Russian forces are regularly accused of breaking the ‘laws of war.’ What exactly are they?

On February 24, Russia deployed troops to Ukraine, launching a full-scale war that’s now been going on for almost six months. During that time, both Ukraine and Russia have repeatedly accused one another of violating the laws and customs of war. In addition, the international human rights organization Amnesty International has documented multiple violations of the laws of war by Russian forces: shelling cities and destroying civilian infrastructure, indiscriminately carrying out shelling attacks that kill and injure civilians, and even conducting extrajudicial executions. Other experts and organizations, such as Human Rights Watch, have made similar accusations.

Arguably the most widely discussed accusations, however, have been the ones made by Amnesty International against Ukraine. According to a report released by the organization, the Ukrainian Armed Forces, in violation of the laws of war, have endangered civilians by stationing troops in schools and hospitals, effectively turning them into military targets, as well as firing from residential areas (which, as the report notes, “does not in any way justify indiscriminate Russian attacks”).

Ukrainian authorities, reporters, and human rights advocates have sharply criticized the report. Russian propaganda has taken advantage of the document by citing it frequently and selectively, ignoring all references to Russian crimes. The director of Amnesty International’s Ukrainian office resigned the day after its publication. Ultimately, the organization vowed to send the report to independent experts for verification.

The laws of war are a set of international documents limiting the use of certain types of weapons and guaranteeing certain protections for POWs, wounded combatants, and civilians. These conventions and declarations make up the core of international humanitarian law. Their stated goal is to minimize the suffering of both civilians and soldiers.

The emergence of international humanitarian law is usually associated with Swiss humanitarian Henry Dunant. In 1859, he organized aid for injured soldiers. Later, in the book A Memory of Solferino, Dunant proposed the creation of independent organizations to help injured soldiers on the battlefield and international agreements to ensure the organizations’ protection.

Soon, both ideas were realized: 1863 saw the creation of the International Red Cross, and in 1864, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was signed.

No. At least that’s the opinion of Eyal Benvenisti, an international law professor and the director of the Lauterpacht Center for International Law at Cambridge University, and Doreen Lustig, an Associate Professor at Tel Aviv University.

They studied the context in which the first modern attempt to legislate the laws of war was made. The document was written during the course of the 1874 Brussels Convention (which was convened at Russia’s initiative), and while it wasn’t ratified, it became an important reference point for future agreements.

According to Benvenisti and Lustig, political elites commandeered the agenda by excluding civil society from discussions about the new document. As a result, politicians, rather than protecting civilians from combat, effectively created a way to protect soldiers from citizens.

The researchers said that in those days, the authorities had two problems. The first was revolutionaries who wanted to overthrow their governments. The second was patriotic citizens who were willing to form spontaneous militias to protect the state itself — sometimes against the wishes of official authorities.

The protection that was ultimately provided by the first ratified laws of war extended only to official state armies by default. The only groups with the right to fight against them were other armies or militias, and only if they met certain organizational requirements: they had to have a commander, have an emblem that was distinguishable from afar, carry their weapons openly, and respect the laws and customs of war. Spontaneous resistance was only permitted when defending against an invasion; after an occupation, a militia had to follow all of the rules mentioned above — otherwise its members would be considered criminals.

Additionally, the laws of war were only supposed to apply during wars between multiple states. During domestic conflicts — such as civil wars — the laws and customs of war didn’t apply. This was great for the authorities: it allowed them to deal with protesters as they pleased. These rules were in effect until the mid-20th century.

That’s when the Geneva Conventions were ratified. The third article common to all of the conventions lays out the rules that protect participants of civil wars and other armed conflicts inside of a single state. The Geneva Conventions still form the basis of modern international humanitarian law. In 1977 and 2005, the conventions’ provisions were expanded in three additional protocols.

Yes, but the laws and customs of war aren’t limited to the Geneva Conventions. They also include the extensive Hague Conventions. Those were developed and ratified earlier (in 1899 and 1907) and based in part on the document written at the Brussels Conference. The laws of war also include other international agreements, such as the various conventions prohibiting the use of certain types of weapons and ammunition.

Not every violation of the laws and customs of war will be considered a war crime in court.

For example, in one of its decisions, the appeals chamber of the International Criminal Tribunal for the former Yugoslavia considered the hypothetical example of a soldier taking a loaf of bread in an occupied village. That act is a violation of the 46th article of the Hague Convention on the Laws and Customs of War on Land, which requires the respect of private property. But because the violation is not very serious, it would not be considered a war crime.

According to an interpretation by Chile Eboe-Osuji, former president of the International Criminal Court, a violation serious enough to constitute a war crime must, first of all, "endanger protected persons or objects or breach important values." Second of all, it must be committed willfully, whether that means it’s done intentionally or with reckless disregard for consequences. It’s also irrelevant whether harm is ultimately done or prevented by circumstances out of the offender’s control.

The International Crime Court is the first permanent international court created for the prosecution of grievous crimes on an international scale. Before the court’s creation, acts that are now considered war crimes had to be prosecuted in temporary tribunals with limited geographical and temporal jurisdictions.

Not exactly. The Rome Statute of the International Criminal Court in the Hague includes a long and closed list of war crimes. But the statutes of all of the international tribunals that preceded it included disclaimers noting that the lists of war crimes they contained could not be considered exhaustive. This matters because the UN has set up a special structure that continues to work on the tribunals for Yugoslavia and Rwanda.

In addition, the definition of war crimes presented in the Statute of the International Criminal Tribunal for the former Yugoslavia initially didn’t specify that a violation of the laws of war must be serious to qualify as a war crime (and was remitted by the Appeals Chamber).

In addition, war crimes are laid out in many national criminal codes — with an eye to international conventions, but not always in identical language.

No. The International Military Tribunal in Nuremberg designated various acts as war crimes, crimes against peace, and crimes against humanity. The International Tribunal for Yugoslavia and the International Tribunal for Rwanda identified genocide and crimes against humanity. The International Criminal Court can also investigate certain "crimes of aggression."

All countries that have ratified key agreements like the Geneva Conventions do — and Russia and Ukraine have. Neither, however, have ratified the Rome Statute, which means that Russia will play no role in the International Criminal Court’s work.

Ukraine has, though, recognized the jurisdiction of the International Criminal Court with regard to crimes committed on its own territory. The court is already investigating both the events of 2014 and Russia’s full-scale invasion in 2022.

In late 2019, Russia suddenly withdrew from the International Fact-Finding Commission, which has jurisdiction to record the facts of any serious violation of the Geneva Conventions. If it had remained, Moscow would have been required to assist experts from the commission. While it had no judicial powers, the materials gathered could theoretically be used in court proceedings all the way up to the International Criminal Court. It’s possible that the decision to withdraw was made in anticipation of the invasion of Ukraine.

Yes. Article 2 of the Geneva Conventions holds that the agreement applies even if one of the parties does not recognize the war as such.

In 2014, human rights advocates from Human Rights Watch stated that all sides of the conflict in eastern Ukraine “must respect and ensure respect for the laws of war.”