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An Analysis of the Conflict in Ukraine From an International Humanitarian Law Perspective – Muhammed Ceesay

An Analysis of the Conflict in Ukraine

An Analysis of the Conflict in Ukraine From an International Humanitarian Law Perspective

ABSTRACT

The conflict in Ukraine has been raging for more than a year now, and it has resulted in deaths and injuries of thousands, destruction of critical infrastructure, and the halting fundamental services in Ukraine. It shall, therefore, be this paper’s object to analyse the conflict in Ukraine from the perspective of International Humanitarian Law (IHL). International Humanitarian Law, also called jus in bello, seeks to protect those not or no longer participating in the hostilities, and further regulates the conduct of the parties to the hostilities by proscribing excessively injurious means and methods of warfare.

In analysing the conflict in Ukraine from an IHL perspective, special focus shall be had to the incidents in hotspots of the conflict in Ukraine, such as Kyiv, Kharkiv, Sumy, Chernihiv, among others, with great consideration to the basic principles underpinning IHL, including but not limited to distinction, limitation, precaution, and proportionality. In furtherance of this analysis, the paper shall further examine the legality or otherwise of the means and methods of warfare employed by the parties, especially in relation to engagements in civilian settlements. In particular, the paper shall point out some prohibited methods of warfare employed in Ukraine, such as sexual violence, pillaging and unlawful internments.

It shall as well identify the use of use of prohibited weapons such as cluster munitions and the effects of same on civilians. The paper further assesses the parties’ respect for protections accorded to cultural objects and the natural environment. The paper concludes that there indeed have been grave breaches of IHL in Ukraine, and has consequently, proffered several recommendations, including but not limited to further investigation as well prosecutions both at local and international judicial fora.

KEYWORDS: Civilians, Combatants/military, Armed conflict, International Humanitarian Law, Vladimir Putin, Russian Federation, Ukraine, Legality, Protected persons, Weapons

Introduction

This paper seeks to analyse the conflict in Ukraine from an International Humanitarian Law perspective. In so doing, regard shall be had to applicable laws such as the Geneva Conventions of 12 August 1949, their Additional Protocols and the Convention on Certain Conventional Weapons among others; reports of human rights institutions as the United Nations Office of the High Commissioner for Human Rights, the International Independent Commission of Inquiry on Ukraine and the United Nations Human Rights Monitoring Mission in Ukraine, and such other works of eminent scholars pertinent to the subject under review.

Overview of International Humanitarian Law and its Application

Before analysing the conflict in Ukraine from an International Humanitarian Law perspective, it is imperative to first give an overview of International Humanitarian Law and its application. International Humanitarian Law, also called law of war, law of armed conflicts or jus in bello, can be defined as the body of law governing the conduct of armed conflict.1 International Humanitarian Law forms a major part of public international law and it comprises rules which, in times of war or armed conflict, seek to protect people who are not or are no longer taking part in the hostilities, and to restrict the means and methods of warfare employed.2 For humanitarian reasons, this body of law seeks to restrict the right of the parties to a conflict to use the means and methods of warfare of their choice, and protect people and property affected or liable to be affected.3 Thus, it could be said that International Humanitarian Law is a body of law that seeks to minimise suffering caused by war.4 International Humanitarian Law does this by protecting those not, or no longer, taking part in in the hostilities.4 This includes the sick and wounded, those caring for them, prisoners of war, and the civilian population.

International Humanitarian Law equally forbids belligerents from using weapons or tactics that will inflict unnecessary suffering on their enemies.5 Fundamentally, the principles of International Humanitarian Law are embodied in the four Geneva Conventions and their Additional Protocols, the Hague Conventions and customary international law. Geneva Convention I seeks to protect and accord basic guarantees to soldiers in the battlefields while Geneva Convention II operates in a similar fashion at sea. Geneva Convention III seeks to protect prisoners of war; it principally prohibits torture and other acts of cruelty on prisoners of war. Geneva Convention IV operates to protect the civilian populations in times of war, and in particular, prohibits acts of torture or violence against civilians. Addition Protocols I and II further widen and strengthen the protections in both international and non-international armed conflicts. The Hague Conventions, on the other hand, regulate the means and methods of warfare, principally means and methods that cause superfluous or unnecessary injury. These principles contained in the Geneva and Hague Conventions are further supplemented by the customary international law, which fills the gaps in existing principles, especially those touching on non-international armed conflict.

As defined in the preceding paragraph, International Humanitarian Law or jus in bello, as opposed to jus ad bellum, is concerned with regulating the conduct of armed conflict, rather than its commencement. International Humanitarian Law is not concerned with how a conflict started or who was to blame for it. Rather, it stipulates what forms of conduct are permissible once an armed conflict is going on. The distinction between jus in bello and jus ad bellum is of great significance. The objective of International Humanitarian Law is to set up a body of rules that applies consistently to all parties to an armed conflict. It thereby avoids the need to draw difficult and controversial distinctions between just and unjust conflict; it as well avoids passing judgements as to who is right and who is not. It simply applies the same fundamental principles—guarantees and responsibilities—to all of the parties to the conflict. For this reason, my analysis of the conflict in Ukraine shall not, therefore, be on the justness or otherwise of the conflict; instead, it shall fundamentally be on the conduct of the parties to the conflict.

Background of the Conflict in Ukraine

On 24th February, 2022, the President of the Russian Federation, Vladimir Putin, declared the launching of a “special military operation” to “seek the demilitarisation and de-Nazification” of Ukraine.6 On the same date, the Russian armed forces crossed various border points into Ukraine, including from Belarus, and launched a full-scale land, sea and air invasion of Ukraine.7 Shortly thereafter, missile and shelling attacks began against multiple Ukrainian cities. In a distinct statement on the 22nd February, 2022, President Putin claimed that goal of the goal of the operation was to demilitarise8 Although these grievances included the long simmering dispute over the expansion of the North Atlantic Treaty Organisation (NATO) and the shape of post-Cold War security architecture in Europe, Putin’s speech centred on a much more fundamental issues, such as the identity and statehood of Ukraine.4 In the preceding days, Mr. Putin had recognised the provinces of Donetsk and Luhansk, in eastern Ukraine, as independent republics. It was after this bizarre move that the Federation Council of Russia subsequently approved the military operation in Ukraine.9

Following the Russian Federation’s declaration of war and launching military offensives in Ukraine, there had been several calls for cessation of the hostilities from international organisations, States, and provincial bodies.10 At the United Nations level, for instance, after a draft resolution demanding that the Russian Federation cease its military offensive against Ukraine failed to pass in the Security Council due to a veto by the Russian Federation, the General Assembly, in its resolution ES-11/1 of 2 March 2022, demanded that the Russian Federation immediately, completely, and unconditionally withdraw all its military forces from the territory of Ukraine. ((ibid, supra note 14)) On March 16th, 2022, the International Court of Justice ordered in unequivocal terms the Russian Federation to suspend its military operation in and against Ukraine. ((ibid)) States and provincial bodies have equally condemned the operation, called for an immediate cessation and imposed far-reaching sanctions on and other measures against the Russian Federation.4

