September 11, 2014

Update, September 11, 2014

What is Russia’s involvement in eastern Ukraine?

Since clashes between armed insurgent groups in eastern Ukraine and Ukrainian government forces began, Moscow has made clear its political support for the insurgents and clearly enjoys influence over them. Credible reports and imagery from eastern Ukraine indicate that Russia has been involved in activities such as equipping and training insurgent forces, however Human Rights Watch is not in a position to determine the full extent of such support.
Nevertheless, during the second half of August, there has been mounting evidence, including reports and satellite images from NATO and the capture of Russian soldiers within Ukraine, that Russian forces are taking part in military operations within Ukraine.

Is this now an internal or international armed conflict? What law governs it?

As indicated below (see Q 4 below) hostilities between Russian armed forces and Ukrainian armed forces constitute an international armed conflict between Ukraine and Russia, 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. 

Both Ukraine and Russia are parties to the 1949 Geneva Conventions and Protocol I.

International humanitarian law governing non-international (internal) armed conflict may still apply to the conflict between the insurgents (a non-state armed force) and Ukrainian forces, unless it is established that Russia exercises “overall control” of the insurgent forces, or part thereof. To determine if overall control exists, in addition to financing, training, equipping or providing operational support to the insurgents, it is necessary to examine the extent of Russia’s role in organizing, coordinating or planning the military actions of the insurgents.

International humanitarian law - whether in international or internal armed conflicts - is designed mainly to protect civilians and other noncombatants from the hazards of armed conflict. The answers to Q. 6 onward, set out below, provide guidance on the fundamental principles applicable to the conduct of all hostilities in eastern Ukraine under international humanitarian law.

___________________________________

1. What's going on in eastern Ukraine:

In several cities in eastern Ukraine, following the February 21, 2014 ousting of President Viktor Yanukovich, violence sporadically raged between pro- and anti-Kiev crowds. By mid-March, in several cities, particularly Donetsk and Luhansk, armed groups, initially calling themselves “self-defense units,” seized and occupied administrative buildings. Their demands ranged from making Ukraine a federation, to separation of their regions from the rest of Ukraine, to joining Russia.

On April 7, the armed groups that occupied the regional administration building in Donetsk declared the establishment of the “Donetsk People’s Republic.” On April 12, in the city of Sloviansk, men in camouflage uniforms without insignia, armed with Kalashnikov assault rifles and other military-style weapons, captured the local administration building, the police department, and security services headquarters and announced that the city was under control of the “Donetsk People’s Republic.”

On April 27, armed groups in Luhansk declared the establishment of the “People’s Republic of Luhansk.”

Between April and June, insurgents set up dozens of checkpoints controlling entry into and exit from Sloviansk and have repeatedly resisted the Ukrainian government forces’ attempts to retake the city, which at this writing remains under the control of the insurgency. The insurgents also control the roads leading to nearby villages of Semyonovka and Seleznyovka.

Insurgents have also set up dozens of checkpoints and established armed presences of various degrees in and around several other cities, towns, and villages in the Luhansk and Donetsk regions, including Mariupol, Kramatorsk, Yampol, and Kirovsk. The insurgents also have seized control of television transmitters, including in Sloviansk and Kramatorsk.

In mid-April, the Ukrainian government’s Security Service and Interior Ministry began counter-insurgency operations, which the government called an “anti-terrorist operation,” first in the Donetsk region and then in the Luhansk region. Government forces re-established control over several cities and towns, including Mariupol, Kirovsk, and Yampol.

On May 11, anti-Kiev groups proclaimed victory in referenda they organized on the independence of the Donetsk and Luhansk regions. On May 17, Ukraine’s prosecutor general designated the “Donetsk People’s Republic” and the “People’s Republic of Luhansk” and all their “structures” “terrorist organizations” under Ukrainian law.

In the lead-up to Ukraine’s May 25 presidential elections, representatives of the self-proclaimed Donetsk People’s Republic  and People’s Republic of Luhansk issued “decrees” that “banned” the vote in those regions and threatened to “execute” anyone who took part in the elections there. In the weeks before the vote, armed insurgents in both regions raided and seized district election offices, destroyed equipment and paperwork, and abducted and threatened electoral commission staff and members of their families.

The Ukrainian government’s counter-insurgency operations intensified after the election, leading to sporadic clashes in new areas—including Kramatorsk, Blahodatnoe, Yenakiyeve, Druzhkivka, Andreevka, Horlivka, and Volnovaha—and an escalation in ongoing hostilities in others—including Sloviansk, Semyonovka, Nikolaevka, Krasny Liman, Mirnyi, and Shastia.

