A report by Amnesty International accusing Ukraine’s armed forces of endangering civilian lives has caused outrage, prompting the head of the NGOs Ukrainian branch to quit in protest and the organisation to apologise for the “anger” it has caused.
According to the findings, the Ukrainian army has set up military bases and managed weapons from populated areas, schools and hospitals on several occasions, putting civilians in harm's way in a breach of international humanitarian law (IHL). But as Ukraine fights tooth and nail to repel the Russian invasion and regain control of its territories, critics have been harsh on the report, calling it “one-sided” or “counter-productive”.
Despite the fury that has been expressed, the rules of conflict are clear and apply to all parties involved. Geneva Solutions spoke with Marco Sassòli, professor of international law at the University of Geneva and special advisor on IHL to the prosecutor of the International Criminal Court, about the conclusions of the report and the backlash it has received.
What the rules of combat say
International humanitarian law requires all parties to the conflict to “avoid locating military objectives within or near densely populated areas”, to “the extent feasible”. It also requires them to “remove civilian persons and objects under its control from the vicinity of military objectives”, again “to the extent feasible”.
As cities and towns increasingly become the epicentre of fighting, civilian and military objectives intertwine and it becomes trickier to apply these rules. “We have to be conscious that the rule is not an absolute rule, such as the provision that prohibits directing an attack at civilians, but it rather is as far as it is feasible [for the party – ed.],” said Sassòli.
“If, say, the Ukrainian forces want to defend a village, which is totally lawful, they should first evacuate the civilian population, if possible. Then they may defend the village, but simply it becomes a military objective, and therefore the Russian forces may, under humanitarian law, attack those houses.”
Amnesty International’s analysis of Russian strikes in the Kharkiv, Donbas and Mykolaiv regions found that Ukraine's military had operated from urban areas surrounded by buildings occupied by civilians in at least 19 cities and towns, but it did not find evidence of its efforts to reduce the risk for nearby civilians by evacuating them or by choosing alternative locations for a base.
The army is also said to have used at least 22 closed schools as military bases. While IHL does not forbid the use of education centres for that purpose, it requires the party to avoid schools located near houses or buildings with civilians in them or at least to warn them and help them evacuate if necessary.
According to the findings, Ukrainian forces also used hospitals in five places as “de facto military bases”, either to rest or to launch attacks from a nearby location. This accusation is more clear cut, according to Sassòli, who noted that using hospitals for such purposes is “a clear violation of humanitarian law”.
Read also: Ukraine: is targeting hospitals always a war crime?
For the expert, the report makes claims of “negligence” on the part of the Ukrainian army, but it does not go as far as accusing it of using civilians as human shields, which would constitute a war crime.
Sassòli stresses the importance of distinguishing between IHL violations and war crimes: “only some violations of humanitarian law are war crimes. War crimes lead to individual criminal responsibility, and those people have to be brought before a court.”
Previous investigations by Amnesty have found that Russia has committed war crimes in Ukraine.
The report has received harsh criticism for drawing what many say is a false equivalence between a country that is defending itself and an aggressor, who is ultimately the root cause of the suffering and abuses committed.
Despite stating that “the Ukrainian military’s practice of locating military objectives within populated areas does not in any way justify indiscriminate Russian attacks”, the report has been rebuked for serving Russia’s narrative. Ukrainian President Volodymyr Zelensky said it was an attempt to “amnesty the terrorist state and shift the responsibility from the aggressor to the victim”.
Sassòli recalls that the IHL obligations apply to both the defender and the attacker. “It is not a question of who attacked – it is clear that the Russian Federation is responsible for this whole war – but within the war, as far as humanitarian law is concerned, both parties have to comply with the same rules,” he said.
The report, according to the expert, is tough as it is Amnesty’s “style”. “Amnesty chooses the most protective interpretation of the law, but it does the same thing when it criticises Russia,” he noted.
Sassòli worries about the backlash that the report has received: “This is a big problem for humanitarian law if you consider that if you have a just cause then you no longer have to comply with humanitarian law. Everyone who wages war, considers that they have a just cause.”
Sassòli was one of the experts designated in March by the Organization for Security and Co-operation in Europe (OSCE) to investigate violations of international humanitarian law and international human rights law committed in Ukraine since war broke out on 24 February. The report had also found violations on Ukraine’s side, he said, but had clearly stated that they were greater and graver on Russia’s side – as Amnesty’s report does.
“In my experience, I have never seen an armed conflict where only one side violated international humanitarian law,” Sassòli added. “Humanitarian law wouldn't have any chance of survival, if its applicability depended on whether a party is right or wrong.”