However, notwithstanding the condemnations and calls for cessation, the hostilities in Ukraine rages.11 In response, the Ukrainian authorities had declared martial law and ordered a general mobilisation.12 Military strikes using explosive weapons, such as cluster munitions, had been launched by the armed forces of the Russian Federation across Ukraine, including in areas situated far from the frontlines, causing significant civilian casualties and large-scale destruction of residential buildings and critical infrastructure.4 Civilian casualties continue to grow.13 Since the beginning of the war in February, 2022, thousands of civilians have been affected by the war—have either been displaced, wounded or killed—and critical civilian objects have been destroyed or damaged.14 As at 17th October, 2022, United Nations Office of the High Commission for Human Rights had recorded 6,306 people killed and 9,602 wounded in all of Ukraine since 24 February 2022. From 24th February to 31st March 2022, in the four provinces Kyiv, Kharviv, Chernihiv and Sumy, 1,237 civilians, including 112 children, were killed, according to the United Nations Office of the High Commissioner for Human Rights, Volker Turk. Actual figures are likely to be much higher.4

In Ukraine, months of fighting have gravely impacted the country’s infrastructure, with thousands of residential buildings, as well as medical and education facilities, destroyed or severely damaged.4 As of mid-October, 2022, millions had lost homes and livelihoods, and were forced to flee. Over 7 million people from Ukraine have sought refuge abroad and over 6 million are internally displaced.15 In most of the affected areas within Ukraine, essential supplies are lacking, and there are access challenges for humanitarian assistance. The foregoing facts apparently establish prima facie violation of International Humanitarian Law, particularly its basic principles of distinction, limitation, proportionality, and necessity among others.4 In this respect, the subsequent parts of this paper shall be devoted to analysing the conflict in Ukraine, mindful of the facts by the investigative bodies, from the perspective of International Humanitarian Law. Evidently, the ongoing hostilities have hampered people’s enjoyment of their human rights and fundamental freedoms.4 Countless allegations of violations and abuses of International Humanitarian Law and related crimes have been reported.4 On 28 February 2022, the Prosecutor of the International Criminal Court opened an investigation into allegations of war crimes, crimes against humanity and genocide.4 Numerous other international and national entities have initiated investigations of allegations of violations of International Humanitarian Law committed in Ukraine.4

Does the Conflict in Ukraine Qualify as an ‘Armed Conflict’?

The application of the principles of International Humanitarian Law is conditioned on the existence of an armed conflict. In the jurisdiction case of Prosecutor v. Tadic,16 the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) noted that for International Humanitarian Law to apply, “there must be an armed conflict.”17 In light of the foregoing, it is, therefore, imperative to first establish whether or not the conflict in Ukraine qualifies as an armed conflict before analysing the said conflict from the perspective of International Humanitarian Law. Common Article 2 of the Geneva Conventions of 1949 provides that the Geneva Conventions (the core treaties on International Humanitarian Law) apply to “all cases of declared war or any other armed conflict which may arise between or more of the High Contracting Parties, even if the state of war is not recognised by one of them.” ((Article 2 Common to all the Geneva Conventions of 12 August 1949)) Common Article 2 further states that the provisions of the Conventions also apply in cases of total or partial occupation of a State party’s territory, even if the occupation is not met with resistance. Clarifying the definition under Common Article 2, the ICTY Appeal Chamber, in the case of the Prosecutor v. Tadic,16 noted that “an armed conflict exists whenever there is resort to armed force between States…”18 Given the fact that there is resort to armed force between Russia and Ukraine—coupled with President Putin’s formal declaration of war on 24th February, 202219—there is indeed an armed conflict in Ukraine, which, by virtue of the parties involved, is of an international character, and for this reason, parties to the hostilities in Ukraine are fully bound by the principles of International Humanitarian Law, particular the Geneva Conventions of 12 August 1949 and their Additional Protocols as well the Hague Conventions20 and the relevant customary international law principles. In particular, parties to the hostilities in Ukraine are obliged to ensure humane treatment of vulnerable groups, and refrain from the use of excessively injurious means and methods of warfare.

Analysis of the Conflict in Ukraine from the Perspective of IHL

Under International Humanitarian Law, there are some cardinal principles that regulate the conduct of the belligerents in a situation of armed conflict.5 These principles, among others, include distinction, proportionality, precaution, and humanity—all of which are embedded in the 1949 Geneva Conventions, their Additional Protocols, as well as customary international law. My analysis of the conflict in Ukraine shall, therefore, be underpinned by a great and coherent consideration of the principles of International Humanitarian Law:

Distinction

First and foremost, in the context of the conflict in Ukraine, it is my observation that the principle of distinction has not been fully respected by the parties to the conflict.21 This fundamental principle obliges military commanders to distinguish, in their operation, between civilians and civilian objects on one hand and combatant and military objectives on the other hand.22 Article 48 of Additional Protocol I makes it clear that this principle takes the form of an absolute prohibition. Article 48 provides that the parties to an armed conflict “shall at all times distinguish between civilian objects and military objectives and […] shall direct their operations only against military objectives.” ((Article 48 of Additional Protocol I)) Based on the report of the Independent International Commission of Inquiry on Ukraine23 and the statement of United Nations High Commissioner for Human Rights on 3rd March, 2023 at the 52nd Session of the United Nations Human Rights Council in Geneva, I believe that the principle of distinction has not been complied with so far as the conflict in Ukraine is concerned. According to its report, the Independent International Commission of Inquiry on Ukraine, for instance, highlighted that“[r]esidential buildings, schools and hospitals, among other parts of civilian infrastructure, have been damaged or destroyed.”24 The Commission further found that Russian armed forces “had shot at civilians attempting to flee, and during the conduct of hostilities, the parties had deployed their military assets and troops in ways that endanger civilians, in contravention of international humanitarian law.”4 Apparently, the foregoing facts, as accounted by the Independent International Commission of Inquiry on Ukraine, constitute a grave violation of International Humanitarian Law, particularly the principle of distinction, which, as codified in Article 48 of Additional Protocol I, requires distinction of military and non-military objectives from civilians and civilian objectives. Further, the United Nations High Commissioner for Human Rights, Volker Turk, recognised that severe violations of human rights and international humanitarian law have become shockingly a routine [in the conflict in Ukraine].25 Part of the “severe violations”4 of “international humanitarian law” ((ibid)) High Commissioner Volker Turk referred to was the violations of the principle of distinction, confirming my averments above. According to High Commissioner Turk, his Office (i.e the United Nations Office of the High Commissioner for Human Rights) has “verified more than 8, 4000 civilian deaths, and over 14, 000 civilians wounded, since 24 February 2022.”4 He further stated that most of the “casualties”4 resulted from Russian forces’ use of wide-impact explosive weaponry in “residential neighbourhoods.”4 Corroboratively, the investigations of the International Independent Commission of Inquiry on Ukraine also revealed that that “[a]ttacks with explosive weapons had a devastating effect on buildings and infrastructure. Thousands of residential buildings, schools, hospitals and facilities hosting essential infrastructure in the four provinces have been damaged or destroyed.”26 The said Commission further observed first-hand the extent of the damage in all twenty-seven (27) settlements it visited.4 In Chernihiv, for instance, the Commission observed dozens of houses and other buildings that had been destroyed or damaged during the attempt by Russian armed forces to take the city. In Kharkiv, similarly, explosive weapons devastated entire areas of the city. ((ibid))

