Russian-Ukrainian conflict: “do and don't” according to the law of war

(To Avv. Marco Valerio Verni)
10/03/22

The Prosecutor of the International Criminal Court, in one of his statement of last March 21, announced that it will open investigations into possible war crimes committed on Ukrainian soil following the Russian invasion.

This decision was also made possible thanks to the complaint2, at the moment, of 39 States party to the Establishment Treaty of the aforementioned judicial body, sent to the aforementioned (International Prosecutor) by joint letter3.

In reality, this investigation will be very difficult and, probably, will encounter many obstacles of a primarily procedural nature.

Meanwhile, how does the International Criminal Court act?

It is activated in three ways4:

1) resolution of the United Nations Security Council;

2) initiative, in fact, of the Attorney at the same;

3) denunciation of individual states.

In the present case, the first hypothesis was discarded, since, for its effective practicability, it would have been necessary to have the unanimous vote of the permanent member countries of the same Security Council, among which, however, there would be Russia itself (which, clearly, he would have vetoed), the path that is being attempted would be the one resulting from the sum of the two other paths mentioned above.

Expertise

In the present case, theoretically, since neither Russia nor Ukraine acceded to the aforementioned Treaty, establishing the International Criminal Court, the latter could not judge any crimes committed in the related conflict: in practice, however, this possibility, albeit with limitations, it seems to be able to revive since Ukraine, first in 2014 (when it activated the jurisdiction of the International Criminal Court through the special procedure provided for by art. 12 (3) of the relative Statute and by art. 44 of the so-called "Rules of Procedure and Evidence", that a non-member State may, by means of a formal declaration lodged with the Court Registry, accept the competence of the same in relation to the offenses envisaged by art. 5 and cooperate with it without delay and without exception), then in 2015 (when, on date September 8 of that year, the Ukrainian government sent a second statement to the aforementioned court) accepted, in substance, the jurisdiction of the Court in question starting from 20 February 2014 and without a final time limit.

Any possible crime to investigate

The first of them could have been, of course, that of aggression, provided for by art. 8 bis of the aforementioned (Treaty), introduced in Kampala in 2010, according to which:

1. For the purposes of this Statute, 'a crime of aggression' means the planning, preparation, initiation or execution by a person capable of effectively exercising control or directing political action or military action of a State, of an act of aggression which by nature, gravity and scope constitutes a manifest violation of the Charter of the United Nations of June 26, 1945.

2. For the purposes of paragraph 1, 'an act of aggression' means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other way contrary to the Charter of the United Nations. Regardless of the existence of a declaration of war, in accordance with United Nations General Assembly Resolution 3314 (XXIX) of December 14, 1974, the following acts are acts of aggression:

a) the invasion or attack by the armed forces of a State of the territory of another State or any military occupation, even temporary, resulting from said invasion or attack or any annexation, through the use of force, of the territory of another State or part of it;

b) bombing by the armed forces of a State against the territory of another State or the use of any other weapon by a State against the territory of another State;

c) the blocking of ports or coasts of one State by the armed forces of another State;

d) the attack by the armed forces of a State against the land, naval or air armed forces of another State or against its naval or air fleet;

e) the use of the armed forces of a State which are in the territory of another State with the agreement of the latter, in violation of the conditions established in the agreement, or any extension of their presence in that territory after the term of the agreement;

f) the fact that a State allows its territory, made available to another State, to be used by the latter to commit an act of aggression against a third State;

g) the sending by a State, or in its name, of bands, groups, irregular forces or armed mercenaries that carry out acts of armed force against another State of such gravity as to be comparable to the above-mentioned acts or that participate in substantive way to said acts".

Well, generally speaking, based on art. 12 of the Rome Statute, jurisdiction over presumed perpetrators of crimes within the jurisdiction of the Court is exercised on the basis of two criteria, among them alternative: or that territorial (acceptance of the jurisdiction of the court by the State on whose territory the alleged crime was committed) or that national (acceptance of the jurisdiction of the Court by the State of nationality of the alleged perpetrator).

