IAmA lawyer who teaches and practices the law of armed conflict. With the situation in Ukraine, there has been a lot of discussion about international law. Ask me anything!
The Law of War is often referred to as the law of armed conflict (LOAC), or international humanitarian law (IHL). They all refer to the same body of law. I will use IHL for uniformity. You will also often hear the Red Cross being part of this conversation. That's because the Red Cross is the unofficial arbiter of IHL. In the 1800s, a Swiss businessman named Henry Dunant had a vision for a group of neutral humanitarians to aid the victims of war on the battlefield, as well as a set of rules that would limit the effects of war on non-combatants. That group of humanitarians became the Red Cross, and the set of rules became the Geneva Conventions. So the two are intertwined, and the Red Cross is specifically mentioned in the Geneva Conventions. In fact, the Red Cross symbol (often confused as a medical symbol), is meant to identify non-combatant/civilian objects in conflict, including hospitals.
IHL is made up generally of international treaties, the big one being the Geneva Conventions. You will hear the International Criminal Court (ICC) mentioned plenty, and about signatories to the ICC. It's important to distinguish between the Geneva Conventions and the ICC, in that Geneva is the actual IHL, and the ICC is merely an enforcement mechanism. All countries are bound by IHL, its merely an issue of whether the ICC can enforce violations if a certain country is not a signatory. There are other mechanisms for enforcement, such as domestic enforcement (court martials), and the principle of universal jurisdiction, which is like, this crime is so heinous that any one can arrest you and prosecute you for it.
IHL is designed to be a practical body of law. In that it recognizes that civilians deaths can and will happen in war. So civilian casualties, however tragic, doesn't automatically mean war crime. IHL instead requires belligerents to follow basic principles of proportionality (minimize collateral damage), distinction (don't purposely attack civilians), humanity (don't be cruel), and necessity (attacks must be linked to a military objective.
You will also hear genocide, war crimes, and crimes against humanity being mentioned side by side. These are all legal terms. To over simplify: a war crime is a violation of IHL, and must occur in connection to a conflict. A crime against humanity is a systematic and large scale attack against a civilian population, which doesn't necessarily need to occur in a war. A genocide is trying to eliminate, in whole or in part, a population of a certain characteristic (e.g. religion), which also doesn't need to occur in war time. For example, Nazi Germany invading the Soviet Union and leveling entire cities to the ground is a war crime, at the same time, their extermination of Jewish people back in Germany is genocide, but that's not at all related to the invasion of the soviet union, and doesn't need to be.
That's all I have for the primer, happy to answer any specific questions you have!
EDIT 1: *** All of my opinions are my own ***
EDIT 2: Many of your questions, although great, are asking for political opinions. I'm going to stick to the law as much as I can, as I don't think my own political opinions are relevant or helpful here.
EDIT 3: Resources to learn more:
- Red Cross IHL Blog: (https://www.rulesofwar.org/),
- Youtube Channel with IHL lessons:(https://www.youtube.com/channel/UC14DKWvBZHosSdQw7xrJkBQ)
- If you are in High School/college, ways to get involved in IHL through your local IHL chapter: (https://www.redcross.org/humanityinwar/international-humanitarian-law-youth-action-campaign/get-involved.html)
You are not wrong. Critics say that international law is mostly enforced by victor's justice. The Nuremberg tribunals are a famous example of victor's justice. Not to say that Nazis didn't deserve to be prosecuted, but rather very few crimes of the Allies were ever properly adjudicated. Today, most ICC prosecutions occur in Africa, whereas politically powerful nations on the UNSC are often criticized for being "above the law".
But the response to that is, it takes time, and International law is a work in progress. Racism didn't end with emancipation, or end of Jim Crow, or the civil rights act, but each of those things gave us progress. We have been able to hold State leaders accountable for crimes against civilians (e.g. Charles Taylor), we've indicted sitting Presidents (e.g. Omar al-Bashir) for crimes committed against his own people. This is a monumental development of international law in the context of human history. Proponents of IHL point to this, and other progress we've made in the last century, and conclude that it's a worthwhile effort. Is some enforcement better than no enforcement? What do you think?
EDIT: Hijacking my own top comment to share this free fundamentals of IHL online lecture from the DC Bar/Red Cross if anyone wants to learn more. (Add to cart, it's free). It's a few hours long, but it gives you everything you need to know to have a basic grasp of IHL.
ASPA authorizes the President of the United States to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court". This authorization has led the act to be nicknamed the "Hague Invasion Act".
O yes. The infamous Hague Invasion Act.
I think this is probably more of a political statement than good law. There is no way that a sitting US President would declare war on a NATO ally. I hope I don't eat those words.
[I'm a US citizen.] Biden has called for Putin to be tried as a war criminal, I guess because of civilian casualties. But Bush and Obama were not charged for crimes committed by US troops or mercenaries in Afghanistan or Iraq. Is there a clear basis for charging a top leader for crimes committed by those at the bottom ?
There's a legal principle called "superior/command responsibility", which holds commanders, or even political leaders responsible for crimes committed by their military. This has historical precedence. One of the most famous example being Charles Taylor, the President of Liberia, was convicted of Crimes against humanity by an international tribunal for crimes connected with his involvement in the civil war in Sierra Leon.
Ultimately though, its a very political question. IHL accountability often runs up against issues of sovereignty. In that international law is only as powerful as the political will of the community of nations, because there is no "global police force" to force sovereign nations to comply. Critics of the ICC often complain that prosecutions are solely against the "global south", African nations for example, while western nations are seldom subject to the same enforcement.
