Mar 19, 2022

Ukraine and War Crimes

Ukraine and war crimes

 By: Saul Hofileña Jr.

In Ukraine, in a place called Zaporizhzhia, the Russians targeted a nuclear plant, which is said to be Europe's largest. Earmarking for destruction the Zaporizhzhia plant is a grave breach of the Geneva Conventions to which Russia and Ukraine are signatories. Grave breaches of the Geneva Conventions have been categorized as war crimes.

According to Additional Protocol 1 to the Geneva Conventions, "works or installations containing dangerous forces, namely dams, dikes and nuclear electrical generating stations, shall not be made the object of attack, even when these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population."

A war crime may be differentiated from the crime of aggression in that the latter may give rise to the former. In the crime of aggression, the chief perpetrator and his enablers are held accountable. The enablers are usually the generals planning and executing the attack on the sovereignty of another State. War crimes are more specific since the crime punishes the perpetrator of the act itself either individually or collectively. War crimes are more difficult to prove since evidence are usually lost during the war itself. In the crime of aggression, there is usually no dearth of evidence to prove aggression was committed.

Intentionally directing attacks on the civilian population or against individual civilians not taking direct part in hostilities is considered a war crime. Intentionally directing attacks against civilian objects — that is, objects which are not military objectives — is also a war crime.

When an attack is launched with the intention and knowledge that it will cause incidental loss of life or injury to civilians or widespread and long-term damage to civilian objects or the destruction of the natural environment, clearly excessive in relation to the concrete and direct overall military advantage anticipated, that attack is a war crime.

Read: Blinken says Russia guilty of war crimes

It is a war crime to attack or bombard, by whatever means, undefended towns, villages, dwellings or buildings which are not military objectives. Attacking with knowledge and intention buildings dedicated to religion, education, art, science, to charitable purposes and historic monuments is a war crime. Bombing hospitals and places where the sick and wounded are collected, provided these are not military objectives, is a war crime. The indiscriminate bombing of the maternity and children's hospital in the city of Mariupol in Ukraine is categorized as a war crime. There were also reports that Russian soldiers violated Ukrainian women in occupied territories. If true, soldiers who committed such acts can later be tried as war criminals since any form of sexual violence committed during war is considered a war crime.

Looking at the pictures and reading reports coming out of Ukraine, it is obvious that the country is suffering extensive collateral or incidental damage. Attacks that cause collateral damage are not per se prohibited, but the attack should not be indiscriminate as what is happening in Ukraine where residential neighborhoods and houses are subjected to bombardment. Should the collateral damage suffered be disproportionate to the military advantage obtained as a result of the attack, then it is prohibited. The military commanders who gave the orders and the soldiers who complied with the illegal orders may be held liable as war criminals.

Destruction of civilian property is likewise prohibited. Additional Protocol I to the Geneva Conventions states that "civilian objects shall not be the object of attack or reprisals and objects or institutions ordinarily of civilian use are presumed to be civilian unless determined to be otherwise."

The war in Ukraine has demonstrated to us how advances in information technology have changed the way wars are fought. The internet and digital cameras facilitate live, on-the-spot coverage and instant transmission by various news agencies covering the war. An indiscriminate attack can be seen by the entire world within minutes after it is committed. The death of a child can be broadcast as she breathes her last. While war crimes are committed before our very eyes, President Putin's invasion of Ukraine has made all of us aware of the importance of international law.

Read: Zelenskyy to world: Protest Ukraine invasion

Significantly, in 1868, czarist Russia banned the use of newly developed exploding or incendiary bullets weighing less than 400 grams because of its destructive power. A Declaration was signed by Russia and other States to enforce the ban. The Declaration affirmed: "That the progress of civilization should have the effect of alleviating as much as possible the calamities of war." It established the understanding that "whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops...the necessities of war" shall be reconciled "with the laws of humanity."

The Declaration was signed in St. Petersburg, now Leningrad, in Russia. The birthplace of Vladimir Putin. 

Read: War in Ukraine 'morally unacceptable, politically indefensible and militarily nonsensical'

(The Manila Times, March 19, 2022)