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Additionally, on 16th March, 2022, several munitions, including unguided rockets, struck an area in Chernihiv where more than two hundred (200) civilians were queuing for bread near a supermarket and killed at least fourteen (14) civilians and injured twenty-six (26).27 Furthermore, significant civilian harm, both in terms of casualties and damage to buildings and infrastructure, resulted from indiscriminate airstrikes using multiple unguided bombs in populated areas. On 3rd March, 2022, an airplane dropped several unguided bombs on a residential area near the intersection of Chornovola and Kruhova streets in the city of Chernihiv, killing at least fourteen (14) civilians and injuring dozens.4 The Commission saw large craters and destruction, indicating that at least six munitions struck within an area of about 130 metres, causing significant damage to the infrastructure. Around the same time, also in Chernihiv, an airplane dropped several unguided bombs in the Podusivka district, about 2 kilometres east of the first attack, killing at least six civilians, including one child.4 The impact of the attack spanned over 500 metres and affected a large area, which included two schools and residential buildings.4 These disturbing accounts of indiscriminate use of destructive and wide-impact explosive weapons in civilian settlements and residential neighbourhood is a blatant violation of the principle of distinction, and such, a violation of the Geneva Conventions and Additional Protocol I. In Prosecutor v. Mile Mrksic et al.,28 the Trial Chamber of the ICTY noted that the extensive damage to civilian property and civilian infrastructure, the number of civilians displaced or forced to flee clearly indicate that the attack was carried out in an indiscriminate way, and as such, violated international law.29

Limitation

In addition to the parties’ lack of respect for the principle of distinction, from the facts revealed by investigative bodies such as the United Nations Office of the High Commissioner for Human Rights, it is my observation thatthe fundamental principle of limitation has also been greatly and gravely disregarded by the parties to the conflict in Ukraine.30 The principle of limitation, in the simplest sense, seeks to restrict the parties to a conflict from resorting to means and methods of warfare that can cause superfluous injury and unnecessary suffering to the combatants and severe damage to the natural environment. This principle is embedded in Article 35 of Additional Protocol I,31 which provides that in an armed conflict such as the one in Ukraine, the right of the parties to choose the means and methods of warfare is not unlimited. Notwithstanding this principle, inquiries into the conflict in Ukraine reveal that means and methods with exceedingly superfluous injurious effects have been used by the parties to the conflict in Ukraine. According to its investigations of the events in Kyiv, Chernihiv, Kharkiv, and Sumy regions in late February and March, 2022, the Independent International Commission of Inquiry on Ukraine23 established that “[t]he the relentless use of explosive weapons with wide area effects in populated areas has killed and injured scores of civilians and devastated entire neighbourhoods. The Commission documented indiscriminate attacks using cluster munitions, unguided rockets and airstrikes in the context of attempts by Russian armed forces to capture towns and smaller settlements. The Commission further noted that these weapon system caused significant harm to the civilians. Indeed, most of the verified deaths since the outset of the hostilities have been caused by these weapons”32 From the foregoing, it could be said that parties to the conflict in Ukraine, most especially the Russia forces, do not respect the principle of limitation.

Proportionality

Aside the parties’ violation of the principles of distinction and limitation, I hold the view that a close examination of the conduct of the hostilities in Ukraine also reveals that the principle of proportionality has be repeatedly, systemically and blatantly violated by the parties. According to the Trial Chamber of the ICTY in Prosecutor v. Stanislav Galic,33 the principle of proportionality is inherent in the competing requirements of humanity and military necessity, and can be derived from Articles 15 and 22 of the Lieber Code, and Article 24 of the Hague Air Warfare Rules of 1924, with Article 51 (5) (b) and Article 57(2) (a) (iii) and (b) of Additional Protocol I providing the modern conventional version of the rule. The principle of proportionality, as contained in Article 51 (5) (b) of Additional Protocol I, prohibits attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” ((Article 51 (5) (b) of Additional Protocol I)) This principle has, however, not been respected in Ukraine. According to the United Nations High Commissioner for Human Rights, as at 24th February, 2022, his Office has recorded more than 8,400 civilian deaths, and over 14, 000 civilian wounded in Ukraine.34 Most of these civilian deaths and injuries, according to High Commissioner Turk, occurred as a result of the “relentless use of explosive weapons with wide area effects in populated areas.”4 This, apparently, violates the principle of proportionality, which, according to learned author Jonathan Crowe,35 regulates harmful side effects of legitimate military attacks.36 The doctrine of proportionality holds the status of customary international law, and it places an obligation on forces to assess the impact of an attack on civilian objects and refrain from attacking if the principle would be violated.37 In Ukraine, the principle of proportionality has violated, as there have been examples of both parties to the armed conflict, although to different degrees, failing to protect civilians or civilian objects against the effects of attacks, by locating military objects and forces within or near densely populated areas.

Precaution

Furthermore, it is also my observation that an analysis of the conflict in Ukraine also shows that the principle of precaution has not been fully adhered to by the parties to the conflict in Ukraine.38 The principle of precaution requires parties to a conflict to take constant care to spare the civilian population and civilian objects.39 In other words, the principle requires parties to take all feasible precaution to avoid, and in any event, to minimise incidental loss of civilian life, injury to civilians and damage to civilian objects.4 In this regard, parties must carefully select their targets, means and methods of attack, time of attack as well as evaluate the effects of an attack and ensure that advanced warnings are given to the civilian population. ((ibid)) However, in the context of the conflict in Ukraine, the principle of precaution has been blatantly and flagrantly offended on several occasions. In its report to the Human Rights Council, for instance, the International Independent Commission of Inquiry on Ukraine noted that “several attacks with explosive weapons it investigated were indiscriminate and that feasible precautions to reduce civilian harm were not taken, in violation of international humanitarian law.”40 The said Commission41 goes further to clarify that “[i]ndiscriminate attacks are those which are not directed at a specific military objective or employ method or means of combat which cannot be directed at a specific military objective or the effects of which cannot be limited as required by international humanitarian law.”42 As per the account of the Commission, the principle of precaution has not been fully observed by the parties to the conflict. In the city of Chernihiv, for instance, when the Russian armed forces surrounded the city between 25th February and 31st March, 2022, multiple indiscriminate attacks with use of explosive weapons occurred.27 Similar attacks occurred in Sumy in the context of repeated attempts by Russia armed forces to seize the city through ground battles and airstrikes.4 All of these said attacks are indiscriminate and as such, violate the principle of precaution.