What's missing here is an answer to the question asked.
What would be more useful is an explanation that civilian casualties are not automatically war crimes. Mistakes are not war crimes. "Civilian" support personnel are perhaps military personnel, and are legitimate targets. Family members who live with combatants inside the war zone are clearly legitimate targets, and are probably support combatants. Etc., etc.
You are partially right. Civilian casualties are not automatically war crimes. Theoretically, there is an acceptable/legal level of collateral damage.
What I do want to point out is that family members who live with combatants are not legitimate targets. You cannot target civilians who are not directly participating in hostilities. Those family members may be collateral damage in an otherwise legal strike, but that strike technically targeted the combatant, not the family members.
Another example is civilians working in an arms factory. The factory is a legitimate target, because its building weapons, but the civilians inside are not. The factory CAN be targeted, and the civilians would just be collateral damage. What I mean by the civilians are not targets is that, as they leave work and go home, they cannot be targeted. In fact, IHL may require the belligerent to wait until evening, when the factory is empty of people, to attack it, precisely to avoid collateral damage.
Can the civilians be targeted if they are scientists that develop new bombs or something?
Based on OP's answer: yes.
They're directly contributing to hostilities so I think they would be viable targets. I don't see any difference between scientists who develop bombs and IED bomb makers. I'm sure you'd have to prove beyond a reasonable doubt that those bombs are developed by the "targeted scientist".
So, I would say no here. This is my fault for not expanding on what "directly" means in DPH.
We often use the "one-step test". Meaning that the act must be only one-step removed from hostilities. So the civilian building weapons in a factory is not DPHing. Because the weapon needs then to be transported to the front line, given to soldiers, and the soldiers then use them. That's too far removed and too many steps. Whereas, a civilian in the trenches helping reload or maintain weapons is DPHing, because he only has to give the loaded weapon to the soldier to be fired. That is a single step.
This is still some what a grey area of the law, but what I explained above is a common interpretation of what DPH means.
Did you mean to write, There is no* "global police force?"
Unless you count the power rangers.
What legal basis does the US and other Western countries have to seize the private property (yachts, bank accounts, real property) of alleged oligarchs?
Sanctions and seizing property does touch on international law in general, but not IHL, which only governs the conduct of hostilities in an armed conflict. I don't have any expertise in law related to international seizures or sanctions. Maybe someone else can chime in?
How’d you get into international law and the law of armed conflict? Sounds like an unusual specialty to get into.
Got interested in it in law school, got lucky with my first job. Now I serve as a JAG (military lawyer), and so naturally, we have opportunities to learn and practice IHL.
EDIT: If you are a law student, check out the Jean Pictet Competition, or Clara Barton competition, which are moot court competitions about IHL, and a great way to get in to the field.
I know you guys pretty much have to look out for uncle sam first, but I still love you for backing up my barracks lawyer bullshit that one time my company commander tried to bully me into some stupid nonsense.
Yep! I actually serve as a defense lawyer in my current role. We got you.
Well according to the show JAG, JAG lawyers often go on commando raids, kill terrorists and dogfight in jets. My question is when was the last time you did any of that?
I usually do my dog fights or commando raids before breakfast, so I have time during the day to see clients and do lawyer stuff.
What’s the single most effective punishment/reprimand towards a country like Russia and its leaders that you have seen over the years, that would make them think twice about pursuing their existing strategy in Ukraine? More to the point, what is effective in changing behaviour and when will it happen and how?
I can only answer this question as it relates to the law of armed conflict. Unfortunately, I can't think of any examples in the last century where a major world power has been held to account for violations of the Geneva Conventions against its will. The exception being at the conclusion of a bloody war where that world power was beat to submission and held to account by military force (e.g. Nuremberg and Nazi Germany). In the age of nuclear weapons, I don't see that happening.
Thank you for making time to answer all our questions, including mine! Is it then pointless having any international laws and courts in your opinion?
Per my answer above:
It takes time, and International law is a work in progress. Racism didn't end with emancipation, or end of Jim Crow, or the civil rights act, but each of those things gave us progress. Proponents of IHL point to progress we've made in the last century, and conclude that it's a worthwhile effort. Is some enforcement better than no enforcement? What do you think?
Who is responsible for war crimes - a particular executioner (say a soldier who torture and kill PoWs), his commander or a particular govermental structure (ministry of defence)? What happens if a country refuses to take action after international criminal court made decision against its people?
Everyone in the chain of command is responsible for complying with IHL. The Commander who orders a soldier to target civilians is responsible, and the soldier who knowingly follows that order is responsible. In principle, the soldier must disobey an order he knows to be illegal. Of course, this isn't so easy in practice.
The ICC seeks to hold individuals accountable. In that sense, the individual is usually brought in to the custody of the ICC before they are prosecuted. Therefore, if they are found guilty and sentenced, the person is physically there to be punished. Some international courts have tried people 'in abstentia", meaning they haven't captured the accused, and hold a trial without them. This creates obvious problems with not only executing the punishment but due process as well. I don't think ICC would try anyone in abstentia.
The US has "The Hague Invasion Act" on its books. Which calls for the President to invade the Hague (where the ICC is), if they ever hold an American service member on charges of war crimes. I don't think that's even a constitutional law, but its on the books the last time I checked.
