Introduction
It is no news that Russia and Ukraine have been on a renewed spate of armed conflict which has remained destructive and daring after Putin approved what he termed a “special military operation” in Ukraine. The attacks began on Thursday, the 24th day of February after Russian president Vladimir Putin said in a televised address that he had approved a “special military operation” in Ukraine. The move came after Moscow earlier recognized rebel-held territories in Luhansk and Donetsk and said they had asked for its “help”.
In follow up to the approval is the Russian missiles that rained down on Ukrainian cities with massive invasion by land, air and sea. Ukraine reported columns of troops poured across its boarders into eastern Chernihiv, Kharkiv and Luhansk regions, and landing by sea at the cities of Odesa and Mariupol in the south.
Since the start of the war, promising lives both on the side of combatants and noncombatants have been lost. Critical infrastructures including but not limited residential houses have been hit and destroyed by Russian missiles. Of course the devastating effects of war and its accompanied humanitarian crises are issues that should take war off the table even in the face of provocation and breach of diplomacy.
The Russian continued assault on Ukraine have forced several countries to place economic sanction on the country aimed to down their financial and military muscles in prosecuting the ongoing war against Ukraine. Notable among these countries are the United States, the United Kingdom, France, Japan among others while China, Brazil, North Korea and others continued to standard aloof while seeking diplomatic means in ending the conflict.
Only recently, about 140 member states at the United Nations General Assembly voted against Russia on its military campaign in Ukraine.
Voices across boarders have condemned the renewed conflict between Russia and Ukraine. Some had traced it to political interest of Moscow while others held that the campaign became necessary for Moscow because of the palpable fear of Putin on the security of Russia and Russians having NATO forces on Russian boarders by virtue of the renewed interest of Kyiv in Joining the White House led organization. It is in the light of the ongoing battle to take-over and install and battle of defence in Ukraine that this article aim at taking a voyage on armed conflict and human rights in Ukraine visa-vis international law. To x-ray where Russia got it wrong by outlining the principles governing war and to recommend strong measures the United Nations should put in place in order to avoid future re-occurrence.
The International Law Governing an Armed Conflict Between Russia and Ukraine Hostilities between Russian armed forces and Ukrainian armed forces constitute an international armed conflict governed by international humanitarian treaty law (primarily the four Geneva Conventions of 1949 and its first additional protocol of 1977 (Protocol I), and the Hague Conventions of 1907 regulating the means and methods of warfare), as well as the rules of customary international humanitarian law. The rules of war are universal.
The Geneva Conventions (which are the core element of IHL) is ratified by all 196 states. Very few international treaties have this level of support. Although, this laws do not aspire to outlaw war but to regulate how wars are fought, balancing two aspects: weakening the enemy and limiting suffering. It is important to note that both Ukraine and Russia are parties to the 1949 Geneva Conventions and Protocol I.
The Basic Principles of the Laws of War International humanitarian law also known as the laws of war, provides protections to civilians and other noncombatants from the hazards of armed conflict. It set out what can and cannot be done during armed conflict. It also addresses the conduct of hostilities, the means and methods of warfare by all parties to a conflict. Foremost is the rule that parties to a conflict must distinguish at all times between combatants and civilians.
Civilians may never be the deliberate target of attacks. Parties to the conflict are required to take all feasible precautions to minimize harm to civilians and civilian objects and not to conduct attacks that fail to distinguish between combatants and civilians, or would cause disproportionate harm to the civilian population.
The main purpose of International humanitarian law (IHL) is to maintain some humanity in armed conflicts, saving lives and reducing suffering. To do that IHL regulates how wars are fought, and set out three principles namely: Distinction, Proportionality and Precautions.
These principles are complementary, they work together to limit destruction and suffering and all must be respected for war to be lawful.
Distinction: This principle prohibits directs attacks on civilian objectives. Civilians, residential areas, church, mosque, hospitals, schools etc. are protected and prohibited from attack during war. This is aimed at reducing numbers of casualty on the side of noncombatants who are not directly involved in the war. Hence at all time, combatants involve in war must clearly distinguish subjects of target and attack, on this note, attack on military objectives are lawful.
Precautions: The principle mandates combatants and prosecutors of war to employ care to make sure civilian objectives and population are not harmed.
Proportionality: This principle prohibits attacks that violate proportionality. An attack is disproportionate if it may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
Application of International Human Rights Law in Ukraine
International human rights law remains in effect and continues to apply at all times, including during armed conflict and occupation, to which the laws of war also apply. In some circumstances a humanitarian law norm may trump a human rights norm, as the lex specialis, or the more specific norm for the particular circumstance.
Ukraine and Russia are both party to a number of regional and international human rights treaties, including the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
These treaties guarantees for fundamental rights, many of which correspond to the rights to which combatants and civilians are entitled under international humanitarian law (e.g. the prohibition on torture and inhuman and degrading treatment, the requirements for nondiscrimination, the right to a fair trial). Even in the face of war, the provisions of these treaties are expected to be respected by both, especially rights of noncombatants and civilians in war zone.
Lawful Target of a Military Attack
The laws of war limit attacks to “military objectives.” Military objectives are personnel and objects that are making an effective contribution to military action and whose destruction, capture, or neutralization offers a definite military advantage. This would include enemy fighters, weapons and ammunition, and objects being used for military purposes, such as buildings and vehicles. While humanitarian law recognizes that some civilian casualties are inevitable during armed conflict, it imposes a duty on parties to the conflict at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives.