Military Necessity

In addition to violation the principle of precaution, an account of the facts surrounding the conflict in Ukraine further shows that the principle of military necessity has not been fully respected by the parties to the conflict in Ukraine.43 According to the principle of military necessity, a party making an attack is permitted to use only a degree of force required to achieve the anticipated military objective that will result in minimum loss of life and property.44 However, this principle has been blatantly disregarded by the parties to the conflict, particularly the Russian forces. ((ibid, supra note 80)) To illustrate, on 7th March, 2022, in the city of Sumy, an airstrike dropped at least two bombs on a residential area, killing at least fifteen (15) civilians and injuring six (6).45 The Commission saw two impact sites, where six houses were entirely destroyed. ((ibid)) Other residential buildings were significantly damaged in a radius of more than 100 meters from where the bombs landed.4 The only potential military objective identified in the vicinity was a mobilization office, which, according to residents, was not in use at that time. ((ibid)) This apparently shows that the principle of military necessity has not been fully respected by the parties at some point. In Prosecutor v. Naser Oric,46 the Trial Chamber of the ICTY noted that the doctrine of military necessity “cannot extend to wanton destruction of civilian property, such as houses, as well as barns and outbuildings.”47

Humanity

To sum it up with the principles, it is my opinion that a violations of all the above principles in Ukraine naturally results to the violation of the principle of humanity. The principle of humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishment of legitimate military purposes.48 However, the reports and findings of investigative bodies such as the Independent International Commission of Inquiry on Ukraine and the United Nations Human Rights Monitoring Mission in Ukraine show prima facie violations of the principle of humanity. The Independent Commission, for instance, documented acts of torture of prisoners of war and interned civilians, extra-judicial or summary executions of the said persons, wanton destruction of civilian objects, and the use of excessively injurious means and methods, resulting to significant avoidable loss of civilian lives and property. ((ibid, supra note 86, at p. 16)) These facts, as reported, clearly violates the principle of humanity.

The Conflict in Ukraine and Protected Persons

International Humanitarian Law accords, in times of armed conflict, protection to civilians and other vulnerable groups. The protection of civilians in hands of the enemy or occupying power is addressed by Part III of Geneva Convention IV through what is known as the “protected persons regime.”49 Part III of Geneva Convention IV contains a detailed scheme for protecting the rights the rights of persons who find themselves under the control of a foreign or enemy power.4 The Protections under Part III of Geneva Convention IV extend to “protected persons”, defined in Article 4 of Geneva Convention IV as persons who “in any manner whatsoever find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”50 The requirement that persons be “in the hands of Party to the conflict”4 has been interpreted broadly by international tribunals, such as the ICTY in Tadic.51 It does not require that the persons in question be physically detained. ((ibid)) It is enough that such persons are located in the territory that is under the control of a party to the conflict or another occupying power.52 The protected person persons regime aims to ensure that civilians who find themselves in the hands of the enemy power are afforded certain fundamental guarantees.4 They are entitled to respect for their person, honour, family rights, religious practices and customs. ((ibid)) They are to be treated humanely and be protected against all acts or threats of violence, insults and public curiosity. However, in the context of the conflict in Ukraine, these basic protections accorded to civilians and other protected persons have not been fully respected. ((ibid, supra note 60)) The Report of the Independent International Commission of Inquiry on Ukraine and the findings of UN Human Rights Monitoring Mission in Ukraine4 reveal that civilians have been treated inhumanely, subjected to threats of violence, insults and public curiosity. ((ibid)) Worse, investigations further reveal that some civilians have been interned, tortured and even extra-judicially executed.4 In particular, violation and brutalisation of protected persons in Ukraine, among many other diverse forms, take the following forms:

Internment of civilians

In Ukraine, civilian persons have been subjected to unnecessary internments, in violation of International Humanitarian Law. ((ibid, at p. 8)) Internment of civilians was an infamous feature of World War II and led to widespread mistreatment.51 International Humanitarian Law permits the internment of civilians only in cases where it is necessary for imperative security reasons.53 Article 79 of Geneva Convention IV provides that protected persons shall not be interned except for imperative security reasons or due to the commission of an offence. However, as per the statement of the UN Higher Commissioner for Human Rights at 52nd Session of the Human Rights Council in Geneva and the findings of the UN Human Rights Monitoring Mission in Ukraine, there has been several unnecessary internments of civilians in Ukraine. In Yahidne and Chernihiv, for instance, some 365 civilians were confined in the basement of a school.54 This, apparently, violates Article 79 of Geneva Convention IV. Furthermore, even if the internment is justified, measures must be taken to ensure that shelter, hygiene, safety and nutrition for such interned persons.55 In paragraph 79 of the Report of the Independent International Commission of Inquiry on Ukraine, it is documented that internees had limited access to food, water, medical care and other basic necessities.56

Displacement of civilians

Furthermore, there is also evidence of forcible transfer of civilians, which is also a violation of International Humanitarian Law.57 International Humanitarian Law protects civilians from being forcibly deported or displaced, or transferred for reasons related to the conflict unless the security of the civilians or imperative military reasons require it.58 This is a fundamental principle is set out in Article 49 of Geneva Convention IV. However, in the context of the conflict in Ukraine, this principle has not been fully respected. In paragraph 80 of the Report of the Independent International Commission of Inquiry on Ukraine, the Commission recorded that after initial detention in Ukraine, several persons were forcibly and unlawfully deported or transferred through Belarus, or directly, to the Russian Federation.59 This is clearly violates Article 49 of Geneva Convention IV.

Lack of Care for Wounded and Sick Civilians

Part II of Geneva Convention IV provides special protections for the wounded and sick, and applies not only to protected persons, but to the whole population of countries in conflict.60 The application of this Part of Geneva Convention IV is not, therefore, conditioned on considerations of nationality or relationship with a party to the conflict.

Article 8 of Additional Protocol I defines sick and wounded persons as those who, due to trauma, disease or other physical or other mental disability, are in need of assistance or care and who refrain from any form any act of hostility.61 Articles 6 and 10 of Additional Protocol I extend similar protections to infirm persons and expectant mothers. In Ukraine, however, notwithstanding these rules, sick and wounded persons, including children, have not been properly assisted or cared for, owing to the parties’, mostly Russian forces’, indifference about their plights. In paragraph 102 of its Report, the International Independent Commission of Inquiry on Ukraine found that some seventy (70) children, some of whom sick, were confined in the basement of a school in Yahidne for 28 days without access to any form of medical assistance.62 In addition, the UN Office of the High Commissioner for Human Rights recorded 9, 602 wounded in all of Ukraine since 24th February, 2022, and most of these wounded individuals were not given medical care.63

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The Means and Methods: To What Extent Do the Parties Adhere to the Rules?

As outlined in the opening segment of this paper, in addition to protecting the people who are not or no longer taking part in the hostilities, International Humanitarian Law also seeks to restrict the means and methods of warfare.64 This is in accordance with Article 22 of the Hague Regulations, which provides that the means and methods of warfare are not unlimited; in particular, means and methods that cause superfluous and unnecessary injuries to civilians and/or severe damage to the natural environment are prohibited.65 However, in the context of the conflict in Ukraine, this fundamental principle is largely not respected, as the parties, albeit to a varying degree, employ means and methods prohibited by International Humanitarian Law. ((ibid, supra note 60)) These prohibited means and methods employed by the parties to the conflict in Ukraine include starvation, sexual violence, forceful deportation, the use of monition clusters and the use of landmines.4 The said means and methods are distinctly examined below:

a. The Prohibited Methods of Warfare Employed in Ukraine

On the prohibited methods, Article 54 of Additional Protocol I prohibits attacks against objects essential to the survival of the civilian population. Notwithstanding this, forces in Ukraine have attacked objects that are essential to the survival of civilian population. In Ukraine, the conflict—fighting in and attacks of cities—affected a significant part of establishments indispensable to civilian survival.66 To exemplify, several hospitals, which have protected status under the Geneva Conventions of 1949, have been destroyed or damaged by shelling. The Independent International Commission of Inquiry on Ukraine, in its report to the Human Rights Council, documented damage or destruction of five hospitals, three (3) in Chernihiv, one (1) in Sumy and one (1) in Kharkiv—four of the said hospitals were operational at the time they were hit by explosive weapons.67 In addition to this, the Independent International Commission of Inquiry on Ukraine revealed that the confinement of civilians by soldiers resulted to the former’s lack of access to food, water, and other basic necessities. ((ibid, at p. 14)) This is apparently against Article 54 of Additional Protocol I, which prohibits starvation as a method of warfare.