Are privates who may be found guilty of carrying out war crimes per their commanders' orders given any education on military law? Do courts expect them to know enough to determine whether the orders they've received were orders to commit war crimes?
Obviously, the 19 year old grunt is not expected to know IHL. But everyone IS trained on the rules of engagement (ROE). ROE is basically a practical guide for the boots on the ground. ROEs accounts for not only IHL, but the nation's own military capabilities, and are tailored for the demands of every operation. Soldiers are often punished not for directly violating IHL, but for violating ROEs.
For example, ROEs may call on soldiers never to fire on mosques, or to never fire unless fired upon to avoid shooting civilians, etc. Similarly, IHL protects religious buildings and civilians.
Theoretical fantasy question - if Putin could be mysteriously spirited away and dumped on the steps of the ICC, what would be the legal position? Would there be real legal jurisdiction and legal basis for trying Putin for his various naughtinesses? Pretty sure Russia would denounce the whole thing as illegal, because that's how Russia do; but what would be the actual position?
Assuming that there is enough evidence, Putin would likely be prosecuted by the ICC. I say assuming because, although there are plenty of evidence suggesting war crimes, Putin is all the way at the top, and so there needs to be evidence linking him to the violations of law. It's a principle called "command responsibility"
Although neither Ukraine or Russia is party to the Rome Statute (founding document of ICC), Ukraine has voluntarily submitted to the jurisdiction of the ICC multiple times. By doing so, it allows the ICC to investigate the prosecute crimes that occur on Ukrainian soil. So, even if Russia is not a party, Russians can be charged by the ICC since all of these alleged acts occur in Ukrainian.
Even if the ICC doesn't prosecute him. Plenty of other countries may prosecute him under the principle of universal jurisdiction. Remember, the ICC is not the only mechanism for the enforcement of IHL. In principle, countries are suppose to enforce IHL against its own people first through domestic courts. Only when the offending country is not willing do we have to look at other options, including the ICC. Universal jurisdiction is the concept that some crimes are so heinous that it gives all of humanity the prerogative to prosecute and punish. These crimes are in a category called "grave breaches" of the Geneva Conventions. The most recent prosecutions under this principle have occurred in Germany and Spain.
If you hand out weapons to citizens to fight the enemy and they do, and then they go home at night to their apartments, are the apartments barracks and valid military targets now?
Really really good question. It's a can of worms.
Short answer is it depends, and reasonable lawyers have disagreed. Generally speaking, IHL recognizes only two categories of people in an armed conflict, civilians and combatants. Combatants can be targeted and civilians cant. Simple right? No.
Civilians are normally protected in conflict, with the major exception being if they "directly participate in hostilities" (DPH). When they DPH, they don't stop being civilians, they are now just civilians that may be targeted. What I mean by that is, civilians don't become combatants when they DPH. Combatants have special privileges like being treated as POWs upon capture, and the license to kill as long as they comply with IHL. Civilians NEVER get those things. This is purposeful, because it's mean to discourage civilians from DPHing. So now that it's clear that civilian DPHing can be targeted, we get to your question, which is, for how long can they be targeted? Do they become permanently targetable? THIS IS WHERE THERE IS SIGNIFICANT DISAGREEMENT.
Position of Humanitarians
The Red Cross position is that there can be a "revolving door", where a civilian becomes targetable as they enter the conflict, but they no longer become targetable when they leave and go home. This was the case in Afghanistan, when many farmers worked their land for parts of the year and then joined the fight after the harvest. The rationale here is that there is no imminent need to kill them when they are not DPHing. IHL is designed to avoid UNECESSARY death and destruction. So the argument is that when a fighter is at home, they pose no imminent threat to combatants such that they need to be killed. They can just as easily be arrested and detained as a civilian who broke the law.
Position of some militaries.
Some militaries argue against the revolving door concept. This was especially in the context of Afghanistan and Iraq, where many civilians would join armed insurgencies and repeatedly engage combatants. They argue that it's impractical to arrest them when they are deep behind enemy lines in unfriendly sections of the country and that any attempted to capture them in these areas could cost unnecessarily lives.
The Red Cross eventually recognized that civilians who are DPHing and are a part of an armed group serving a "continuous combat function" may always be targeted. So think Taliban. But it maintains that a single DPH does not make a civilian permanently targetable.
Hope I'm not too late in with this, but this aspect is something that has interested me in particular through the Ukraine conflict.
During the build up, we all saw on TV how civilians were both arming themselves or being armed by the government. We saw them making molotov cocktails. I assume these weapons were intended to be used from domestic locations. On balance it seems likely to me that direct attacks were launched from these buildings, and had genocide been a real objective, it would be more efficient to execute it by suppressing the military first and targeting civilians once a solid occupation was established.
So I am confused about how the accusation of war crimes can be levelled so readily when it is far from clear that the apartment blocks etc being bombed were indeed truly civilian.
Also as a side question, given that there are large numbers of civilian casualties, and early reports post withdrawal of bodies left where they lay, how does the apparent presence of mass graves in itself raise accusations of war crimes? Horrendous as it is, it at least does not seem worse to me that the bodies are buried in mass grave than left in the street.
when it is far from clear that the apartment blocks etc being bombed were indeed truly civilian.
