The story so far: Russia’s armed invasion of Ukraine starting February 24 has set off a steady escalation in hostilities on Ukrainian soil, and in many cases civilian infrastructure and non-combatants have been impacted. As the Russian military continues to sweep through the country marching on to the capital, Kyiv, presumably in a bid to destabilise the seat of Ukrainian government, there is growing concern surrounding the issue of human rights violations. Russian President Vladimir Putin and his administration have steadfastly denied any responsibility for harm to civilians. However, as the evidence of casualties in the civilian population continues to mount, the world will increasingly look to the Geneva Conventions, a set of principles outlining norms for combatant behaviour during a war, for standards to which the invading Russian forces can be held. Ultimately, if there is a compelling case for prosecuting combatants for war crimes, crimes against humanity, genocide, and the crime of aggression, it is not inconceivable that evidence would be collected for an investigation and trial at the International Criminal Court (ICC).
What are the Geneva Conventions guidelines during wartime?
The Geneva Conventions are a set of four treaties, formalised in 1949, and three additional protocols, the first two of which were formalised in 1977 and the third in 2005, which codify widely accepted ethical and legal international standards for humanitarian treatment of those impacted by any ongoing war. The focus of the Conventions is the treatment of non-combatants and prisoners of war, and not the use of conventional or biological and chemical weapons, the use of which is governed respectively by the Hague Conventions and the Geneva Protocol.
The First Geneva Convention protects wounded and sick soldiers on land during war. This convention extends to medical and religious personnel, medical units, and medical transport. While recognising distinctive emblems of these organisations, the convention has two annexes containing a draft agreement relating to hospital zones and a model identity card for medical and religious personnel.
The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war. This convention also extends to hospital ships and medical transports by sea, with specific commentary on the treatment of and protections for their personnel.
The Third Geneva Convention applies to prisoners of war, including a wide range of general protections such as humane treatment, maintenance and equality across prisoners, conditions of captivity, questioning and evacuation of prisoners, transit camps, food, clothing, medicines, hygiene and right to religious, intellectual, and physical activities of prisoners.
The Fourth Geneva Convention, which most imminently applies to the invasion of Ukraine by Russian military forces, protects civilians, including those in occupied territory. The other Geneva Conventions were concerned mainly with combatants rather than civilians. However, based on the experience of World War II, which demonstrated the horrific consequences of having no convention for the protection of civilians in wartime, the Fourth Convention comprising 159 articles outlines the norms for this critical dimension of conflict.
Along with the Additional Protocols of 1977, the Fourth Convention expounds upon the general protection of populations against certain consequences of war, the conduct of hostilities and the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory. This convention also spells out the obligations of the occupying power vis-à-vis the civilian population and outlines detailed provisions on humanitarian relief for populations in occupied territory. As the International Committee for the Red Cross, a key medical intermediary in such situations, explains, this convention also contains a specific regime for the treatment of civilian internees, including three annexes on hospital and safety zones, and model regulations on humanitarian relief.
Which countries are signatories?
The Geneva Conventions have been ratified by 196 states, including all UN member states. The three Protocols have been ratified by 174, 169 and 79 states respectively. In 2019, perhaps anticipating the possibility of its invading Ukraine in the near future, Russia withdrew its declaration under Article 90 of Protocol 1, which states that “The High Contracting Parties may at the time of signing, ratifying or acceding to the Protocol, or at any other subsequent time, declare that they recognize ipso facto and without special agreement, in relation to any other High Contracting Party accepting the same obligation, the competence of the [International Fact-Finding] Commission to enquire into allegations by such other Party, as authorized by this Article.” By withdrawing this declaration, Russia has pre-emptively left itself with the option to refuse access by any international fact-finding missions to Russian entities, individuals or resources that might potentially, in Moscow’s reckoning, find Russia responsible for violations of the Geneva Conventions standards.
Further, the four conventions and first two protocols of the Geneva Conventions were ratified by the Soviet Union, not Russia, hence there is a risk of the Russian government of the day disavowing any responsibility under the Conventions in toto.
What would be the steps for potential prosecution under the Conventions?
Under Article 8 of the Rome Statute of the ICC, it is the ICC that has jurisdiction in respect of war crimes, in particular “when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Under the statute, ‘war crimes’ refers to “Grave breaches of the Geneva Conventions… [including] wilful killing, torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; taking of hostages.”
The statute goes beyond these crimes directed against individuals to include within the definition of ‘war crimes’ broader acts that occur within armed conflict, including intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities, such as attacking or bombarding towns, villages, dwellings or buildings which are undefended and which are not military objectives; and intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, especially when it is in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment.
What evidence of war crimes has been accumulated so far?
Speaking in Poland, U.S. Vice President Kamala Harris called for an investigation into allegations of Russia committing war crimes in Ukraine, citing as example the bombing of a maternity hospital in the southern city of Mariupol, including scenes of bloodied pregnant women being evacuated. Similarly, there has been photographic and video evidence of lethal firing on civilians trying to escape across a damaged bridge in Irpin, near Kyiv; and hours of cell phone videos of bombed-out schools, houses, and apartment buildings across Ukraine.
However, analysts have argued that much of such evidence, while corroborating the allegation of attack on non-combatants and civilian infrastructure, does not answer the central question of any war crime prosecution: who ordered which crime? The evidence that is required to answer this question, if it is recoverable, will come from the mobile phones and other communications equipment of Russian soldiers, which would typically include information on orders received from commanding officers, and video or audio evidence of attacks executed and the aftermath. To examine any such evidence emerging, on February 28 the ICC opened a war crimes investigation under its prosecutor, Karim Khan.
To what extent have the Geneva Conventions been upheld worldwide in recent years?
On the 70th anniversary of the Conventions’ adoption, Amnesty International, a human rights advocacy group, noted in 2019 that there has been a “blatant disregard for civilian protection and international humanitarian law in armed conflicts where four of the five permanent members of the UN Security Council are parties — Russia, the U.S., the U.K. and France.” Specifically, Amnesty cited the U.S.-led coalition’s bombing of Raqqa in Syria, which left more than 1,600 civilians dead; destruction of civilian infrastructure and lives in Aleppo and Idlib by Russian forces, leading to mass displacement of millions; and the war in Yemen where the Saudi Arabia and the UAE-led coalition, backed by the West, killed and injured thousands of civilians, fuelling a full-blown humanitarian crisis. These cases underscore the grim fact that the Geneva Conventions, even when backed by rulings of the ICC, cannot be enforced by third parties to any conflict. However, they have in the past proved effective at raising global awareness of human rights violations across conflict zones, and in some cases led to sanctions or trade embargoes against the belligerents.