For the crime of aggression, however, again in 2010, the United States wanted to add a condition, regarding its admissibility, namely that of further consent of the national state of the suspect responsible: which, in this case, would be that of the Russian Federation and, therefore, highly unlikely if not impossible to obtain.

This unlike the other three crimes provided for by art. 5 of the Statute of the International Criminal Court, on which, instead, full-range investigations may be carried out and which, specifically, are:

  1. crime of genocide5;

  2. crimes against humanity6;

  3. war crimes7.

More specifically, then, the crimes relating to the international humanitarian law, also called the law of armed conflict or the law of war (ius in beautiful): according to the latter, which constitutes a branch of international law (which would instead evaluate the "ius ad bellum"), in conducting hostilities, certain rules and different principles must, or should be respected, in the absence of which there would be crimes punishable by the international community (by the State of origin of the person who committed them, by other States , according to the principle of universal jurisdiction, or by the International Criminal Court itself by invocation, according to the other principle - called complementarity - of the "aut dedere aut iudicare")

Well, taking a cue from some news released by the press, it can be said that:

  1. as to the civilian population8, it cannot be the object of military actions, provided, however, that it does not participate in hostilities: consequently, to give a practical example, the person who, hiding a bomb under his coat molotov cocktail, were to then launch it at an enemy tank, he could, on the one hand, incur a violation of the right of war, on the other, and therefore himself, expose himself to the risk of being able - at that point legitimately - to become a target and, in case of capture, not be safeguarded by the specific rules provided in this regard by the Geneva Conventions.

The situation would be different if the aforementioned population were organized in resistance bodies hierarchically structured: in that case, if the relative members comply with the requirements of membership, visibility and respect for international humanitarian law, they will then be considered real legitimate fighters, with all the (positive) consequences of the case.

  1. As for weaponry in general, and to those, in particular, thermobaric ones9, which was also alleged to have been used by one of the parties involved, it must be said that, generally speaking, the use of means and methods of warfare capable of causing superfluous evils or unnecessary suffering is certainly prohibited. Basically, those weapons that can cause what has just been reported are prohibited, and in this context, again with reference to the concrete example, thermobaric weapons, whose explosion, the relative shock wave can last much longer than a conventional explosive and being able to vaporize human bodies.

  2. Regarding the use of the cd drones10, they are now widely used, both for purposes of recognition and acquisition of targets and, if necessary, for real "combat" operations.

Well, the principles to be taken into consideration are the same for classic weapons: only military targets can be hit, and not civilian goods.

In the case of actions against individuals ("targeted killings"), side effects must be avoided, that is, mainly, the killing of civilians, even accidental. It could be admitted only if, in practice, the military advantage obtained from hitting the main (military) target was so important and necessary that it would be possible to accept any civilian losses, in fact, which would still have to be kept to a minimum.

  1. As to the protection and safeguarding of Cultural heritage11, they, in general, enjoy an "ad hoc" protection, guaranteed by the 1954 Convention and by some norms of customary law, therefore valid for everyone.

In military operations, therefore, it is necessary that the forces in the field work to avoid damage to religious monuments, of art, science, education or charity and to historical monuments, unless they are a military objective (because they are used, perhaps, by the enemy army or by resistance movements or by the civilian population itself - which would therefore violate, in turn, the same international humanitarian law - as a "basis" for war operations) and, if of great importance for the cultural heritage of peoples, however, must not be the object of attack except for imperative military necessity.

The occupying power, moreover, is required to prevent the illegal export of cultural goods from the occupied territory and must ensure that those illegally exported are returned to the competent authorities of the occupied territory.

  1. As for theattack on power plants12 and radio and television stations, it must be said that, among the military objectives, there are also “dual use” goods, ie those which, although intended for use by the civilian population, can support the war effort of the enemy.

Among them, oil depots, ports and airports, radio and television stations, telephone exchanges, electricity production plants, communication and transport routes must certainly be included. Provided, however, that their damage or destruction is not aimed at the mere starvation of the civilian population.