The operative term you used is "far from clear". In IHL, everything that is not clearly a military object or combatant must be assumed civilian. In other words, if it's not clear, then its not targetable. If we did it the other way and assumed targets that are "unclear" were combatants, you can imagine that being a slippery slope and an excuse to level whole cities. Remember, IHL is designed to prevent unnecessary destruction and loss of life. Even in instances where a target is clearly military, you can still violate IHL by attacking it. Think of a stationary radar installation that's near a market. IHL would likely require combatants to bomb it at night when there are fewer people in the market to avoid collateral damage. The question is, what precautions did the combatants take to avoid collateral damage?
With regards to mass graves. I think the act of burying civilians in mass graves are often associated with trying to cover up war crimes. Many of these graves are unmarked, and can be hard to find. Moving the bodies from where they were killed and stripping them of their belongings makes it harder to identify them and figure out what happened. These bodies are often also looted prior to burying them, which is also a war crime.
How do you enforce LOAC when the conflict include terrorist groups who are supported by a country or territory, is not a signatory to the ICC and do not care about LOAC violations?
Also what link do you recommend for debates on reddit? (I use this one)
There is something called the "effective control" test. Countries often fight proxy wars by training, funding, and directing non-state actors/armed groups. International law recognizes that, if a nation effectively controls that armed group, then it can be held responsible for actions of that group. A notable example is the Bosnian Civil War, where an international tribunal found that Serbia was effectively controlling the Republika Srpska forces, which was an armed group in eastern Bosnia which committed war crimes.
Even in truly non-international armed conflicts between terrorist groups or insurgents, certain parts of the Geneva Conventions still apply, most notably Common Article 3. It prohibits the worst of war, such as indiscriminate killing, torture, etc. I think one of the incentives for non-state actors to abide by IHL is desire for legitimacy. Many armed groups are seeking to establish a government, and want international legitimacy, which may be helped by observing IHL.
If a municipal force is structured and instructed by its regional/federal government to disenfranchise a particular sub-segment of the population of it's own citizenry based on a certain characteristic (let's say race), and they and CALL it "a war", is that enough for international law to apply? Like the "war on drugs" in the US. Is that, like, an actual war? Or just political bloviating? If a municipal force is shown to be indiscriminately hostile towards a race within the confines of that situation, what international laws apply, if any? Sorry if this question is too stupid.
I think your question is, when does international law (IHL) apply? When is there a "war"? FANTASTIC QUESTION. There is two situations where IHL would apply, an international armed conflict and a non-international armed conflict. We don't say "war" because war is a political term. The US hasn't declared war on anybody for decades, but certainly there have been wars in the conventional sense. So we use the term "armed conflict", which is a legal term with a specific definition.
An international conflict is occurring as long as the "one shot test" is met. As in, if any country fires a single shot at another country, there is an armed conflict. Because even one shot can lead to situations of wounded soldiers, surrenders, POWs, all of which are covered in the Geneva Conventions. Another situation where there is an international conflict is where one country occupies the territory of another. This can happen technically without any shots fired, as in Crimea, and leads to situations where the occupying powers incur certain responsibilities towards the civilians in the occupied territories, which are also covered by the Geneva conventions. Don't ask me to define what a "country" is, that goes down a different rabbit hole that is far beyond this AMA.
A non-international armed conflict is much, MUCH more complicated. It's when a country fights a non-state actor (think a rebellion), or when two non-state actors fight each other. To over-simply, it depends on whether it looks like a war. Are there front lines? Do belligerent wear uniforms? Do the non-state actors have a command structure? Countries often like to downplay turmoil in their territory as a "law enforcement operation" so as to avoid the application of international law, but is it the police that's responding or is it the army?
Since there is no requirement that an armed conflict be limited to political goals rather than monetary goals, scholars have argued that the war on drugs, especially where there are organized cartels in central America, CAN be a non-international armed conflict. I don't think it's what the drafters of the Geneva Conventions anticipated, but it does make for a fun academic discussion.
After WWII many low rank nazis were captured but failed to be convicted for their crimes. Their defense was that they were "just following orders", which is true.
Is this a valid defense?
What can an army do when ordered to commit war crimes?
Who is responsible, the soldier who commited the war crime or the general that ordered it?
In the specific case of the nazi holocaust, is Hitler solely responsible?
Thank you for a relevant AMA. Keep up the good work!
Just following orders is not a valid defense to war crimes, and it was not successfully used by Nazi defendants in the Nuremburg trials. Soldiers should refuse an order that is clearly illegal. Both the soldier who committed it and the commander who ordered it are responsible.
Are repercussions for refusing an order considered as part of a defense? Say if a soldier or their family will likely face severe punishment (execution, imprisonment, torture) as a result of refusing orders.
Short answer is no. Even in domestic law, "duress" is not considered a defense to most serious crimes like murder. In other words, if someone puts a gun to your head and orders you to shoot someone else, you would still be guilty of murder if you complied. This is true for IHL as well.
I was a bit confused by your title at first until I read all of it. I am a lawyer who teaches and practices the law of armed self-defense (in my state in the US), and for a second there I thought you were talking about the same sort of thing.
I took an international criminal law class in Law School but that was over a decade ago, so I have forgotten most of it.
I do have a fairly specific question for you if you'd be so kind as to share your opinion.
What are your thoughts on Ukraine's decision to quickly and drastically relax their laws regarding private ownership and carrying of firearms in the face of the impending invasion? Do you think that the conflict will change the European conversation or attitudes about the private ownership of firearms, especially in the nations nearer to Russia? Do you think it could contribute to a trend of more permissive laws on the issue, similar to how Czechia recently added what has been described as its own "Second Amendment" to their constitution?