2. Which armed groups are operating in eastern Ukraine?

On April 6, the armed groups in Luhansk announced the creation of the “South-East Army,” led by their commander and the self-proclaimed “people’s governor” of Luhansk, Valery Bolotov. On April 10, Denis Pushilin announced the establishment of the “Donetsk People’s Army,” and proclaimed himself the leader of the “Donetsk People’s Republic.” The commander of insurgent forces in Donetsk region is Igor Girkin, whose nom de guerre is Igor Strelkov [“the Shooter.”]

3. Does the situation in eastern Ukraine amount to an armed conflict?

Human Rights Watch is of the view that the hostilities between Ukrainian government forces and armed insurgent forces identifying themselves as the South-East Army and the Donetsk People’s Army constitutes an internal, or non-international, armed conflict under international humanitarian law (the laws of war). In a non-international armed conflict the parties to the conflict can be either government forces and one or more armed groups, or the conflict can be between two or more armed groups. For the purposes of international law, the armed groups must exhibit sufficient organization and control to be capable of sustaining military operations and adhering to international humanitarian law, so they can be deemed ”parties” to the conflict. In addition, to constitute an armed conflict, there needs to be a sufficient degree of intensity in hostilities between the parties.

The South-East Army and Donetsk People’s Army each operate under identified command structures, have demonstrated the capacity to exercise effective control over defined territories as described above, and have access to weaponry that enables them to mount effective military operations and sustain hostilities.

Evidence of the intensity of the hostilities between Ukrainian government forces and armed groups in eastern Ukraine, as well of the extent to which the armed groups are organized and capable of sustaining military operations, include the repeated attacks initiated and carried out by both insurgents and government forces. Both sides have used mortars, and Ukrainian government forces have used military aviation—airplanes and helicopters—and a variety of heavy weapons such as artillery with wide blast affects. Some of the hostilities that attest to the intensification of the conflict include:

  • On May 5, Ukrainian government forces attacked several insurgent checkpoints around Sloviansk. The insurgents and the Ukrainian government forces exchanged mortar fire. Insurgents shot down a military helicopter using a portable air-defense system;
  • On May 9, at least 40 people were wounded and at least 7 killed in Mariupol when Ukrainian government forces tried to dislodge anti-Kiev forces who had seized police headquarters. On May 16, more fighting erupted in Mariupol when insurgents, armed with Molotov cocktails (gasoline bombs) and machine guns, stormed a local military base;
  • On May 22, armed insurgents ambushed a military checkpoint in Blahodatnoe and fired at Ukrainian soldiers, killing 15;
  • On May 26, the insurgents briefly took control of the Donetsk International Airport. Dozens were killed as Ukrainian government forces re-took the airport;
  • On May 28, insurgents in Sloviansk shot down a Ukrainian military helicopter using a portable air-defense system, killing all 14 servicemen aboard;
  • In the early hours of June 2, following an intense nine-hour fight, the insurgents, armed with machine guns and mine launchers, took control of a border-guard outpost on the outskirts of Luhansk. Later that day, a Ukrainian military aircraft shot an unguided air-to-surface missile at the Luhansk administration building, which insurgents occupied. Several people inside were killed;
  • On June 14 insurgents in Luhansk opened fire with machine guns and missiles from a portable air-defense system at a Ukrainian military plane, shooting it down and killing 49 people on board, including 9 crew members and 40 military officers.

Several thousand people have been displaced in the Donetsk and Luhansk region as the result of the ongoing hostilities and the deteriorating living conditions. According to a report from the Office of the High Commissioner for Human Rights, released in June 2014, 356 people have been killed since Kiev began its military operation in the eastern Donetsk and Luhansk regions, of whom 257 are civilians, including 14 children.

4. Does Russia’s declared annexation of Crimea make this an international armed conflict?

No. Under international law, an international armed conflict occurs when there are armed hostilities between two or more governments. On March 18, President Vladimir Putin of Russia, having already signed a decree recognizing Crimea as an independent country, signed agreements with Crimea’s leadership making Crimea and the city of Sevastopol part of the Russian Federation. This followed a March 16 referendum, held by local Crimean authorities but not recognized by the Ukrainian government or others, in which the authorities claimed that 97 percent of the population voted to join Russia.

Both before and after the referendum, armed personnel in uniforms without insignia, later identified as members of the Russian Federation’s security forces, have asserted their authority in Crimea. The exercise of effective control in Crimea by Russian troops triggers the application of the international law of occupation within that territory. However their presence does not transform the conflict in eastern Ukraine into an international armed conflict.

If Russian armed forces became engaged in the hostilities in eastern Ukraine that would create an international armed conflict between Ukraine and Russia.

5. What law is applicable and who is bound by it?

The internal armed conflict between Ukrainian forces and insurgent armed groups in eastern Ukraine is governed by international humanitarian law set out in treaties as well as the rules of customary international humanitarian law. The most important element of the treaty law is Common Article 3 to the Geneva Conventions of 1949, to which Ukraine is a party. The article sets forth minimum standards for all parties to a non-international armed conflict.