Furthermore, the use of human shields was another prohibited method of warfare employed in Ukraine. According to the Independent International Commission of Inquiry on Ukraine, “in several cases, Russian armed forces appear to have deliberately position their troops or equipment in residential areas or near civilians to reduce the likelihood of attack.”68 In the village of Kozarovychi, for instance, in the Kyiv Province, an old woman reported that when the Russian armed forces arrived there in late February, soldiers came to her house with orders to find hiding places for their vehicles. ((ibid, at p. 20)) Similarly, in the village of Lypivka, in Kyiv Province, a woman and her daughter said that when the Russian armed forces occupied the area on 28th February, soldiers parked one military vehicle identified as a tank next to their house while the woman and her daughter hid in the basement. ((ibid)) The Russian forces used a similarly tactic in March, 2022, in the village of Yahidne, in Chernihiv Province, where they placed military vehicles between civilian houses and fired at Ukrainian positions from civilians’ backyards.4 Additionally, the soldiers also confined some three hundred and sixty-five (365) civilians in the basement of a school, while they established their headquarters on the ground-floor of the same building, and launched attacks on Ukrainian positions from the ground-floor of the school, placing hundreds of civilians confined in the building at significant risk. ((ibid, supra note 124)) This apparently amounts to the use of human shields and as such, qualifies as a prohibited method of warfare.

In addition, sexual violence was another prohibited method of warfare employed in Ukraine. The Independent International Commission of Inquiry on Ukraine victims, ranged from forty (40) to eighty (80) years, have been subjected to rape. (( ibid, at p. 16)) In Kyiv Province, for instance, in March, 2022, two Russian soldiers entered a home, raped a 22-year-old woman multiple times, committed acts of sexual violence on her husband and forced the couple to have sexual intercourse in their presence. ((ibid, at pp. 16-17)) Worse of it all, one of the said soldiers forced their 4-year-old to perform oral sex on him.4 In another village in Kyiv Province, at the beginning of March, 2022, a Russian soldier entered the house of a 50-year-old woman, and raped her after shooting dead her husband who tried to intervene.4 In Chernihiv and another province, the International Independent Commission of Inquiry on Ukraine reported that there have been allegations of rape of 80 and 83-year-old women in Ukraine.4

Forcible deportation is another prohibited method of warfare employed in Ukraine, mostly by the Russian armed forces. In paragraph 80 of the Report of the Independent International Commission of Inquiry on Ukraine, the Commission documented that several individuals were unlawfully detained and subsequently forcibly transferred through Belarus, or directly, into the Russian Federation.69 This forcible transfer of civilians is a prohibited method of warfare and a violation of Article 49 of Geneva Convention IV.

b. The Prohibited Weapons Used in Ukraine

In addition to the use of the prohibited methods of warfare discussed above, the parties to the conflict in Ukraine equally use, although to a varying degree, weapons that are prohibited under International Humanitarian Law. ((Mary Wareham, Intense and Lasting Harm Cluster Munition Attacks in Ukrain (Human Rights Watch, 350 Fifth Avenue, New York, NY 10118-3299 USA) available at www.hrw.org/report/2022/05/11/intense-and-lasting-harm/cluster-munition-attacks-ukraine accessed on 4th July, 2023 at 11:05 am)) According to an investigation conducted by Human Rights Watch, since Russia’s invasion of Ukraine on February, 2022, the Russian forces have used at least six (6) types of cluster munitions in attacks that have resulted in hundreds of civilian casualties and damage to civilian objects, including homes, hospitals and schools. ((ibid)) Similarly, there is evidence of Ukrainian forces using cluster munitions at least once.4 For the Russian forces, the exact number of times they used cluster munitions is not known, but hundreds of have been documented, reported or alleged to have occurred, mostly in densely populated civilian settlements.4 In the city of Mykolaiv, for instance, Russian forces launched cluster munition rockets into densely populated areas on 7th, 11th, and 13th  March, 2022, killing and injuring civilians, and damaging civilian objects, such as homes, businesses, and private vehicles.4 The use of munition rockets on March 13 killed nine (9) people who were waiting in queue a cash machine.4 The 2008 Convention on Cluster Munitions prohibits the use of cluster munitions due to their indiscriminate effects and the long-lasting danger they pose to the civilian population.70 The said Convention on Cluster Munition provide a comprehensive ban on cluster weapons and require the destruction of stockpiles, clearance of the areas contaminated by cluster munition remnants, and assistance to victims.71 However, as the date of writing this paper,72 neither Russia nor Ukraine is among the Convention’s 110 State Parties.73 Notwithstanding this, and with full regard to the general principle of treaty law embedded in Article 34 of the Vienna Convention on the Law of Treaties (non-binding nature of unratified treaties), it is my belief that the use of cluster munitions in populated areas invariably violates International Humanitarian Law in that it falls under the category of weapons that cannot distinguish or discriminate between civilians and combatants.

In addition to the use of cluster munitions, the use of landmines in Ukraine have equally been documented. According to Ukraine’s State Emergency Service, a total of 98, 864 items of unexploded ordnance, including submunitions and landmines have been cleared and destroyed in the war, as at May 9, 2022. ((ibid)) The Human Rights Watch further reported that during the first week of the conflict (between 24th February-3rd March, 20222), twenty-nine (29) workers were killed while doing demining and other related work and seventy-three (73) injured. ((ibid)) According to the findings of Human Rights Watch and the Organisation for Security and Co-operation in Europe Monitoring Mission, both Ukraine and Russia have use landmines in earlier conflicts in July 2014 and February 2015 in Ukraine.4 The use of such weapons is against the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997).74 Aside the said instruments, the International Court of Justice, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,75 stated that States must “never use weapons that are incapableof distinguishing between civilian and military targets.”76 The ICTY has consistently followed the same approach.77