I am very interested in these topics from a scholarly and philosophical standpoint so I would be very interested to hear your thoughts!
What are your thoughts on Ukraine's decision to quickly and drastically relax their laws regarding private ownership and carrying of firearms in the face of the impending invasion? Do you think that the conflict will change the European conversation or attitudes about the private ownership of firearms, especially in the nations nearer to Russia? Do you think it could contribute to a trend of more permissive laws on the issue, similar to how Czechia recently added what has been described as its own "Second Amendment" to their constitution?
I have no opinions on the private ownership of firearms, and I think that's a bit outside of the laws of armed conflict. However, one related topic is the concept of "levee en mass". IHL (law of war) states that a civilian population that spontaneously rises up to resist an invading force must be afforded special protections under IHL. Specifically, they must treated as POWs upon capture. I thought this was super interesting, and certainly, Ukraine promoting private gun ownership could be in a way promoting the likelihood of "levee en mass" occurring.
When the US took over the lower states like California, Arizona, New mexico, and Texas from Mexico was it wrong or illegal? And is that comparable to what Russia is doing anexing Crimea and Ukraine?
Your question is not related to the law of war. There is a difference between the question: "is this war just?" and "are you conducting this war justly?"
In other words, you can go to war for the wrong reasons, but conduct the war in accordance with international law. Alternatively, you can be at war for the right reasons (i.e. self defense), but commit horrible war crimes in the process. IHL (Law of war) only covers the conduct of hostilities, not WHY you went to war in the first place.
But to answer your question, the UN charter probably prohibits naked aggression and expansionism. In the last decade, "aggression" also became its own crime enforceable by the International Criminal Court. So technically, we can hold a someone accountable for invading another country without reason. I am going to avoid expressing my own political opinions in this thread and avoid comparing the US war against Mexico to the Russia aggression against Ukraine. However, it is important to view events in historical context. Imperialism by world powers was widely acceptable in the old days, and it is absolutely not any more. It would be like applying today's legal standards to Alexander the Great. His whole greatness comes from naked aggression and rampaging through territories that was not his.
Is Russia a signatory to the ICC?
Is there any way to use international humanitarian law to help the people that Russia has forcibly conscripted, put in uniform and thrown into the Ukraine invasion as cannon fodder?
Some kind of political or military asylum?
Your second question first. It's important to remember that IHL only regulates the conduct of combatants in armed conflict. How Russia treats its own conscripts has more to do with human rights law. which is a completely separate body of law with its own enforcement mechanisms. Just like criminal law wouldn't apply to a contract dispute between you and your landlord, IHL has nothing to do with how Russia treats its conscripts and its own citizens, however wrong it may be.
Regarding the ICC, Russia withdrew its signature to the Rome Statute (founding document of the ICC) in 2016. There are other ways of getting a case to the ICC, like the UN security council can refer a case to the Court. But obviously that won't happen because Russia is on the UNSC. Critics of the ICC often point to its inability to hold powerful nations accountable, and I think that has some merit If you want to know more, This article explains the potential for ICC action on Russian war crimes better than I can.
But it's important to understand that historically, nations are suppose to enforce IHL on their own forces. That's what court martials are for. Universal jurisdiction also allows any nation to arrest any person suspected of having committed "grave breaches" of IHL. Spain and Germany has recently done this recently with cases unrelated to Ukraine. So that's a potential solution to hold people accountable.
Can russia's war crimes be lawfully considered genocide if it's proven they deliberately killed/tortured those who supported Ukrainian self-deliberation and nationality?
This is an interesting question that touches on the history of the genocide convention. Genocide is the elimination, in part or in whole, of a specific group of people. If we define that group of people by nationality, i.e. Ukrainian, then yes, killing them can be genocide. But if we define that group by their political opinion, i.e. "who supported Ukrainian self-determination", then no. That's because the genocide convention restricts the definition of genocide to groups based on "a national, ethnical, racial or religious group."
I think when the genocide convention was drafted and signed, there were several signatories actively persecuting people in their own countries based on political opinion (think communists). So they didn't want to be implicated for genocide, and kept "political opinion" out of the definition for genocide. This perfectly illustrates how political international law can be, instead of merit based.
You don't have to reach to get to genocide here. Yes, there's often an issue with proving the genocidal intent of a particular killing. Citing, for example, to Russian op-eds that reveal a genocidal intent can't necessarily be ascribed to individual soldiers. This isn't to say that it isn't happening right now in Ukraine, it's just that this is where a lot of work will have to go in to prove particular crimes.
But I think /u/Dreamwalk3r 's question can be more simply answered that deliberate targeting of civilians will be a war crime, period. Torture, whether because it is targeting of civilians, or because it violates POW protections, will be a war crime, period.
Yes, talking about war crimes alongside genocide and crimes against humanity can be confusing. They are all different categories of crime, and can also overlap.
Who are the biggest modern day war criminals and why?
This is such a subjective and political question and I'm afraid that we won't be able to answer it until we look back on "modern day" with objective hindsight . Because how do we define "biggest"? Is it the most egregious war crime, or the most number of war crimes? or does it depend on who the victim was?
In truth, all war crimes are terrible, because they involve death and destruction for those who have nothing to do with the conflict. Almost all of them involve an immeasurable amount of suffering for victims. To identify one person/party as the "biggest" war criminal would diminish the suffering of other victims. I don't think it's a productive exercise.