All parties to the armed conflict—both Ukraine and the armed groups/insurgents—are responsible for complying with the requirements of international humanitarian law. That is, each party must respect and ensure respect for the laws of war, in the case of Ukraine by its armed forces and in the case of all parties, by all individuals or groups acting on their orders or under their direction or control. This obligation does not depend on reciprocity. Parties to a conflict must respect the requirements whether or not the opposing side abides by them. It also does not depend on the reason underlying the conflict or why any party has resorted to use of force, whether the government or the insurgents. And all parties to an armed conflict are held to the same standards, regardless of any disparity in the harm caused by alleged violations.

6. Does international human rights law still apply in Ukraine, including Crimea?

Even during armed conflict situations, in which the laws of war apply, or in times of occupation, international human rights law remains in effect. Ukraine and Russia are both party to a number of 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 outline 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, right to a fair trial). 

While both the ECHR and the ICCPR permit some restrictions on certain rights during wartime or an officially proclaimed public emergency “threatening the life of the nation,” any reduction in rights during a public emergency must be of an exceptional and temporary nature, and must be limited “to the extent strictly required by the exigencies of the situation.” Certain fundamental rights—such as the right to life and the right to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and rights to a fair trial—must always be respected, even during a public emergency.

7. What are the basic principles of the laws of war?

International humanitarian law provides protections to civilians and other noncombatants from the hazards of armed conflict. It addresses the conduct of hostilities—the means and methods of warfare—by all sides 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. As discussed below, parties to the conflict are required to take all feasible precautions to minimize harm to civilians and civilian objects and to refrain from attacks that fail to discriminate between combatants and civilians, or would cause disproportionate harm to the civilian population.

Common Article 3 provides a number of fundamental protections for civilians and people who are no longer taking part in hostilities, such as captured combatants and those who have surrendered or are unable to fight because of wounds or illness. It prohibits violence against them—particularly murder, cruel treatment, and torture—as well as outrages against their personal dignity and degrading or humiliating treatment.

8. What targets are subject to 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. 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.” 

The laws of war also protect “civilian objects,” which are defined as anything not considered a military objective. Direct attacks against civilian objects—such as homes, apartments and businesses, places of worship, hospitals, schools, and cultural monuments—are prohibited unless they are being used for military purposes and thus become military objectives. This would be the case if military forces are deployed in what are normally civilian objects. Where there is doubt about the nature of an object, the warring party must presume it to be civilian.

9. What kinds of attacks 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.

Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects. Military commanders must choose a means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed. 

Attacks that violate the principle of proportionality are also prohibited. 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. Anti-personnel landmines and cluster munitions are prohibited by international treaty and should never be used because of their inherently indiscriminate nature.

10. What are the obligations of parties to the conflict regarding fighting in populated areas?

International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on parties to the conflict to take steps to minimize harm to civilians. The laws of war require parties to a conflict to take constant care during military operations to spare the civilian population and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving “effective advance warning” of attacks when circumstances permit. 

Forces deployed in populated areas must avoid locating military objectives near densely populated areas and endeavor to remove civilians from the vicinity of military activities. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to protect military forces or areas, making them immune from attack

The attacking party is not relieved from its obligation to take into account the risk to civilians simply because it considers the defending party responsible for locating legitimate military targets within or near populated areas. The use of heavy artillery (weapons with a wide blast radius) and other indirect-fire artillery without adequate spotting (weapons for which the target is wholly unseen) against military objectives in populated areas heightens concerns of unlawful indiscriminate and disproportionate attacks.

11. What is meant by using human shields?

The war crime of “shielding” has been defined as intentionally using the presence of civilians to render 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. Opposing forces may attack a military target that is making use of human shields, but it is still obligated to determine whether the attack is proportionate—that is, that the expected loss of civilian life and property is not greater than the anticipated military advantage of the attack.

12. Are parties to the conflict permitted to target infrastructure such as airports, roads, and bridges?

Civil airports, roads, and bridges are civilian objects that become military objectives subject to attack if they are actually used for military purposes or military objectives are located on or within them. Even then, the rule of proportionality applies, requiring the parties to the conflict to weigh the short- and long-term harm on civilians against the military advantage served. They must consider all ways of minimizing the impact on civilians; and they should not undertake attacks if the expected civilian harm outweighs the definite military advantage.

13. Do radio and television stations have special protection from attack?

Attacks on broadcast facilities used for military communications are legitimate under the laws of war. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective: that is, if they are used in a way that makes an “effective contribution to military action” and their destruction in the circumstances ruling at the time offers “a definite military advantage.”

