Russian Violations of IHL: The ICC is Not the Complete Answer

[Melanie O’Brien, Associate Professor of International Law, University of Western Australia, is an award-winning IHL teacher and President of the International Association of Genocide Scholars.]

Following the news from Ukraine, the list of violations of international humanitarian law (IHL) being reportedly committed by Russia is like a checklist through the rules of IHL, particularly the First Protocol Additional to the Geneva Conventions (API) (which Ukraine and Russia are both party to) and customary international law (CIL) rules.

There has been much discussion and support for the International Criminal Court’s (ICC) quick involvement in investigating potential war crimes. However, the ICC is not going to be able to offer comprehensive accountability for all the violations of IHL – simply because the Rome Statute’s substantive law under Article 8 only covers a portion of IHL. This post examines briefly what the ICC can prosecute, and then undertakes an in-depth examination of the challenges the limitations of Article 8 of the Rome Statute (RS) will present with regards to the Ukraine-Russia conflict.

IHL Violations the ICC Can Prosecute

There are a number of IHL violations that are found in the Rome Statute, and thus can be prosecuted in the ICC:

• Articles 8(2)(b)(i) and (iv), attacking civilians (including journalists) and launching attacks knowing the attack will cause loss of life or injury to civilians: this could be applied to the extensive intentional attacks on civilians, resulting in civilian deaths, including the attack on journalists trying to flee shooting, resulting in the death of journalist Brent Renaud. Attacking civilians and indiscriminate attacks are grave breaches of API (Article 85).
• Articles 8(2)(a)(iv), and 8(2)(b)(ii) and (iv), destruction of property not justified by military necessity, attacking civilian objects (including airports) and launching attacks knowing the attack will cause damage to civilian objects: this would be applicable to the widespread attacking of civilian objects, including residential buildings, city squares, and airports (which may or may not be dual use targets, but at least some are civilian airports).
• Article 8(2)(b)(ix), attacking cultural property, schools & hospitals: this would apply to myriad attacks throughout Ukraine, including an attack on a Holocaust memorial site (cultural property), many schools, and the at least 26 attacks on hospitals and other health facilities, resulting in injuries and deaths to civilians. Attacking cultural property is a grave breach of API (Article 85).
• Articles 8(2)(a)(vii) and (viii), unlawful confinement and taking hostages: this could be applied to the kidnapping of Meritopol mayor, Ivan Fyodorov. Unlawful confinement would certainly apply, although whether or not the situation would amount to hostage taking would have to be assessed, as hostage taking requires that the perpetrator threaten to kill the hostage to compel others (such as a state) to act or refrain from acting as a condition of the safety or release of the hostage. Current public information does not indicate Fyodorov is being used as a hostage.
• Article 8(2)(b)(xxv), starvation, including through wilfully impeding relief supplies: this could be applicable to the conditions in cities such as Mariupol, where Russian shelling is preventing the delivery of humanitarian aid and citizens remain trapped, unable to access food, water and medication.

IHL Violations the ICC Cannot Prosecute

Works or Installations with Dangerous Forces

Russia attacked and subsequently occupied the Zaporizhzhia Nuclear Power Plant. Attacking works and installations with dangerous forces – specifically including ‘nuclear electrical generating stations’ – in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilians is prohibited under Article 56 of API and CIL rule 42. This is a significant rule of IHL because the reason for the prohibition on attacking works and installations containing dangerous forces is that attacking such works/installations contains a high risk of severe incidental losses, including civilian injury and death and environmental damage. This is why this is a specific rule, separate from the general rule protecting civilian objects. The Rome Statute does not contain an equivalent provision. As noted above, the Rome Statute does provide for accountability for attacking civilians objects, which could be used to prosecute a crime of attacking a nuclear power station. However firstly, the power station may not be a civilian power station, rendering it a prima facie military objective but an attack still needing to be assessed under API Article 56. If it were not a civilian power plant, it would not fall under RS Article 8(2)(b)(ii). Secondly, even if it were a civilian power station, charging under Article 8(2)(b)(ii) does not capture the entirety of the prohibition of attacking works with dangerous forces, which has a distinct separate element beyond just attacking civilians objects. Thus this charge would not fully capture the seriousness of the conduct of attacking a nuclear power station, which is in fact considered a grave breach of API (Article 85).