Rather, let's focus on labeling all war crimes as unacceptable, and building the institutions strong enough hold all war criminals accountable.
What does it mean to say that
all countries are bound by IHL
On what basis can that be asserted? And how is that assertion asserted if enforcement can’t happen for countries that don’t sign on the enforcement mechanism?
There is a concept called "customary international law". This is a body of law that has been so widely accepted, adopted, and practiced by the community of nations that it is considered enforceable international law against the whole world.
Think of an HOA (Home-Owner's Association), which is basically an association of all the family units in a neighborhood or large building. This is my analogy for the UN. The HOA comes together, voted, and created a huge book of rules on how your house must be maintained and HOA's fees and HOA meetings and the HOA board. These written rules are international treaties. But there may also be unwritten rules enforced in your neighborhood, like not letting you dog go number two on a neighbor's lawn. Even if this rule is not written down in the HOA bylaws, it's considered wrong to do so because its so widely accepted and practiced. THAT IS CUSTOMARY LAW.
The Geneva Conventions has now become customary international law. So even if a brand new country does not sign on to the Geneva Conventions, they are considered to be bound by it by the international community. There's much more to be said about customary international law, so I recommend you read up on it if you are interested!
How effective is the Red Cross is fulfilling their role?
I don't have the insight to answer that question in the context of Ukraine.
This war is the first most people have heard about Switchblade drones, and it seems like they are concerningly close to automating the kill decision which is widely considered to be a terrible idea.
Is there any law or regulation around AI warfare these are skirting the line on? Or is that all entirely unregulated.
Great and super relevant question that has a lot of interesting literature on it.
Drones are not specifically regulated by any IHL treaty, but that doesn't mean the are not regulated at all. General principles of IHL still apply to their use.
Firstly, Article 36 of Additional Protocol I to the Geneva Conventions obligates States the carry out legal reviews of any new weapons they develop. So states building these drones have the responsibility under IHL to figure out whether they are legal, and ensure the way they are used are also legal.
But one of the central considerations for autonomous weapons is, as you mentioned, whether they can adequately distinguish between civilian and military targets. This is central to the IHL principle of "distinction" which I mentioned in my introduction. Weapons that cannot distinguish between valid targets are banned (e.g. landmines). Generally, autonomous weapons that have SOME human input are more likely to be legal. For example, a weapon that picks out its own targets, but requires human input before firing. Completely autonomous weapons are problematic. Because if it violates IHL, who is held responsible? The software programmer that programmed the code? The designer of the drone? Being able to avoid IHL accountability in that way may also be a violation of IHL.
Would love anyone's additional input on this.
Are there illegal weapons? I used to think that shotguns were illegal. I think cluster bombs should be illegal.
Yes there are illegal weapons. Mostly, weapons that cannot adequately distinguish between combatant and civilians are banned. Think of cluster bombs, anti-personnel mines, chemical weapons. They are often banned by international treaty.
Weapons that are unnecessarily cruel are also banned. So think "dum dum" bullets that crash in to the body and splinter in to hundreds of shards that are impossible to extract, or flammable weapons that cause nasty burns, or special blades that cut in a way which causes wounds that cannot be closed.
Even where a weapon is legal, they can be used in an illegal way. For example, white prosperous can be used to light up the battle field at night, which is fine. But when they are used directly on people, they stick to your clothes and cause nasty burns. That's illegal.
What did you study to end up in this field?
I went to law school, and picked the field after graduation.
Why doesn't anyone declare war anymore, and does it matter for the purposes of IHL?
War is a political term. IHL uses the legal term of art "armed conflict". Whether there is an armed conflict is a factual determination which I elaborate on elsewhere here. So whether there is an armed conflict has nothing to do with whether a nation has declared war.
What is the definition of "armed conflict" and could it ever be applied to cyber warfare? For example, would hacking into and weaponizing some type of infrastructure to physically attack civilians count as armed conflict?
If not, is there any discussion about how IHL will adapt to the rising threat of cyber warfare?
This is now my favorite question of the thread. I go over the definition of "armed conflict" elsewhere in the thread, link.
Many scholars think that IHL absolutely can and should be applied to cyber warfare. Although the original drafters of the Geneva Conventions likely didn't foresee cyber warfare as a thing. Article 36 of Additional Protocol I to the Geneva Conventions does obligates States the carry out legal reviews of any new weapons they develop for compliance with IHL, this includes cyber weapons. There is now actually an authoritative manual on cyberwarfare and IHL called the Tallinn Manual if you are interested.
Think about what cyber warfare can do, it may shutdown entire electrical grids, causing mass blackouts that are just as effective as targeting a power plant with a traditional weapon. In 2010, the US famously used the Stuxnet virus to hack and control Iranian centrifuges that were enriching nuclear material, causing the equipment to physically destroy themselves. Imagine what would happen if cyber warfare targeted a nuclear powerplant and cause a melt down! This has all the same considerations as a traditional kinetic war. I recommend this ICRC Q&A on cyber warfare and IHL for more reading!
What is the appropriate and, separately, likely, remedies for Russia's violations of jus cogens norms relating to their war crimes?
Likely? I don't know. I don't think there are many good options. I would imagine some Russian POWs accused of war crimes could easily be tried for war crimes by either Ukraine or some other tribunal. But otherwise, the big issue is how we would bring the accused war criminals in to the custody of the ICC or a nation willing to prosecute them. *shrugs.