Protection of Cultural Sites, Edifices and Objects in Context of the Conflict

In addition to protecting civilians and their objects, International Humanitarian Law equally accords protection to objects and sites with that have cultural significance.78 For quite a long time, protecting culturally significant objects and buildings from warfare has been a concern of International Humanitarian Law.4 According to Article 27 of the Hague Regulations, “all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purpose [and] historic monuments.” ((Article 27 of the Hague Regulations)) Article 53 of Additional Protocol I provides for a similar protection, providing that “it is prohibited to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples…”79 However, in Ukraine, the said rules are not fully respected by the parties to the conflict. According to Human Rights Watch, the Russian armed forces and civilians operating under their command pillaged thousands of valuable artefacts and artworks from two museums, cathedral, and a national archive in Kherson, before withdrawing after an eight-month occupation of the said city. ((Human Rights Watch, Ukraine: Russians Pillage Kherson Cultural Institutions available at https://www.hrw.org/news/2022/12/20/ukraine-russians-pillage-kherson-cultural-institutions accessed on 6th July, 2023, at 23:50)) Further, since Russia’s full-scale invasion of Ukraine in late February 2022, its armed forces have repeatedly looted cultural items—including paintings, gold, silver, ancient Greek artefacts, religious icons and historical documents—from at least five cultural institutions in Ukraine.4 When the Russian armed forces occupied the region between March 2nd to November 11th, 2022, the said forces pillaged the Kherson Regional Art Museum, the Kherson Regional Museum, St. Catherine’s Cathedral, and the Kherson Regional National Archives.4 Evidently, the forgoing accounts establish grave breaches of International Humanitarian Law and even amount war crimes as defined in the Rome Statute of the International Criminal Court. ((ibid)) Rule 40 of the International Commission of Red Cross Study on customary international humanitarian law provides that wilful damage, theft or vandalism of cultural property is prohibited. ((Rule 40 of the ICRC Study on customary international humanitarian law)) Similarly, Article 4 (1) of the 1954 Hague Convention on Cultural Property obliges parties to refrain from acts that would expose cultural property to “destruction or damage in the event of armed conflict.”80

Environmental Protection in Ukraine

In addition to the protection of persons and objects, International Humanitarian Law equally embodies rules that protect the natural environment from consequences of armed attack.81 Some of these principles protect the natural environment in its own rights while others protect the environment in light of its importance to the health and welfare of civilians.4 Article 35 of Additional Protocol I prohibits means and methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.82 In Ukraine, although not yet established, there have been allegation of use of chemical weapons. Such allegations, if supported with the required evidence, constitute violations of International Humanitarian Law, as the use of chemical weapons is indeed a great threat to the natural environment. In addition, the United Nations Office of the High Commissioner on Human Rights has raised concerns over a nuclear power plant in Zaporizhzhia being at enormous risk, with potential hazardous impact on millions of people within and outside Ukraine. Parties to the conflict should be mindful of prohibition on attacks against dangerous forces such as nuclear power plants. ((ibid, supra note 45))

Distinctive Emblems: How Respected?

Articles 39, 43, and 18 of Geneva Convention I, Geneva Convention II and Additional Protocol I, respectively, require the distinctive emblems to be displayed on the flags and other equipment of medical services. Articles 40, 42, and 18 of Geneva Convention I, Geneva Convention II, and Additional Protocol I require medical personnel to bear such emblems on armlets and identity cards. The said provisions of the Geneva Conventions accord protection to objects bearing any of the recognised distinctive emblems. This protection operates against indiscriminate attacks and wanton destruction of such objects.83 These protected objects, among others, include hospitals, medical equipment, and medical personnel.4 However, so far as the conflict in Ukraine is concerned, it is very obvious from the findings of investigative bodies that the protections accorded to these said objects bearing distinctive emblems has not been fully respected. In paragraphs 36, 40, 41 & 48 of the Report of the Independent International Commission of Inquiry on Ukraine, the Commission documented several attacks and destructions of hospitals. Some these hospitals—in regions such as Cherniv, Sumy and Kharkiv—were operational at the time they were struck by cluster munitions, and that resulted in the injury and even death of both medical personnel and their patients as well as destruction of key medical equipment.84 This clearly violates Article 18 of Geneva Convention IV, which provides that hospitals and their staff shall be protected.

Elements of Non-International Armed Conflict in Ukraine

In Ukraine, although most media reports and findings of investigative bodies are focused on the international armed conflict between the Russian Federation and Ukraine, a deeper and more careful analysis of the conflict would show that, although overshadowed by the international armed conflict, there are also elements of non-international armed conflict in Ukraine.85 In 2013, protests erupted in the Ukrainian capital, Kyiv, against the Ukrainian President Viktor Yanukovych’s decision to reject a deal for greater economic integration with the European Union, and such protests were met with violent crackdown by the Ukrainian security agents. The protests widened, escalating the conflict, and President Yanukovych fled the country in February 2014.4 In March 2014, the crisis heightened the ethnic divisions in Ukraine, and the pro-Russian separatists in the eastern Ukrainian regions of Donetsk and Luhansk held their own independence referendums. Armed conflict in the regions quickly broke out between the Russian-backed forces and the Ukrainian armed forces. This conflict transitioned to an active stalemate, with regular shelling and skirmishes occurring along frontlines separating and Ukrainian controlled eastern border regions. Apparently, this conflict meets the criteria of non-international armed conflict as defined in Article 1 of Additional Protocol II. In consequence, the protections under Common Article 3 to the Geneva Conventions of 12 August 1949 fully apply. As such, the parties to the conflict are bound, as a minimum, to refrain from all acts of torture and violence against protected persons, including those placed hors de combat;86 outrages upon personal dignity;4 and taking of hostages are prohibited in the context of the non-international armed conflict.4

Conclusion and Recommendations

In conclusion, the above analysis on the conflict in Ukraine shows that there have been grave breaches of International Humanitarian Law, particularly the Geneva Conventions of 12 August, 1949. With distinct precision and remarkable accuracy, my analysis has pointed out violations of the fundamental principles of International Humanitarian Law, including, but not limited to, distinction, precaution, proportionality, limitation and military necessity. The indiscriminate bombardment and shelling with wide-area impact destructive explosive weapons of civilian settlements and objects in Ukrainian cities such as Kyiv, Kharkiv, Sumy, and Chernihiv among others, as documented by the Independent International Commission of Inquiry and the UN Human Rights Monitoring Mission in Ukraine, amount to grave breaches of International Humanitarian Law. Similarly, the use of means and methods of warfare excessively injurious to both humans and the natural environment is equally amounts to a violation of basic International Humanitarian Law principles. These flagrant and blatant breaches of International Humanitarian Law are not unnoticed and must not go unpunished. With a view to ensuring accountability for breaches of International Humanitarian Law in Ukraine and undoing the effects of the conflict as far as practically possible, I herein below recommend the following:

See also  Section 175 of the 1999 Constitution: an Antagonist of Judicial Powers

Conduct further independent Inquiry on Ukraine

In addition to the preliminary findings made by the International Independent Commission of Inquiry on Ukraine and the UN Human Rights Monitoring Mission in Ukraine, I recommend, with support from the United Nations, more robust and detailed investigations be conducted on the conflict in Ukraine, with the ultimate aim of holding perpetrators to account. It is my candid opinion that further independent investigations to unearth the whole truth about what transpired in Ukraine will reveal more perpetrators that are currently identified and will ease their prosecution.

Prosecution by the International Criminal Court

After further independent investigations are conducted to establish the full extent and nature of the violations of International Humanitarian Law in Ukraine, the principal perpetrators responsible for the gravest breaches of International Humanitarian Law should be indicted and arrest warrants issued against them for their prosecution at the International Criminal Court. The findings of the independent investigative bodies referred to above reveal facts amounting to war crimes and crimes against humanity, all of which meet their respective elements as defined in the Rome Statute. However, I must note that there may be obstacles in relation to the territorial and temporal reach of the Court’s jurisdiction, since both the Russian Federation and Ukraine are note parties to the Rome Statute as at the day of writing this paper.