  1. Lastly, but having certainly not exhausted the copious list of situations that could happen or that have already occurred in the war, comment, a nod must be made to the important humanitarian and rescue corridors: to this end, it must be remembered that the parties to the conflict must authorize and facilitate the rapid and free passage of humanitarian aid for the civilian population, while the latter, for their part, must be impartial and conducted without distinction; they may be subject to control, but their personnel must be guaranteed freedom of movement which may, on the contrary, be temporarily limited only in case of imperative military necessity.

From what has been said, it is clear that, beyond the political aspects, there are also the juridical ones that, in a neutral way, concern, or should concern, all the parties involved, without partisanship: because, otherwise, it could only to recall the question that St. Augustine asked, according to which “If justice is not respected, what are the States if not of great bands of thieves? "

And, of course, the question would be valid, just in case, erga omnes.

  

4 Article 13 of the Statute of the International Criminal Court, Conditions of admissibility"The Court may exercise its jurisdiction over one of the crimes referred to in Article 5, in accordance with the provisions of this Statute, if:

a State Party, in accordance with article 14, reports to the Prosecutor a situation in which one or more of such crimes appear to have been committed;

the Security Council, in the context of the actions envisaged by Chapter VII of the Charter of the United Nations, reports to the Prosecutor a situation in which one or more of these crimes appear to have been committed; or

the Prosecutor has opened an investigation into one or more of these crimes, pursuant to Article 15".

5 Article 6 of the ICC Statute, Crime of genocide"For the purposes of this Statute, a crime of genocide means one of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, and more precisely:
  • killing group members;

  • cause serious injury to the physical or mental integrity of persons belonging to the group;

  • deliberately subjecting persons belonging to the group to living conditions such as to involve the physical destruction, total or partial, of the group itself;

  • impose measures to prevent births within the group;

  • forcibly transferring children belonging to the group to a different group".

6 Article 7 of the ICC Statute, Crimes against humanity"For the purposes of this Statute, a crime against humanity means one of the acts listed below, if committed in the context of an extensive or systematic attack against civilian populations, and with awareness of the attack:
  • Homocide;

  • Extermination;

  • Reduction into slavery;

  • Deportation or forced transfer of the population;

  • Imprisonment or other serious forms of deprivation of personal liberty in violation of fundamental rules of international law;

  • Torture;

  • Rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization and other forms of sexual violence of similar gravity;

  • Persecution against a group or a community with its own identity, inspired by political, racial, national, ethnic, cultural, religious or sexual reasons within the meaning of paragraph 3, or by other reasons universally recognized as not permissible under the international law, related to acts provided for by the provisions of this paragraph or to crimes within the jurisdiction of the Court;

  • Forced disappearance of people;

  • Apartheid;

  • Other inhuman acts of a similar character intended to intentionally cause great suffering or serious damage to physical integrity or physical or mental health.

For the purposes of paragraph 1:

"Direct attack against civilian populations" is understood to be conducts that involve the repeated commission of any of the acts provided for in paragraph 1 against civilian populations, in implementation or in execution of the political design of a State or an organization, aimed at carrying out the attack ;

by "extermination" is meant, in particular, intentionally subjecting people to living conditions aimed at causing the destruction of part of the population, such as preventing access to food and medicine;

"Reduction into slavery" means the exercise on a person of one or all of the powers inherent in the right to property, including in the course of trafficking in persons, in particular of women and children for the purpose of sexual exploitation;

by "deportation or forced transfer of the population" means the removal of persons, by means of expulsion or other coercive means, from the region in which they are legitimately located, in the absence of a reason foreseen by international law that allows it;

"torture" means the intentional infliction of severe pain or suffering, physical or mental, on a person over whom one has custody or control; this term does not include pain or suffering deriving exclusively from legitimate sanctions, which are inseparably connected to such sanctions or incidentally occasioned by them;

