Attacks continue in Eastern Ukraine despite a ceasefire agreement. Amnesty International (AI) has called some of the latest attacks violations of international humanitarian law. AI and Human Rights Watch (HRW) have previously documented that rebels with support from Russia and Ukrainian armed forces both have likely violated the laws of war in fighting in that area.
These reports are serious and disturbing developments in a war that is already objectionable because of Russia likely has troops in Eastern Ukraine according to NATO and AI, and the killing of innocent civilians. Western officials are correct tocondemn Russia’s alleged violations of the prohibition to use force in international relations.The rebels’ alleged jus in belloviolations are additionally reprehensible. Western leaders are correct topressurethem to end the fighting. But they should also carefully address Ukraine’s alleged violations of the rules of war.
Ukraine, like all countries, has a responsibility not to commit war crimes (as well as genocide, crimes again humanity, and ethnic cleansing), according to the norm of the responsibility to protect (R2P) that countries unanimously approved in 2005 in the World Summit Outcome Document.
That rebels with Russian support likely committed war crimes, and that Russia allegedly violated the UN Charter, does not degrade the responsibilities of Ukrainian armed forces or leaders, under R2P. Nor do past violations have any impact on a state’s ongoing responsibilities. At every moment, a state has a responsibility to not commit war crimes (and other mass atrocities). By allegedly using Grad rockets in areas populated by civilians, Ukraine may have violated its R2P because such weapons may be too indiscriminate to use permissibly in areas densely populated by civilians.
Under R2P, the international community also has ongoing responsibilities. According to an influential 2009 reportby the UN Secretary General, when a state fails to uphold its R2P, the international community should assist (Pillar II) and if need be coerce (Pillar III) the state and other actors into fulfilling their responsibilities. The international community, in other words, has a responsibility to take steps to encourage Ukraine to refrain from committing war crimes or any other mass atrocity.
Assigning responsibility to the international community under R2P may sometimes be difficult because the international community is a vague notion. It nonetheless surely includes Western and Eastern European countries in this situation. In order to achieve the goal of encouraging Ukraine to refrain from committing war crimes, European leaders should continue to make political and military support and aid conditional on Ukraine’s adherence to international law and R2P. European leaders should take, or refrain from, action if doing so would have some reasonable chance of successfully improving the prospects of either or both sides adhering to the international rules of war.
The international community can make experts on the laws of war available to all sides of the conflict. They should in particular advise Ukraine to refrain from using indiscriminate weapons in areas populated by civilians, given alleged recent incidents. The international community could also consider imposing sanctions on leaders if they do not take concrete steps to prevent violating the rules of war and failing to prosecute those potentially responsible for past violations. The West has already imposed sanctions on powerful Russians.
Although Russia and Ukraine are both members of the Council of Europe and Organization for Security and Co-operation in Europe, there is a wide gap between Russia and other European countries on Ukraine. Unlike other situations where Western nations may have limited influence over states who likely violated international laws – such as with the governments of North Korea or Syria – the international community, and in particular European leaders, may be able to influence the Ukrainian government because of their relative power vis-à-vis Ukraine, and Ukrainian leaders’ political goals. Western leaders should make clear that their continued support for Ukraine depends on the Ukrainian government refraining from committing war crimes or other mass atrocities. (Of course, Russia should also not violate international humanitarian law.) They should furthermore demand that those who may have violated the rules of war be investigated and tried for their alleged crimes.
International actors should encourage Ukraine’s government to ratify the Rome Statute of the International Criminal Court (ICC) because this would indicate a more credible commitment, than just mere assurances, not to commit war crimes. Although Ukraine is not a member of the ICC, it has accepted ICC jurisdiction from 21 November 2013 to 22 February 2014 by virtue of a special declaration. As a matter of policy, the ICC’s prosecutor opened a preliminary investigation into possible international crimes committed in Ukraine. The problem with the limited jurisdiction thus conferred on the ICC is that it does not cover the whole period of fighting. For instance, the abuses documented by the human rights organizations mentioned above fall outside the limited temporal jurisdiction that the ICC now has. Ratifying the Rome Statute would signal Ukraine’s commitment to comply with it, unreservedly and on a permanent basis. (The Ukrainian government could also backdate the ICC’s jurisdiction anytime on or after 1 July 2002).
Ukraine’s leaders would have an added incentive to ratify the Rome Statute, and backdate the start date of its jurisdiction, because it would allow the ICC to prosecute Russians and any other foreign nationals who are suspected of committing war crimes (or other core crimes) on Ukraine’s territory if states are unwilling or unable to do so. Although this would be politically improbable, Ukraine would not need to sacrifice any of its sovereignty if it tried its own nationals for any possible violations of the Rome Statute.
One concern of this strategy is that it would play into Russian President Putin’s narrative for the need to intervene in Ukraine, in particular the protection of civilians. I think this objection is weak for several reasons. First, I believe that if Russia were truly interested in protecting civilians, it would be much more likely to achieve its goal by pressuring rebels to lay down their arms and negotiating peacefully than by supporting them militarily because the Ukrainians would then have no justification for fighting. Second, the international community’s encouragements to Ukraine could be made privately by representatives of the relevant European governments. Finally, avoiding bolstering such a narrative is one more reason Ukraine should be keen to fight according to international humanitarian law.
In order to minimize harm to innocents in conflict zones, the Ukrainian government and the international community should take steps they have already accepted under R2P to protect civilians.