Establishment of a Hybrid Court

Where prosecutions at the International Criminal Court as recommended above proves impossible for whatever reason, I recommend, as an alternative, the establishment of a hybrid court modelled on the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda for the prosecution of the perpetrators responsible for the most serious breaches of International Humanitarian Law. Taking into account the grate resources and expertise required for the effective functionality of such hybrid court, its success would fundamentally depend on the goodwill of the United Nations and individual States. The United Nations, as it did with the with the Special Tribunal for Sierra Leone and Special Tribunal for Rwanda, would need to give technical and financial support to such hybrid court.

Prosecution by Local Courts

In addition to the above-named prosecutorial techniques, local courts of Ukraine principally and other States where perpetrators find themselves should take it upon themselves to prosecute those responsible for breaches of International Humanitarian Law over which they can assert universal jurisdiction. The Independent Commission of Inquiry on Ukraine has documented several acts of torture, and torture is one of the many violations over which universal jurisdiction can be exercised, as exemplified by the recent case against Osman Sonko, former Gambian Interior Minister, currently standing trial in Germany. ((Trial International, Universal Jurisdiction Database Ousman Sonko available at https://trialinternational.org/latest-post/ousman-sonko-2/ accessed on 6th July, 2023, at 3:00 pm))

Rehabilitation of and Support to the Victims of the Conflict

Following or alongside the prosecution of perpetrators, victims of the conflict in Ukraine should be given the required moral, financial and emotional support to get over the trauma and pain they had experienced. This support, in my opinion, will undo as far as possible or at least minimise the effects of the conflict on victims.

Memorialisation of Traces of the Conflict

After deeper independent investigations are conducted, detailing the full extent and nature of the violations of International Humanitarian Law, reports of such investigation and all other materials of evidential value should be memorialised. In my opinion, memorialisation of such would go a long way in ensuring the perpetual remembrance of the conflict, its effects and victims. Having such painted in the minds of people, particularly Ukrainians, could help forestall future similar occurrences, as it may ignite the desire to advocate against war and violation of International Humanitarian Law in the event of war.

Awareness Campaign on IHL

After the war comes to an end or while the war is still raging, efforts should be put together to ensure the spread of knowledge of International Humanitarian Law principles, particularly among soldiers and other persons directly participating in the hostilities. With this, I believe that some violations of International Humanitarian Law in this conflict or any other could be averted. It is my opinion that this campaign can be spearheaded by the International Red Cross Society and other affiliated bodies.

BIBLIOGHRAPIC REFERENCES:

A. International Instruments:

i. Geneva Convention (I) on Amelioration of the Conditions of the Wounded and the Sick in the Armed Forces in the Field of 12 August 1949

ii. Geneva Convention (II) on the Amelioration of the Conditions of the Wounded, the Sick and Shipwrecked in the Armed Forces at Sea of 12 August 1949

iii. Geneva Convention (III) Relative to the Protection of Prisoners of War of 12 August 1949

iv. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949

v. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, 1977 (Protocol I)

vi. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflict, 1977 (Protocol II)

vii. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Adoption of an Additional Distinctive Emblem, 2005 (Protocol III)

viii. Convention on Cluster Munitions of 2008

ix. Lieber Code

x. Hague Air Warfare Rules of 1924

xi. Rome Statute Establishing the International Criminal Court

xii. The Convention Against Torture

xiii. The Vienna Convention on the Law of Treaties

xiv. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 1997

xv. The Hague Convention on Cultural Property of 1954

xvi. The Hague Regulations

B. Cases/Precedents:

i. Prosecutor v. Tadic Prosecutor v Tadić, ICTY Appeals Chamber Decision on Jurisdiction, 2 October 1995

ii. Prosecutor v. Kunarac, ICTY Appeals Chamber Judgment, 12 June 2002

iii. Prosecutor v. Mile Mrksic et al., Trial Judgement, IT-95-13/1-T, 27 September 2007

iv. Prosecutor v. Naser Oric, Trial Judgement, IT-03-68-T, 30 June 2006

v. ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996

vi. Prosecutor v. Stanislav Galic, Trial Judgement, IT-98-29-T, 5 December 2003, para. 58

C. Books:

i. J. Crowe and K. Weston-Scheuber, Principles of International Humanitarian Law (Edward Elgar Publishing Limited, The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK)

ii. Iain Bonomy, Principles of Distinction and Protection at the ICTY (Torkel Opsahl Academic, EPublisher, Oslo)

iii. Commonwealth Parliamentary Association, International Humanitarian Law: A Handbook for Commonwealth Parliamentarians (CPA Headquarters Secretariat, Richmond House, Houses of Parliament, London SW1A0AA, United Kingdom)

iv. Jean S Pictet et al (eds), Commentary on the Geneva Conventions (ICRC 1960) vol 4

D. Reports of international bodies:

i. Report of the International Independent Commission of Inquiry on Ukraine

ii. Statement of the United Nations High Commissioner for Human Rights at the 52nd Session of the Human Rights Council in Geneva

iii. UN Human Rights Monitoring Mission in Ukraine (HRMMU) and covers the period from 24 February until 15 May 2022

iv. Council of Europe’s High Commissioner for Human Rights Memorandum on the Human Rights Consequences of the War in Ukraine, available at https://www.coe.int/en/web/commissioner/-/the-commsioner-publishes-her-memorandum-on-the-human-rights-consequences-of-the-war-in-ukraine accessed on the 4th July, 2023 at 9:00 am

E. Articles:

i. Stephen P. Mulligan, The Law of War and the Russian Invasion of Ukraine (Congressional Research Service)

ii. Dr. Arakelian Minas, Prohibited means and methods of armed conflicts (National University “Odessa Law Academy”)

iii. International Committee of Red Cross, International Humanitarian Law Questions and Answers available at www.icrc.org accessed on the 2nd July, 2023 at 11:11 am

iv. Jeffrey Mankoff, Russia’s War in Ukraine: Identity, History, and Conflict (Centre for Strategic and International Studies) available at www.csis.org/analysis/russias-war-ukraine-identity-history-and-conflict accessed on 3rd July, 2023 at 11:25 am

v. Human Rights Watch, Ukraine: Russians Pillage Kherson Cultural Institutions available at https://www.hrw.org/news/2022/12/20/ukraine-russians-pillage-kherson-cultural-institutions accessed on 6th July, 2023, at 23:50

vi. Center for Preventive Action, War in Ukraine (Global Conflict Tracker, March 16, 2023) available at www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine accessed on 5th July, 2023, at 9:37 pm

vii. Human Rights Watch, Ukraine: Russians Pillage Kherson Cultural Institutions available at https://www.hrw.org/news/2022/12/20/ukraine-russians-pillage-kherson-cultural-institutions accessed on 6th July, 2023, at 23:50

viii. Trial International, Universal Jurisdiction Database Ousman Sonko available at https://trialinternational.org/latest-post/ousman-sonko-2/ accessed on 6th July, 2023, at 3:00 pm


About Author

Muhammed Ceesay is currently a Barrister-at-Law (BL) Candidate at The Gambia Law School. Prior to his joining of The Gambia Law School, Muhammed attended the University of The Gambia, where he graduated Magna Cum Laude. Muhammed has great interest in International Human Rights and Humanitarian Laws, and has actively taken part in discussions on the said area both in The Gambia and outside The Gambia—in places such as Uganda, South Africa, and recently, the United Kingdom.