"Forced pregnancy" means the unlawful detention of a woman forcibly made pregnant with the intent to change the ethnic composition of a population or to commit other serious violations of international law. This definition cannot in any way be interpreted in such a way as to prejudice the application of national laws on termination of pregnancy;

by "persecution" is meant the intentional and grave deprivation of fundamental rights. in violation of international law, for reasons connected with the identity of the group or community;

"apartheid" means inhuman acts of a similar character to those indicated in the provisions of paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over another or other racial groups, and to perpetuate this regime;

"Forced disappearance of persons" means the arrest, detention or abduction of persons by or with the authorization, support or acquiescence of a state or political organization, which subsequently refuses to recognize the deprivation freedom or to give information on the fate of such persons or on the place where they are, with the aim of removing them from the protection of the law for a prolonged period of time.

For the purposes of this Statute, the term "sexual gender" refers to the two sexes, male and female, in the social context. This term does not imply any other meaning than the one mentioned above".

7 Article 8 of the ICC Statute, War crimes"The Court has jurisdiction to judge war crimes, particularly when committed as part of a political plan or design, or as part of a series of similar large-scale crimes.

For the purposes of the Statute, "war crimes" are:

serious violations of the Geneva Convention of 12 August 1949, namely one of the following acts against persons or property protected by the rules of the Geneva Conventions:

voluntary homicide;

torture or inhuman treatment, including biological experiments;

voluntarily cause great suffering or serious injury to physical integrity or health;

destruction and appropriation of goods, not justified by military necessities and carried out on a large scale illegally and arbitrarily;

forcing a prisoner of war or other protected person to serve in the armed forces of an enemy power;

voluntarily depriving a prisoner of war or other protected person of his or her right to a fair and due process;

illegal deportation, transfer or detention;

hostage-taking.

Other serious violations of applicable laws and customs, within the consolidated framework of international law, in international armed conflicts, namely one of the following acts:

deliberately directing attacks against civilian populations as such or against civilians not directly participating in hostilities;

deliberately directing attacks on civilian property, that is, property that is not military targets; .

deliberately directing attacks against personnel, physical installations, units or vehicles used in the context of a humanitarian relief or peacekeeping mission in accordance with the United Nations Charter, to the extent that they are entitled to the protection afforded to civilians and civil property under international law of armed conflict;

deliberately launch attacks in the knowledge that they will result in the loss of human life among the civilian population, and injuries to civilians or damage to civil property or widespread, lasting and serious damage to the natural environment that is manifestly excessive compared to all the concrete and direct military advantages foreseen;

attack or bomb by any means, cities, villages, homes or buildings that are not defended and that do not constitute military objectives;

killing or injuring combatants who, having laid down their weapons or having no other means of defense, have surrendered unconditionally;

misuse the white flag, military flag or insignia and uniform of the enemy or the United Nations as well as the distinctive emblems of the Geneva Convention, thereby causing loss of life or serious personal injury;

the direct or indirect transfer by the occupying power of part of its civilian population to the occupied territories or the deportation or transfer of all or part of the population of the occupied territory inside or outside that territory;

intentionally direct attacks on buildings dedicated to worship, education, art, science or humanitarian purposes, historical monuments, hospitals and places where the sick and wounded are gathered, provided that such buildings are not used for military purposes;

subject those who are in the power of the enemy to physical mutilation or to medical or scientific experiments of any kind, not justified by medical treatments of the people involved or carried out; their interests, which cause the death of such persons or seriously damage their health;

treasonably killing or injuring individuals belonging to the enemy nation or army;

declare that no one will have their lives saved;

destroy or confiscate enemy property, unless confiscation or destruction is imperatively required by the necessities of war;

to declare the rights and actions of the citizens of the enemy nation abolished, suspended or inadmissible in court;

to force the citizens of the enemy nation, even if in the service of the belligerent before the start of the war, to take part in war operations directed against their own country;

to plunder cities or localities, even if taken by assault;

use poison or poisonous weapons;

use asphyxiating, toxic or other similar gases and all similar liquids, materials and tools;

use bullets that expand or flatten easily within the human body, such as bullets with a hard shell that does not fully cover the core or slotted holes;

use weapons, projectiles, materials and methods of combat with characteristics that cause unnecessary injury or unnecessary suffering, or which by their nature strike indiscriminately in violation of international law of armed conflict provided that such means are subject to a prohibition of generalized use and fall within those listed in an annex to the annex to this Statute, by means of an amendment adopted in accordance with the relevant provisions contained in articles 121 and 123.

