what else can international humanitarian law do?

Bodies everywhere. Some have their hands tied behind their backs, are still on a bicycle or in a car. The images of the Boutcha massacres, revealed after the flight of Russian soldiers from kyiv, marked the spirits. Equally shocking are the videos of Ukrainian soldiers shooting Russian soldiers in the legs before finishing them off. Evidence and rumors of the rapes of children and women are pouring in, while the shelling of Mariupol in the east and the escalation of the war in the Donbass point to equally terrible war crimes.

What can the law do in the face of such outbursts of violence? What can bits of written texts do, away from the clash of arms, when a red veil falls over the eyes of an average soldier, and that this one commits the worst atrocities?

Nothing, admits Philippe Lagrange, professor of law at the University of Poitiers and specialist in public international law. ” It is well known that it is not possible to prevent individual crimes. There will always be people who are hyper violent, mentally deranged, or who have lost their sense of proportion, this “red veil” that we also know in other circumstances. Those, you won’t stop them from raping a girl, looting a house, killing civilians “, he regrets, lucid, before qualifying:” But the qualification of war crimes aims to avoid violations that are too important, too recurrent, and above all violations that are considered as policies of the conflict.. »

However, these systematic violations of international humanitarian law, these ” conflict politics », seem increasingly plausible in the context of Russian interventions, and international humanitarian law (IHL) may be a tool to prevent them.

A millennial history

Originally, the “law of war”, ancestor of IHL, was a set of customs, framed by religions, which combatants applied with varying degrees of diligence. The Bible and the Koran, for example, have attempted to lay down rules during conflicts. ” It’s existed since the origins of humanity, that’s why we’re still here, if we hadn’t had rules for the conduct of hostilities, I think humanity would have disappearedbelieves Philippe Lagrange. The great religions were concerned with these questions, for example the prohibition to kill women and children, the obligation to respect enemies once captured, the prohibition to use poisoned arrows, to fill wells , to destroy livestock… »

Politics and law then took up the issue. The two conferences of The Hague of 1899 and 1907 are the first examples of interstate cooperation to frame conflicts. The idea of ​​international humanitarian law, and which underlies all its principles, is that it is not necessary to annihilate the enemy: war must only serve to induce him to capitulate so that he can then comply with what is expected of him. From this idea was born the principle of “superfluous evils”. There is no point in making people and combatants suffer more than necessary.

The main principles of IHL

Today, the main principles of humanitarian law, inspired and clarified by the Hague Conferences, are established in the four Geneva Conventions (1949) and their three additional protocols. The major principle of IHL is that of distinction, nuanced by that of proportionality. The first prohibits targeting civilians, civilian property, or disarmed or wounded combatants.

This principle is not respected in Ukraine, for Coline Beytout-Lamarque, legal adviser in international humanitarian law with the French Red Cross. ” Military objectives and civilian objects, combatants and non-combatants are targeted indiscriminately. We obviously cannot bomb a maternity hospital, nor any medical structure, nor attack medical personnel, nor any wounded or sick. »

In the case of the bombed children’s hospital, the principle of proportionality is at the heart of the Russian and Ukrainian justifications. ” To destroy a military objective, if there are civilian casualties for damage done to civilian objects, this can be accepted if proportionality is properly respected, that is to say if this military objective is far greater than the damage caused on the civilian side. This is the whole issue of the exchange of arms between Sergei Lavrov and Volodymyr Zelensky. One said “yes we bombed but there were fighters“, the other said”not at all it was a maternity“ “, sums up the lawyer.

Systematic violations

The problem is that between the legal texts and the reality on the ground, there is a world. The Geneva Conventions and their principles are recognized by the majority of nations around the world. International humanitarian law is based on customary practices, which, according to the standards, can be rather well established in the minds of combatants. The use of a white flag to signal non-hostility, respect for the integrity of children, the neutrality of the Red Cross and Red Crescent are all practices generally respected in international conflicts.

But that does not prevent a certain number of elementary rules from being overridden. The most serious violations can be considered war crimes, especially if they become systemic. Ukrainian soldiers who disseminate the photo of Russian prisoners of war do not respect international humanitarian law, but are not considered war criminals. ” On the other hand, if the Russian prisoners of war were systematically tortured, killed by the Ukrainian torturers, there we would be in war crime “, nuance Éric David, professor emeritus in public international law at the Free University of Brussels. Everything is a question of intensity, systematicity, and seriousness: these conditions seem to be met on the Russian side, which could push the law to punish those responsible for these crimes.

This Thursday, April 28, ten Russian soldiers were indicted for alleged war crimes committed in Boutcha, and will be sought, announced the services of the General Prosecutor of Ukraine on their Telegram account.

Universal Jurisdiction

The first drafts of legal sanctions related to violations of customs date from the Civil War, in the 1860s. A Harvard law professor, Francis Lieber, had drawn up a kind of code for northern armies, where he described serious violations of the laws and customs of war that could give rise to sanctions before courts martial. “, explains Éric David.

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Since then, international humanitarian law has been born, and has acquired tools. The appearance of universal jurisdiction notably allows a State to judge crimes committed outside its territory and even if the suspects do not have its nationality, if it considers that the facts fall within the scope of war crimes, against humanity , or genocide. Nevertheless, if Vladimir Putin or his generals are one day considered war criminals, there is little chance that this mechanism will reach them, believes the professor emeritus: “ Universal jurisdiction can only be exercised if the author is on the territory of the State that wishes to exercise it. But, he nuances, if the facts are true, someone like Putin becomes a prisoner of Russia, because he risks being prosecuted if he goes to a state that is not his ally. »

Anyway, since the beginning of the war in Crimea, Ukraine has recognized the International Criminal Court (ICC). The latter is therefore competent to investigate the acts committed on its territory. His prosecutor, Karim Khan, opened an investigation for “war crimes ” early March.

Diplomatic and educational grounds

In reality, from the point of view of IHL, the most important thing is not so much the final condemnation of the perpetrators as prevention and diplomacy. This notably involves negotiations at the international level, to push States to ratify international treaties, or encourage public opinion to put pressure on their rulers. What is interesting is that humanitarian law has become a highly symbolic tool, in the sense that even Russia, which on the ground does not always respect IHL, feels obliged to justify itself, as has been case concerning the pediatric hospital.

The education of armies is also fundamental. The Red Cross does a lot of work upstream of conflicts to teach humanitarian law in military corps. Soldiers must not be locked into a vision of war without limits, there must be no dehumanization of the adversary. This is what worries the NGOs when we learn that the Ukrainian and Russian belligerents call themselves the ” orcs ” where the ” nazis “.

Another encouraging sign, more and more within certain armies, in particular British or French, legad “, for legal advisors, that is to say legal advice, supervises commanders to help them make decisions in accordance with international humanitarian law, in particular on the principle of proportionality. ” In the French army, there were five 20 years ago, now there is necessarily one per field of operation, there is never a commander who leaves without his legad. They assess whether the scales tip in favor of a military objective or too much civilian damage, it’s a heavy responsibility “, describes Coline Beytout-Lamarque of the French Red Cross.

Sometimes it is even the fighters themselves who have the right reflexes. ” On several occasions, pilots of NATO fighter planes or bombers, who had well-determined, well-fixed targets, refused to send missiles or guided missiles to the targets in question because they had sight of civilians near these targets, because there was a peasant in his field remarks Eric David. The long-term hope, perhaps, of a reduction in war crimes, thanks to the internalization of international law by the soldiers themselves.