  1. J. Crowe and K. Weston-Scheuber, Principles of International Humanitarian Law (Edward Elgar Publishing Limited, The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK) at p. 1 []
  2. International Committee of Red Cross, International Humanitarian Law Questions and Answers available at www.icrc.orgaccessed on the 2nd July, 2023 at 11:11 am. []
  3. Commonwealth Parliamentary Association, International Humanitarian Law: A Handbook for Commonwealth Parliamentarians (CPA Headquarters Secretariat, Richmond House, Houses of Parliament, London SW1A0AA, United Kingdom) at p. 4 []
  4. ibid [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] []
  5. ibid, supra note 3 [] []
  6. Report of the International Independent Commission of Inquiry on Ukraine p. 6 []
  7.  ibid []
  8. ibid) and denazify ((ibid) Ukraine and end the alleged genocide of Russians in Ukrainian territory. Putin gave a bizarre and at times unhinged speech, outlining an extensive list of grievances as justification for the military operation. ((Jeffrey Mankoff, Russia’s War in Ukraine: Identity, History, and Conflict (Centre for Strategic and International Studies) available at www.csis.org/analysis/russias-war-ukraine-identity-history-and-conflict accessed on 3rd July, 2023 at 11:25 am []
  9. ibid, supra note 7 []
  10. Stephen P. Mulligan, The Law of War and the Russian Invasion of Ukraine (Congressional Research Service) at p. 1 []
  11. ibid, supra note 15, at p. 2 []
  12. ibid, supra note 18, at p. 7 []
  13. Council of Europe’s High Commissioner for Human Rights’ Memorandum on the Human Rights Consequences of the War in Ukraine, available at https://www.coe.int/en/web/commissioner/-/the-commsioner-publishes-her-memorandum-on-the-human-rights-consequences-of-the-war-in-ukraine accessed on the 4th July, 2023 at 9:00 am []
  14. ibid, supra note 21 []
  15. Report of the International Independent Commission of Inquiry on Ukraine, p. 8 []
  16. Prosecutor v Tadić, ICTY Appeals Chamber Decision on Jurisdiction, 2 October 1995 [] []
  17. ibid, at para. 67 []
  18. ibid, at para. 70 []
  19. ibid, supra note 30, at p. 6 []
  20. The laws regulating the weapons of warfare []
  21. Findings of the International Independent Commission of Inquiry reveals an array of violation of International Humanitarian Law []
  22. ibid, supra note 1, at p. 66 []
  23. In its resolution 49/1 of 4 March 2022, the Human Rights Council decided to urgently establish an independent international commission of inquiry to investigate all alleged violations and abuses of human rights and violations of international humanitarian law and related crimes in the context of the aggression against Ukraine by the Russian Federation. The Council mandated the Commission to establish the facts, circumstances and root causes of such violations, and, where possible, to identify those responsible, as well as to make recommendations, in particular on accountability measures. [] []
  24. ibid, supra note 36 []
  25. United Nations High Commissioner for Human Rights, UN Commission has found an array of war crimes, violations of human rights and international humanitarian law have been committed in Ukraine available on https://www.ohchr.org/en/press-releases/2022/10/un-commissionn-has-found-array-war-crimes-violations-human-rights-and accessed on 6th February, 2023, at 13:00 []
  26. ibid, supra not 43, at p. 9 []
  27. ibid, at p. 10 [] []
  28. Prosecutor v. Mile Mrksic et al., Trial Judgement, IT-95-13/1-T, 27 September 2007, para. 509 []
  29. ibid, at para. 473 []
  30. The Report of the Independent Commission of Inquiry on Ukraine shows, at page 2, grave violations of International Humanitarian Law, including the principle of limitation as encapsulated in Article 35 of Additional Protocol I []
  31. Protocol Additional to the Geneva Conventions of 12th August 19449 and Relating to the Protection of Victims of International Armed Conflict []
  32. ibid, supra note 57, at p. 2 []
  33. Prosecutor v. Stanislav Galic, Trial Judgement, IT-98-29-T, 5 December 2003, para. 58 []
  34. ibid, supra note 50 []
  35. ibid, supra note 1 []
  36. ibid, at p. 60 []
  37. Article 57 (2) of Additional Protocol I []
  38. ibid, supra note 60 []
  39. ibid, supra note 68, at p. 65 []
  40. ibid, supra note 51, at p. 9 []
  41. The International Independent Commission of Inquiry on Ukraine []
  42. ibid, supra note 75 []
  43. ibid, supra note 71 []
  44. ibid, supra note 72 []
  45. ibid, at page 10 []
  46. Prosecutor v. Naser Oric, Trial Judgement, IT-03-68-T, 30 June 2006, para. 587. []
  47. ibid, at paras. 606-607 []
  48. Commonwealth Parliamentary Association, International Humanitarian Law: A Handbook for Commonwealth Parliamentarians (CPA Headquarters Secretariat, Richmond House, Houses of Parliament, London SW1A0AA, United Kingdom) p. 8 []
  49. ibid, supra note 72, at p. 88 []
  50. Article 4 of Geneva Convention IV []
  51. ibid, supra note 91 [] []
  52. Jean S Pictet et al (eds), Commentary on the Geneva Conventions (ICRC 1960) vol 4, p. 50 []
  53. Article 79 of Geneva Convention IV []
  54. Report of the International Independent Commission of Inquiry on Ukraine, p. 11 []
  55. ibid, at p. 14 []
  56. ibid, at p. 15 []
  57. ibid, supra note 100 []
  58. ibid, supra note 1, at p. []
  59. ibid, supra note 109 []
  60. Part II of Geneva Convention (IV) Relative to the Protection of Civilians in Times of War []
  61. Article 8 of Additional Protocol I []
  62. ibid, supra note 112, at p. 18 []
  63. ibid, at p. 7 []
  64. ibid, supra note 74 []
  65. Also see Article 35 of Additional Protocol I []
  66. ibid, at p. 9 []
  67. ibid, at para. 41 []
  68. ibid, at p. 11 []
  69. ibid, supra note 112 []
  70. See Article 1 (1) (a) of the Convention on Cluster Munition of 2008 []
  71. ibid, at Article 1 (1) (a), (b) & (c) []
  72. 2nd July, 2023 []
  73. ibid, supra note 140 []
  74. See Article 1 of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction of 1977 []
  75. ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, para. 78 []
  76. ibid, at para. 78 []
  77. Iain Bonomy, Principles of Distinction and Protection at the ICTY (Torkel Opsahl Academic, EPublisher, Oslo) p. 30 []
  78. J. Crowe and K. Weston-Scheuber, Principles of International Humanitarian Law (Edward Elgar Publishing Limited, The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK) at p. 68 []
  79. Article 53 of Additional Protocol I []
  80. Article 4 (1) of the 1954 Hague Convention on Cultural Property []
  81. ibid, supra note 152 []
  82. Article 35 of Additional Protocol I []
  83. See Article 39 of Geneva Convention I; Article 43 of Geneva Convention II; and Article 18 of Additional Protocol II []
  84. ibid, supra note 133, at pp.9-10 []
  85. Center for Preventive Action, War in Ukraine (Global Conflict Tracker, March 16, 2023) available at www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine accessed on 5th July, 2023, at 9:37 pm []
  86. Common Article 3 of the Geneva Conventions of 12 August 1949 []

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