A lot of conversation is being made of war crimes in Bucha (and other parts of Ukraine) and Russia’s potential utilization of weapons of mass destruction. All with good reason of course.
However, how does the fact that Russia has engaged in a war of aggression play into the consideration of all this. Couldn’t the fact that this was an unprovoked military action against Ukraine be sufficient to be a war crime in and of itself?
Btw—looking towards a career in international law myself.
Yes you are right. In modern times, war is generally considered illegal under international law. Long gone are the days where "holy wars" and wars of imperialism had widespread acceptance.
The United Nations charter outright bans any recourse to force in international relations, with the exception of self defense, or a collective international response to another country's act of aggression/threat to global peace. This is why aggressors often try to justify aggression by fabricating a narrative of some external threat. In this case, Russia pointing to the threat of NATO on their doorstep, and the US alleged intent to topple the Russian government, thus their war in Ukraine is "self-defense". It's important to understand that self-defense can only be invoked to some concrete and imminent threat.
The ICC also recently codified aggression as a crime in itself (compared to the other crimes it codifies which has to do with individual actions in the conflict, rather than the reason for starting the conflict). So yes, the ICC can technically indict someone for the unprovoked military action against Ukraine in and of itself.
We've seen reports of Ukrainian civilians feeding Russian soldiers poisoned food/drink. I've got an acquaintance on Facebook, who was an attorney in the army, arguing that that is a war crime. Seeing as I flunked out of the Google School of Law, what's your read on that?
Edit: I went back and found his comment, not sure what the "in the second place" part refers to as it's the first reply in the thread:
In the second place, when you're not a privileged combatant, which requires that 1) you wear a fixed insignia recognizable at a distance, 2) carry your arms openly, 3) operate under a chain of command responsible for your actions, 4) operate in accordance with the laws of war. 1 and 3 can be put aside for 3 days when an enemy first shows up in an area. 2 and 4 cannot. Their weapon was poison; was it openly marked as a weapon? No? War crime. Past three days? War crime.
In addition, The Ukraine is a party to this: https://www.opcw.org/chemical-weapons.../articles/preamble which prohibits the use of toxic chemicals...like...ya know...POISONS.
Now Russia is funny; they neither trust treaties, having been screwed before, nor are they especially conscientious in adhering to them, nor do they let their press intrude in matters of national defense. The OPCW claims Russia has destroyed its chemical stockpiles. I don't believe it for a minute. So if they reprise against this war crime by opening active chemical warfare - a reprisal is a war crime that becomes legitimate and lawful to enforce the law of war - the Ukrainians have themselves to blame.
So, civilians can't really commit a "war crime". When civilians kill people, or poison people, it's just a . . . crime. The thing you have to remember is, combatants have this special status which gives them immunity to destroy property and kill people. It's only when they do it in the wrong way (e.g. shooting at someone surrendering) that they are punished. THAT is a war crime. Civilians never had that immunity to begin with. So for any civilian to destroy anything or kill anyone, it is just a normal crime punishable by domestic law.
*EDIT I want to add the caveat that civilians can be part of an armed group directly participating in hostilities. In which case I guess they could commit violations of the Geneva Conventions. It's...complicated. Happy to have other people chime in.
So you're a lawyer? Name every law.
My favorite is the Law of Gravity, it's a bit of a downer though.
I'm a first-year UK LLB and the time is fast approaching when I'm going to have to choose a subject to specialise in. IHL caught my eye, and the more I read on the subject the more I think I might enjoy it.
Any recommended reads, tips or advice for someone in my position?
If you are looking to learn, there are so many good IHL blogs out there that talk about them in the context of current events. Look in to international IHL competitions for students like Jean Pictet, which is a great way to network in the field.
Happy to discuss more if you PM me.
What's the point of international conflict law when all the big guys get to basically ignore it anyway?
Valid question, but it's like asking, what's the point of civil rights law if racism still exists, and many political leaders are still openly racist and pursue discriminatory policy? I think MLK's quote is poignant here "the arc of the moral universe is long, but it bends towards justice."
IHL is far from perfect. But we've made so much measurable progress in the last century. The idea that a head of state (e.g. Charles Taylor) can be held for crimes against its people is unprecedented in the context of human history. I think that's really exciting. While I feel for all the victims whose immeasurable suffering will never be addressed in a court room, we have brought SOME people to justice. That's better than nothing. and each of these cases set a precedent, which may one day bring the big guys to justice too. Let's hope.
Will every crime be investigated by an independent committee? What are the usual due course/timeline for investigation? What happens to the accused while the crimes are being investigated?
What are the usual due course/timeline for investigation?
Unfortunately, the timeline has historically been very long. This is especially the case when the "offending power" still exists, and so they will try their best to thwart any prosecution. But each case is so different. International enforcement of IHL is still novel, and so there is no "usual" timeline.
Before the ICC, a bunch of ad hoc (one time) tribunals were established to investigate and prosecute crimes from various conflicts. For example, the International Criminal Tribunal for the former Yugoslavia is only recently wrapping up its work prosecuting war crimes from the break up of Yugoslavia in the 90s. The Extraordinary Chambers in the Courts of Cambodia, which was established to prosecute the crimes of the Khmer Rouge is STILL WORKING TODAY! Despite these crimes having occurred over 50 years ago. It's mostly political considerations that get in the way of speedy prosecutions.