Prohibited Weapons

There have been multiple reports of the use of or possible use of weapons such as cluster munitions, thermobaric weapons and inaccurate ballistic missiles. The prohibition on weapons that cause unnecessary suffering, superfluous injury or are indiscriminate are embedded in IHL, including API Articles 51 and 35, and CIL rules 12 and 70. Cluster munitions are prohibited under the Cluster Munitions Convention, but neither Ukraine nor Russia are parties to that treaty. However, cluster munitions fall under the category of indiscriminate weapons, because they distribute small submunitions over a large area in an uncontrolled way. They could also be argued to be weapons that cause superfluous injury. Inaccurate ballistic missiles also fall within the category of indiscriminate weapons, as they cannot be accurately targeted to military objectives.

Thermobaric weapons are a bit more complex under IHL. They are not expressly prohibited under a specific treaty, however, there are some options under which they could be argued to fall. Because thermobaric weapons function as an explosive charge, burning fuel, they could be argued to be incendiary weapons, and could fall under the Third Protocol of the Convention on Conventional Weapons, the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Russia and Ukraine are both parties). Under Article 1 of the Third Protocol, incendiary weapons are “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target”. Due to the dispersal of toxic fuel throughout the air and into spaces, thermobaric weapons could also be argued to be chemical weapons, falling under the prohibitions in the Chemical Weapons Convention (Russia and Ukraine are both parties). Should those arguments fail, however, it can certainly be argued that thermobaric weapons are weapons that cause unnecessary suffering. They are known as ‘vacuum weapons’ because they cause an explosion that sucks the air in. The impact on humans is the collapse of body parts such as lungs, bowels and ears, and they affect the nervous system, but the explosion does not impact the brain, leaving victims conscious before death.

Thus, we have three types of weapons that fall into the categories of weapons that cause unnecessary suffering, superfluous injury and/or are indiscriminate. Here is the text of Article 8(2)(b)(xx) of the Rome Statute:

Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123.

This provision refers to those weapons that “cause superfluous injury or unnecessary suffering or which are inherently indiscriminate”. However – and it is a big HOWEVER – the provision requires that such weapons be the subject of a comprehensive prohibition AND be included in an annex to the RS. This leaves us with two conditions to satisfy to be able to prosecute someone for use of such weapons. I will begin with the second condition, as this barrier renders the provision inoperable. The annex of weapons has not yet been created. Therefore, by default, this provision of the RS cannot be employed by the Prosecutor to hold someone accountable for using indiscriminate weapons or weapons that cause unnecessary suffering. This is a significant gap in application of the RS, given that these are fundamental violations of IHL. The first condition, namely that the weapons also be the subject of a comprehensive prohibition, deserves discussion as to its meaning but that can be saved for elsewhere, as it is irrelevant anyway (although it can be briefly said that thermobaric weapons may be difficult to fit into that category, not being listed in any treaty or being prohibited in a dedicated treaty; but cluster munitions would likely fit given the existence of the Cluster Munitions Treaty).

In addition, if it were to be argued that thermobaric weapons amount to chemical weapons, this would not render the ICC able to prosecute, because there is no provision in the RS outlawing the use of chemical weapons. This category of weapon was specifically excluded from the RS. Nor is the use of incendiary weapons specifically prohibited under the RS. In fact, the list of prohibited weapons under the RS is extremely limited, covering only poison/poisoned weapons, gases, and expanding bullets.

In its first iteration in 1998, the RS inadequately prohibited use of weapons that are prohibited under IHL (other examples include landmines, nuclear weapons, and biological weapons). It was not until amendments were made in 2017 that additional provisions were inserted prohibiting biological or microbial agents or toxins, use of weapons that escape detection by X-rays in the body, and laser weapons (Articles 2(b)(xxvii), (xxviii) and (xxix)). However, amendments to Article 8 only enter into force “for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance” (Article 121(5)), and few states have ratified these weapons amendments. The Rome Statute still does not prohibit chemical weapons, incendiary weapons, landmines or nuclear weapons. This means that even with these amendments, and with the inapplicability of Article 8(2)(b)(xx), the ICC is a poor option as a forum for accountability of weapons IHL violations.

