This post is part of a short series of blog posts exploring the recent Russian invasion of Ukraine against the background rules of international law. The posts are based on presentations given at an event on the subject on 7 March that was organised by the University of Bristol Law School’s Centre for International Law.
In this first blog post of the series, Professor Noëlle Quénivet from the University of the West of England introduces us to the question of the compatibility of Russia’s invasion with international humanitarian law (the law of armed conflict).
by Noëlle Quénivet, Professor in International Law, University of West of England
In the last few weeks, the press has reported numerous instances of attacks by Russian forces on cities, hospitals, airports, nuclear power plants, places of worships, etc. The list is very long. But are all these attacks automatically unlawful, as often claimed in press reports? After explaining the legal framework to determine the lawfulness of these attacks, this post, using the example of the attack on hospitals, and more specifically the maternity hospital in Mariupol, illustrates how the targeting rules apply and argues that, even in the case of an attack against medical facilities, the answer is not always a straight: ‘it is unlawful’.
The relevant legal framework to determine the lawfulness of a military target is international humanitarian law (IHL), a regime that only applies in the situation of an armed conflict. The conflict in Ukraine is undoubtedly an international armed conflict (Common Article 2 of the Geneva Conventions (GCs)) as it involves two State parties. One might even argue that it is the continuation of the international conflict that started in 2014 when Russia annexed Crimea. Consequently, all four Geneva Conventions of 1949 and their Additional Protocol I (API) of 1977, as well as those rules of customary international humanitarian law (CIHL) that arise based on the practice of States apply.
Attacks by Russian forces on hospitals and maternity hospitals have been reported in Mariupol, Zhytomyr, Vuhledar, Kiyv, Vasylivka, etc. In fact, the Director General of the World Health Organisation stated on 9 March that the organisation had ‘verified 18 attacks on health facilities, health workers and ambulances’.
When attacking, combatants must abide by several principles, the two most important ones being the principle of distinction (Article 48 API) and the principle of discrimination (Articles 48 and 51(4) API). Whereas the principle of distinction dictates that combatants must at all times distinguish between civilians and civilian objects on the one hand and combatants and military objectives on the other (which leads to assessing whether the object of attack is a military objective under Article 52(2) API), the principle of discrimination requires combatants to direct their attack at combatants and military objectives only.
However, hospitals or civilian ‘medical units’ (as they are called in IHL jargon – see Article 8(e) API for the definition of a medical unit) are specially protected under Article 12 API as they ‘shall be respected and protected at all times and shall not be the object of attack’ (see also Rule 28 ICRC Study on CIHL). In other words, they have an enhanced protection under IHL.
They can only lose their protection if they are used, outside of their humanitarian function, to commit acts that are harmful to the enemy (Article 13(1) API; Rule 28 ICRC Study on CIHL). Although treaty law fails to define ‘acts harmful to the enemy’, examples cited in the International Committee of the Red Cross’ Commentary to Additional Protocol I (para 551), such as to shelter able-bodied combatants, to keep arms or ammunition, to use it as a military observation post, offer a wide interpretation of such acts. An over-broad interpretation of the term is nevertheless tempered by a list of acts that are not considered to be acts harmful to the enemy (Article 13(2) API). Moreover, as the Commentary explains, even if they are used for harmful purposes, an accidental or sporadic use of medical units would not give rise to a loss of protection as such acts ‘are not the result of any intention to use these units for military purposes’ (para 549).
It has been reported that Russia’s Foreign Minister Sergey Lavrov stated that the attack on the maternity hospital in Mariupol was a deliberate action as it was believed to have been taken over by the Azov Battalion which had asked all patients and medical staff to leave (see also here). Let us, for the sake of it, entertain this claim. If, as contended, the maternity hospital was a base of the Azov battalion, then it could be argued that it was used to commit acts harmful to the enemy and that this use was not accidental or temporary as the patients and staff had been evacuated and the battalion had settled in. The problem with this claim is that images (released by e.g., BBC, AP News, Washington Post, Aljazeera, South China Morning Post) following the attack showed injured pregnant women and staff leaving the maternity ward (civilian deaths were also reported) but no sign of a single combatant.
Even if one runs with the claim that the Russian forces had inaccurate information, one may wonder why later on the Russian Embassy in the UK tweeted that the attack had been staged (tweet later removed by Twitter) or why Sergey Lavrov complained about ‘pathetic rhetoric about some atrocities allegedly committed by the Russian army’ without providing any proof that the maternity hospital had been converted into a combat position.
In addition, Article 13(1) API requires a warning providing a reasonable time-limit to be given prior to the attack. Both Lavrov and the Russian Embassy in the UK claim that they had warned the UN Security Council but the problem is that the warning must be given to the combatants on the ground and not to the UN.
Even if one were to accept the Russian assertion that the maternity hospital was a legitimate target, the attack ought to have complied with what is known as the principle of proportionality. Article 51(5)(b) API enjoins States to ensure that incidental loss of civilian life or injury to civilians (otherwise known as ‘collateral damage’) ‘is not excessive in relation to the concrete and direct military advantage anticipated’. The advantage gained from destroying (rather than capturing or neutralising) a ‘military’ base can hardly justify the deaths of, and injuries sustained by (future) mothers and their babies – unless, one accepts the spurious claims that all civilians had left the building and that it was exclusively used by the armed forces and thus no assessment in light of the principle of proportionality had to be carried out.
The conclusion is undoubtedly that the attack on the maternity hospital (and on many other hospitals, attacks for which Russia did not even provide any justification) was unlawful. Sadly, the Russian forces have a reputation for attacking hospitals and these attacks are in line with similar acts carried out in Chechnya and Syria. Nonetheless, one needs to remember not to fall into the trap of claiming a violation of IHL every time a civilian building or hospital is hit.