conflict to distinguish between combatants and civilians, and between civilian objects (homes, schools, hospitals) and military objectives. And military operations must explicitly focus on military objectives. The principle of proportionality prohibits military operations that excessively harm civilians, in cases when those operations are without significant military advantage. Finally, the principle of precaution specifies that combatants must take all due care to spare civilians and civilian objects from harm, and minimize collateral damage.
Is there a difference between ‘defensive’ and ‘offensive’ weapons?
So, what exactly is a war crime?
Serious and persistent violations of the laws of war may be considered a war crime. Deliberate targeting of civilians or civilian objects is a war crime, according to the law and the International Committee of the Red Cross, the guardian of the law. Pillaging, hostage taking, the destruction of cultural and religious objects not germane to military objectives are all war crimes. Inhumane treatment and torture are war crimes, as are rape and sexual violence.
But war crimes are isolated acts committed by soldiers during armed conflict. That’s different from a crime against humanity or genocide. Crimes against humanity are systemic acts to further a country’s policy. Genocide is a specific act to destroy “in whole or in part a national, ethnic, racial or religious group.” Genocide and crimes against humanity can occur in times of war or peace, while war crimes can be committed only during war.
Who enforces the rules of war?
The countries participating in the conflict uphold the rules of war, and militaries involved in war are supposed to enforce the rules of war within their ranks. The rules of war assign responsibility to individuals, not groups. For that reason, a soldier cannot claim that they were just following orders to evade responsibility for a war crime. Even if they were ordered to commit said crimes, the soldier that committed the crime, as well as those that ordered and sanctioned it, are all guilty of war crimes.
Historically, the international community set up ad hoc criminal tribunals to investigate war crimes following conflict. This happened after World War II, as well as following armed conflict in Yugoslavia and in Rwanda in the 1990s. In 2002, a permanent court called the International Criminal Court (ICC) was established to investigate and prosecute war crimes.
If a country is a signatory to the court, the court has jurisdiction. Russia is not a signatory to the ICC, but Ukraine has explicitly stated that it accepts the jurisdiction of the ICC for crimes committed on Ukrainian territory. On Feb. 28, ICC prosecutor Karim Khan announced that his office would investigate the situation in Ukraine.
How are war crimes investigated?
Investigating alleged war crimes, crimes against humanity and genocide is a painstaking and difficult process. In Ukraine, where the ICC has determined it has legal jurisdiction, teams of investigators have been deployed to assess the situation. But the ICC won’t be the only organization on the ground. Collection efforts will include many countries and nongovernmental organizations seeking to piece together the puzzle as quickly as possible despite the chaos of a war zone.
It’s not always easy to determine if one side deliberately targeted civilians and civilian objects, for instance — or whether war-related devastation is the result of unintended collateral damage. The rules of war allow for far more unintended damage than most people realize. War crimes investigators will collect as much evidence as possible, but the job is inherently more complicated than in peacetime.
During armed conflict, crime scenes rarely remain undisturbed, and victims and witnesses alike are often displaced because of the conflict. Tracing and locating them is a critical challenge. Investigators will interview eyewitnesses and they will seek video and photo evidence. Where possible they will try to trace communications and obtain the relevant satellite imagery. Ultimately, many overlapping and patchworked investigations will be pieced together to attempt to make the case that Russian forces repeatedly violated the laws of war in Ukraine.
The rules of war aim to humanize war. But they also leave much gray area for military operations and interpretation — and, in the end, room for much injustice.
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Michael John Williams (@theopenmike) is associate professor of public administration and international affairs at the Maxwell School of Citizenship and Public Affairs at Syracuse University and co-author of “Law, Science, Liberalism, and the American Way of Warfare” (Cambridge University Press, 2015).