Attacking Humanitarian Corridors

Despite agreed ceasefires to allow civilians to safely flee cities such as Mariupol through a humanitarian corridor, Russia has been attacking civilians trying to flee through these humanitarian corridors and has been preventing humanitarian aid from entering those cities. Kenneth Chan Yoon Onn has already argued that these corridors qualify under IHL as DMZs, falling under IHL protection in Article 60 of API and CIL rule 36. In addition, such conduct also violates the rule providing for safe access for humanitarian relief for civilians in need (GCIV Art 23, API Art 70(2), CIL rule 55), and freedom of movement of humanitarian relief personnel (Article 71 API, CIL rule 56). Article 85 of API deems attacking DMZs a grave breach of API.

Turning to the RS, there is no specific provision prohibiting the attack of DMZs. There is a provision (Article 8(2)(b)(iii)) prohibiting attacks on against personnel and material (etc) involved in humanitarian assistance, however this only applies to those involved in a humanitarian assistance mission in accordance with the Charter of the United Nations, thus only providing protection to UN mandated missions and inapplicable to the Ukrainian conflict.

The attack on humanitarian corridors could be prosecuted under the Rome Statute offence of directing attacks against the civilian population (Article 8(2)(b)(i)), but again, this would not fully capture the conduct in question, which is violating the sanctity of a specially created non-military zone.

Legal Advisors

Under IHL, it is required that militaries use legal advisors to ensure decisions are in conformity with IHL. While there is no evidence that Russia that is not using legal advisors, given the widespread nature of the commission of war crimes, it could be surmised that a legal advisor is not being consulted by the Russians. If so, this would violate Article 82 of API and CIL rule 141. However, there is no equivalent provision under the Rome Statute.

IHL Violations Need Comprehensive Accountability Solutions

Assessing the ICC substantive provisions in light of the alleged IHL violations being committed by Russia in Ukraine reveals gaps in the ICC’s ability to deliver accountability for war crimes. The gaps in the substantive provisions of the Rome Statute are not minor: they deal with significant violations of IHL, conduct that causes serious impact on civilians, civilian objects, infrastructure and potentially the environment. It is also conduct that is singled out for prohibition under IHL because of its high risk to civilians or its extreme impact on civilians. It may be time for the Assembly of States Parties to revise the war crimes provisions of the Rome Statute to make Article 8 more comprehensive and more reflective of IHL. A starting point would be to complete the task discussed at the creation of the Rome Statute: create the annex of weapons required for Article 8(2)(b)(xx) to be functional: having a provision of the Rome Statute that is inoperative defeats the purpose of that provision’s existence. It is unacceptable that, over 20 years after the creation of the Rome Statute, that annex has still not been drawn up, particularly when there are clear IHL treaties and rules regarding prohibited weapons. States should also be strongly pressed to ratify all amendments to Article 8, and Ukraine should also clarify whether its ad hoc acceptance of ICC jurisdiction includes any amendments to Article 8.

Of course, domestic prosecution should be the first port of call. The ICC is a court of last resort. States need to ensure that their domestic provisions provide for a comprehensive ability to take action against IHL violations. Many ICC state parties have only implemented the same war crimes as those in the Rome Statute, which clearly leaves many gaps. Australia is a rare example of an exception to this, also including a war crimes category of grave breaches of API in its domestic war crimes provisions. This includes the crimes of attacking works or installations with dangerous forces and attacking DMZs (Criminal Code Act 1995, Division 268, Subdivision H). But of course it is unlikely that Australia would be a forum for trying Russian war criminals!

Ukrainian domestic law does not have a substantial range of war crimes, although does contain a ‘catch-all’ provision prohibiting “use of methods of warfare prohibited by international instruments, or any other violations of rules of warfare recognised by international instruments consented to by binding by the Parliament of Ukraine, and also giving an order to commit such actions” (Article 438, Ukraine Criminal Code). This would allow Ukraine to prosecute an individual for violations of API and any other treaty to which they are a party. Both Ukraine and Russia are dualist nations with regards to criminal law, but otherwise see international law instruments as part of the legal system, prioritised over domestic law. This would mean that Ukraine would not be able to prosecute any war crimes not already in its Criminal Code and for any crimes related to treaties it is not a party to (such as the Cluster Munitions Convention). However, on face value, the ‘catch-all’ provision in Ukrainian law may provide the best option for accountability for Russian violations of IHL.

There needs to be a better solution for accountability for IHL violations. Piecemeal solutions are insufficient and result in at least partial impunity. States need to ensure they can hold perpetrators of all IHL violations accountable, and the ICC needs more comprehensive jurisdiction over war crimes.