My comments here only apply to cases where the offending power refuses or is unable to prosecute its own people for violations of IHL. Remember that nations are suppose to do that through domestic systems. The US does that through court martials. The recent prosecution of Navy SEAL Eddie Gallagher being an infamous example.
As to your other questions:
I don't know whether there will be an "independent" committee to investigate it. There are pollical and practical considerations to this issue. I'm sure Ukraine will want its own people to investigate it, and perhaps they will have international assistance in doing so. But, I'm sure Russia will never admit that such an effort is "independent".
What happens to the accused while the crime is investigated depends on so many factors. Who is investigating? How much evidence do we already have? Domestically, you can arrest and hold someone pending trial if there is enough evidence to show that they are a danger to the public, or that they may flee your jurisdiction. It's a bit different in the international sense because Russia would actively try to avoid the jurisdiction of international courts. So if the ICC ever got a hold of someone important, there's probably a good argument to be made to hold them for fear that they would flee the jurisdiction.
How did you get into this line of work?
A lot of luck. As I've answered in the other thread, I went to law school, focused on international law, and met great people already in this field. It's a comparatively small area of law but definitely growing and developing. I think it's exciting precisely because the law and its enforcement mechanisms are not settled. So you get to be part of building something important and great for the world.
Ive been seeing people on reddit posting pictures of leaving their home country to go to and fight on either side of this conflict in Ukraine. This seems like a great way to get into a lot of legal trouble. My question is, what kind of trouble or laws can some of these wanna-be mercenaries be held accountable for?
So, mercenaries have a VERY SPECIFIC definition under international law. Without writing an essay, they are usually fighting due to financial incentives. Volunteers who are flooding in to Ukraine for ideological reasons are not mercenaries in the legal sense. If they are incorporated in to the Ukrainian armed forces (they wear Ukrainian uniform, and are under effective Ukrainian command structure), then they are considered combatants, and should be treated under IHL like any other Ukrainian soldier.
However, that doesn't prevent them getting in trouble with their home countries if their actions break some domestic law.
Mercenaries are a fun IHL topic that deserves its own thread. Basically they have zero protection under IHL and are super frowned upon.
Hey! I just saw this post and am hoping if you could answer a debate that happened in a sub the other day. What is the legal ramifications for attacking the Red Cross or any other volunteer aid? Is there a difference if they are helping military as well as civilians and does that give the enemy the right to target the place where the help is being issued?
Under no circumstances are you allowed to attack the Red Cross or any other humanitarian organization. It's a war crime. The entire point of the Red Cross is to aid those who are not part of the hostilities, regardless of whose side they are on. This includes wounded soldiers, wounded civilians, POWs. Etc.
I encourage you to look in to the founding of the Red Cross. It was because a Swiss businessman was moved by what he saw on an 1800s battlefield, wounded soldiers left dying without medical aid. He organized civilians from a local village to care for those wounded, write down their last wishes, give them their last rites. The entire point of the Red Cross is to be in the middle of fighting caring for whoever needs it. The entire point of IHL is to have rules to facilitate the work of the Red Cross and other humanitarians, and to minimize unnecessary suffering and destruction.
If Putin leaves Russia and goes to another country for whatever reason (for example going to a summit), would he be able to be apprehended for war crimes? Is there any scenario where he could be apprehended outside of Russia?
Yes, this can be legally justified in two ways. The first is because Putin has been indicted by the ICC, the second is if Putin has been accused of graves breaches of the Geneva Conventions, such that all nations have universal jurisdiction to detain prosecute him. But both of these are complicated by political considerations. I talk about both below:
This actually kind of happened. The ICC indicted the President of Sudan Omar al-Bashir in 2009 for his crimes in Darfur. He's the first sitting head of state to be indicted. So he was VERY limited to where he could travel, because there were nations that would have arrested him had he entered. He was eventually handed over to the ICC by his own government.
A few nations, like Spain and Germany, have invoked universal jurisdiction to prosecute grave breaches of the Geneva Conventions like murder and torture of civilians. Most recently, Germany has done so to prosecute Syrian war criminals, who ended up in Germany as refugees. But as you can imagine, having a country prosecute another country for their war crimes is filled with issues about legitimacy. After all, an adversary can similarly retaliate by arresting an American or Ukrainian and invoking universal jurisdiction, which would dilute the principle of universal jurisdiction altogether.
In the end, I think its less about the law and more about the political considerations. If a country arrested Putin, would Russia consider that an act of war? Would they threaten the world with nuclear weapons if Putin was not returned? Would they retaliate by arresting other world leaders that enter their territory?
What are you most afraid of?
Mostly the dark. I have a night light.
But in all seriousness, I'm afraid of nuclear war in the context of the invasion of Ukraine. I'm also afraid this conflict ending with no real consequences for Russia, but it appears that won't be the case.
Why is Putin not bombing the hell out of Ukraine? It’s like he is holding back. Is he afraid of the repercussions
Why is Putin not bombing the hell out of Ukraine?
Mariupol begs to differ.
Do general sanctions that harm the welfare of civilians constitute an attempt at genocide?
One of the acts that constitute genocide per the convention is: "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part". I think that's as close as we get to your question. I don't think "general sanctions" would get anywhere close to that definition. Genocidal Intent is also a huge part of genocide, and I doubt that it would be met in the case of sanctions.
On a macro enough level, Could any of this be more complicated than "Might makes right"? If you have a problem with international law, you could just kill anyone who tries to enforce it on you.
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