Civilians lose their immunity from attack during the time they are “directly participating in the hostilities” such as by assisting combatants during battle.
The law also protects civilian objects which include anything not considered as military objective. Attacks on homes, apartments, places of worship, schools, hospitals, recreational centers, airports, and cultural monuments etc. are prohibited. However, where these places mentioned are used to house weapon and for purpose other than civilian objectives, it becomes military objects and vulnerable to attack and attackers will not be hold responsible for any destruction in this instance. It is important to state that where there is doubt about the nature of an object, the warring party must presume it to be civilian. Kinds of Military Attacks that are Prohibited Direct attacks on civilians and civilian objects, as discussed above, are prohibited. The laws of war also prohibit indiscriminate attacks. Indiscriminate attacks are those that strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective.
These include but not limited to bombardment without adequate target of location. Indiscriminate shelling of places without proper investigation and target. It should be noted that where it is discovered the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, such weapon should not be use. Where Russia got it wrong Kyiv has at different occasion accuse Moscow of purposefully targeting civilians and civilians’ objectives in the ongoing war between the two countries. Russia on its part accused Ukraine of “shielding”.
The war crime of “shielding” has been defined as intentionally using the presence of civilians to make certain points, areas, or military forces immune from military attack. While it may be unlawful, as noted above, to place forces, weapons and ammunition within or near densely populated areas, it is shielding only when there is a specific intent to use the civilians to deter an attack.
In as much as Russia may have a case against the Ukrainian government in this regard, there have been cases of indiscriminate targeting of civilians and civilians objectives in Ukraine by the Russian forces.
As buttressed herein, it is wrong and punishable to attack civilians and civilians’ objects. Since the war began, there have been reports of indiscriminate shelling of nonmilitary objectives, including but not limited to the bombardment of residential homes, hospitals, schools, airports and the killing of a UK journalist by the Russian forces who was not part of the war.
These and many more which Russia failed to carefully observe made the prosecution of the ongoing war in Ukraine offends the laws of war thereby violating human rights and bringing them to contention with the laws. Conclusion War has never been and it would never be a lasting solution to political differences and interest of any kind.
Although, War is not forbidden, as traced to the fact that various International laws as examined in this article has neither out rightly nor tacitly outlaw war, however, the idea of war should not be sold and bought. From time immemorial nations had been involved in war for various reasons which includes but not limited to freedom, wealth, security, defence, liberation etc. The devastating effect of war accompanied with its massive humanitarian crisis are lessons that should make every man and nation shield the sword and uphold dialogue.
The principles of international humanitarian law with other conventions and treaties, as examined in this article regulates how war should be fought. It stipulates simpliciter the dos and don’ts in prosecuting war.
It is line with this, that this research emphasized Distinction, Precaution and Proportionality as three basic principles employed by IHL to minimize destruction and civilian casualties during war. Targets and attacks on civilians and civilians’ objectives such as civil airports, places of worships, bridges, telecommunication, hospitals, schools, shops, market, and media houses etc. which are not use for military purposes remain prohibited by the law.
From the raging war between Moscow and Kyiv, it has been established in this research that Moscow has targeted civilians including journalist and civilian objectives with devastating results, it is on this premise that the writer holds the view that Russia got it wrong by prosecuting the war without clear distinction between combatants and noncombatants, military and non-military objectives in Ukraine.
Recommendation
It is worrisome and unfortunate that the United Nations could not nip in the bud the crisis between Russian and Ukraine.
Maintaining world peace and being effective in driving solution in war situations is no doubt the primary responsibility of the United Nations. In the knowledge of the above, the following recommendations if adopted could serve the magic and make the UN more effective and relevant:
Strict Adherence to treaties, pacts and agreement between member states: The UN should at all time irrespective of whose interest is at stake prevail on member states to honour pact and agreement with each other. Member States should be neutral and stop the culture of open show of love: Taking sides in cases where terms and pacts are clear is capable of aggravating and escalating war. The UN should prevail on members to remain neutral while attempting settlement.
Diplomatic Approach of Settlement should be enforced: Of course tension will rise between nations as a result of interest, but fuel should not be used in quenching the fire. This is the case between Russia and Ukraine, members of UN who are the supposed mediators are still the ones supplying weapon to Ukraine, and this would rather escalate and prolong the war instead of quelling it.
ICC and ICJ should be Independent and empowered: Many countries and leaders especially the so called “big countries” and “big boys” do not respect decisions of both the International Criminal Court (ICC) and the International Court of Justice (ICJ). This informed the blatant violation of human rights and wars of blame among others. These courts are epitome of a “toothless dog” whose barking is neither feared nor revered. It only send fear and quiver to African countries and leaders, but for the big boys and countries, the court is powerless.
Economic sanctions should be fair, swift and comprehensive: Economic sanctions being imposed on warring nations in a view to de-escalating crisis should be fair to both nation and comprehensive. The practice where some countries endorse sanction and other stand aloof will only weaken the sanction and make it less effective. Hence in relation to sanction, all member state of the UN must be on the same radar and such sanction should be as well fair.
email: stephenokangla@gmail.com