For example, broadcast facilities could become military targets if they are used to send military orders or otherwise concretely to advance military operations. However, civilian broadcasting facilities do not become legitimate military targets simply because they broadcast pro-government or pro-opposition propaganda. It is unlawful to attack facilities that solely shape civilian opinion—these facilities do not directly contribute to military operations.

Should broadcast facilities become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that attacking forces should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. They should take special precautions with buildings in urban areas, including giving advance warning of an attack whenever possible.

Opposition forces are not prohibited under international law from occupying broadcast facilities (or other civilian structures except hospitals) and making use of them. However, the presence of opposition fighters or the use of the broadcast facilities for military purposes makes the facilities military objectives subject to attack.

14. Do journalists have special protection from attack?

Journalists, unless they are taking direct part in hostilities, are civilians and, as discussed above, may never be targets of an attack. Any risks to journalists as part of the civilian population must also be verified in an attack in which such risk may be expected, and the risk must not outweigh the anticipated military benefit.

While journalists may be subject to any legitimate limitations on rights, such as freedom of expression or freedom of movement, imposed in accordance with law and to the extent strictly required by the exigencies of the situation, they also may not be targeted for arrest, detention, or other forms of punishment or retaliation simply for doing their work as journalists.

15. What rights do people in custody have during an armed conflict?

Common Article 3 to the four Geneva Conventions of 1949, applicable during non-international armed conflicts, requires protecting anyone in custody, including captured combatants and civilians, against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” No sentences may be handed down except by a “regularly constituted court” that meets international fair trial standards.

The ban against torture and other ill-treatment is one of the most fundamental prohibitions in international human rights and humanitarian law. No exceptional circumstances can justify torture. Ukraine’s human rights treaty obligations, discussed above, underline that torture is banned under all circumstances, even during recognized states of emergency, and requires investigation and prosecution of those responsible for torture. When committed as part of a widespread and systematic attack against the civilian population, torture constitutes a crime against humanity under customary international law and the Rome Statute, the treaty that established the International Criminal Court (ICC).

Anyone deprived of liberty must be provided with adequate food, water, clothing, shelter, and medical attention. Detained women must be held in quarters separate from those for men. Children deprived of their liberty, unless with their families, must have quarters separate from adults.

Under fundamental human rights law that applies even during a publicly declared emergency, detainees are entitled to judicial review of the legality of their detention, and all the rights to a fair trial, including the right to be tried and convicted for a criminal offense only by a court of law. Unacknowledged detention is prohibited at all times.

16. What obligations do parties to the conflict have to populations in need?

Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The parties must consent to allow relief operations and may not refuse such consent on arbitrary grounds. They may take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons. However, deliberately impeding relief supplies is prohibited.

In addition, international humanitarian law requires belligerent parties to ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity.

17. Who can be held responsible for violations of international humanitarian law?

Serious violations of international humanitarian law committed with criminal intent—that is, deliberately or recklessly—are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the International Criminal Court statute and other sources, include a wide array of offenses—deliberate, indiscriminate, and disproportionate attacks harming civilians; hostage taking; using human shields; and imposing collective punishment, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.

Responsibility also may fall on people planning or instigating a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.

18. Who is primarily responsible for ensuring accountability for serious violations of international law?

Ensuring justice for serious violations is, in the first instance, the responsibility of the country whose nationals are implicated in the violations. Governments have an obligation to investigate serious violations that implicate their officials or other people under their jurisdiction. The government must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair-trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds. While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.

19. Can any war crimes or crimes against humanity committed in Ukraine be tried before the International Criminal Court?

The International Criminal Court (ICC) is a permanent international court with a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002. However, it can only exercise jurisdiction over these crimes if:

  • The crimes occurred in the territory of a country that is a party to the ICC treaty;
  • The person accused of the crimes is a citizen of a country that is a party to the ICC treaty;
  • A country that is not a party to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or
  • The United Nations Security Council refers the situation to the ICC prosecutor.

Ukraine is not a state party to the Rome Statute, the ICC treaty. Therefore, in the absence of the Ukraine government ratifying the statute, or accepting the jurisdiction of the court through a declaration, the ICC could only obtain jurisdiction over crimes in Ukraine if the Security Council refers the situation there to the court. Russia is also not a state party, so in the absence of one of the aforementioned actions taking place, it is unlikely that someone accused of a crime could be tried by the court simply because they were a Russian citizen.

20. Can other countries prosecute international crimes committed in Ukraine?

Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction,” which refers to the ability of a country’s domestic judicial system to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals. Certain treaties, such as the 1949 Geneva Conventions and the Convention against Torture, oblige states parties to extradite or prosecute suspected offenders who are within that country’s territory or otherwise under its jurisdiction. Under customary international law, it is also generally agreed that countries are allowed to try those responsible for other crimes, such as genocide or crimes against humanity, wherever these crimes took place.