violate the dignity of the person, in particular by using humiliating and degrading treatments;

rape, reduce into sexual slavery, force into prostitution or pregnancy, impose sterilization and commit any other form of sexual violence constituting a serious violation of the Geneva Conventions;

use the presence of a civilian or other protected person to prevent certain sites, areas or military forces from becoming the target of military operations;

intentionally directing attacks on buildings, materials, personnel and medical transport units which use, in accordance with international law, the distinctive emblems provided for by the Geneva Conventions;

intentionally starving civilians, as a method of war, by depriving them of the goods essential to their survival, and in particular voluntarily preventing the arrival of the aid provided for by the Geneva Conventions;

recruit or enlist children under the age of fifteen into the national armed forces or have them actively participate in hostilities;

In the event of an armed conflict not of an international nature, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely one of the acts listed below, committed against those who do not participate directly in hostilities, including members of the Armed Forces who have laid down their arms and those who are unable to fight due to illness, injury, detention or any other cause:

Acts of violence against the life and integrity of the person, in particular all forms of murder, mutilation, cruel treatment and torture;

violate personal dignity, in particular humiliating and degrading treatment;

take hostages;

to issue sentences and execute them without prior judgment, carried out before a duly constituted court that offers all judicial guarantees generally recognized as indispensable.

Paragraph c) of paragraph 2 applies to armed conflicts not of an international character and therefore does not apply to internal situations of disorder and tension such as riots or sporadic or isolated acts of violence of a similar nature.

Other serious violations of applicable laws and customs, within the consolidated framework of international law, in armed conflicts not of an international character, namely one of the following :.

deliberately directing attacks against civilian populations as such or against civilians who do not take direct part in hostilities;

intentionally directing attacks on physical buildings, personnel and medical units and means of transport, which use the distinctive emblems provided for by the Geneva Conventions in accordance with international law;

deliberately directing attacks against personnel, installations, equipment, units or vehicles used in the context of a humanitarian relief or peacekeeping mission in accordance with the United Nations Court, to the extent that they are entitled to the protection afforded to civilians and to the civil property provided for by the international law of armed conflicts;

intentionally direct attacks against buildings dedicated to worship, education, art, science or humanitarian purposes, historical monuments, hospitals and places where the sick and wounded are gathered provided that such buildings are not used for military purposes;

pillage cities or localities, even if taken by storm

rape, reduce into sexual slavery, force into prostitution or pregnancy, impose sterilization and commit any other form of sexual violence constituting a serious violation of the Geneva Conventions;

recruit or enlist children under the age of fifteen into the national armed forces or have them actively participate in hostilities;

arrange for a different displacement of the civilian population for reasons related to the conflict, if the safety of the civilians involved or mandatory military reasons do not require it;

treacherously killing or injuring an opposing fighter;

declare that no one will have their lives saved

subject those in the power of the adversary to physical mutilation or to medical or scientific experiments of any kind, not justified by medical treatment of the persons concerned or carried out in their interest, which cause the death of such persons or seriously damage their health ,

destroy or confiscate the opponent's property, unless confiscation or destruction is imperatively required by the needs of the conflict;

D paragraph e) of paragraph 2 applies to armed conflicts not of an international character and therefore does not apply to situations of internal tension and disorder, such as isolated and sporadic riots or acts of violence and other similar acts. It applies to armed conflicts that occur in the territory of a State where a prolonged armed conflict takes place between government armed forces and organized armed groups, or between such groups.

Nothing contained in the provisions of paragraph 2, paragraphs c) and d) may affect the responsibilities of governments to maintain or restore public order within the State or to defend the unity and territorial integrity of the State with any legitimate means".