Humanitarian treaties, principles designed to be self-enforcing

Humanitarian treaties, principles designed to be self-enforcing

Erica Gaston
Russia’s invasion of Ukraine and its conduct in the course of the war presents a serious threat not only to the Ukrainian state and its population, but to the humanitarian principles and restraints that are the bedrock of the modern international system. There are serious risks that Russia’s war will weaken international institutions and norms in ways that reduce their ability to maintain peace, prevent civilian harm and deal with collective challenges around peace and security going forward. However, this need not be so. It is still possible for the international system to come out of this crisis not only intact, but stronger than it was before the war in Ukraine.
Russia’s invasion of Ukraine will undoubtedly have negative repercussions for the international system of conflict regulation that has held fast since 1945. A permanent member of the United Nations Security Council—one of the five states with a primary responsibility for maintaining and enforcing the principles of the U.N. Charter—has flagrantly violated one of the charter’s core tenets. In doing so, Russia has undercut the bedrock principle that states should refrain from the use of force and acts of aggression and has shaken the credibility of the Security Council as the body charged with overseeing such principles.
Russia’s conduct is also likely to undermine respect for the core principles of international humanitarian law. While there has been substantial attention to pursuing war crimes allegations against Russia or its forces through international tribunals, national courts and other legal mechanisms, this sort of formal adjudication generally only happens in the minority of cases, and may not happen at all in Russia’s case.
For the most part, humanitarian treaties and principles are designed to be self-enforcing, with the responsibility to punish or prosecute violations primarily falling on the warring parties themselves. While it may seem naive to allow states to police themselves, the reality is that the international system lacks a global police force or universal system of adjudication that could take on the task. Given this, international humanitarian law functions by requiring states not only to deter crimes through prosecution, but also to take steps to prevent violations from occurring in the first place. That includes obligations for states to regularly teach their military forces about the legal limits, to train them in appropriate conduct and then to create systems of command, control and discipline to reenforce those lessons. Such training and internal enforcement has worked to reduce abuses far more than, for example, the very remote threat of individuals being brought before the International Criminal Court. However, this means of enforcement depends on the continued buy-in of warring parties. When a state—and not just any state, but a major power that helped craft the laws of war since the 1800s—not only fails to uphold these rules, but brazenly flouts them, it weakens the system as a whole.
In Ukraine, it is not only the scale and number of the alleged violations that are of concern, but also what they suggest about Russia’s failure to inculcate even de minimis standards of conduct among its forces. Some of the alleged war crimes—for example, the repeated and indiscriminate use of bombing and artillery strikes in civilian areas as well as blocked evacuations, siege tactics and forced starvation in places like Mariupol—appear to be the result of a deliberate, top-down choice to deploy a “gloves off” means of violence. But other incidents—such as the summary executions in Bucha and Borodianka, the rape and violence against civilians in other Russian-controlled areas or the widespread pillage and looting of civilian properties—suggest a different factor at work. This sort of lawless brutality comes from a military culture that endorses cruelty, and suggest that Russia has failed to instill even basic humanitarian standards or command-and-control among its military.
While the events of the past few weeks have been horrific, they have also generated a level of international attention and solidarity that can allow for unprecedented action—and in fact, has already done so.
As a result of these transgressions, there is a real risk that the international system will come out of this crisis with a shakier foundation in terms of its core principles of sustaining peace, protecting basic rights and respecting humanity. However, war can be as galvanizing as it is transgressive. While the events of the past few weeks have been horrific, they have also generated a level of international attention and solidarity that can allow for unprecedented action—and in fact, has already done so.
For instance, there have for years been urgent appeals to reform the Security Council, since the unimpeachable vetoes of its permanent members have consistently blocked important peace and security interventions as well as other types of collective action. There has been more activity on this front in the past month than in the past several decades. After the Security Council failed to unanimously condemn Russia’s invasion, the General Assembly took up the cause, exercising the Uniting for Peace resolution for the first time since 1997, with an impressive 141 states in the assembly voting to condemn the invasion.
Russia was then expelled from the Council of Europe and from the U.N. Human Rights Council; the latter had only happened once before, with the expulsion of Libya in 2011. And just this past week, a measure passed that will introduce transparency in Security Council vetoes and inaction.
From here on, whenever a permanent member exercises its veto, that decision will immediately go to the General Assembly for review and debate. The assembly’s conclusions will still be non-binding, but this process will introduce checks and balances and the pressure of a public review on great powers, something that has so far been largely absent from the U.N. system.
The events in Ukraine have also generated greater attention to long-standing appeals for accountability and civilian protection in wartime. In the past few years, concerns have been raised not only about Russia’s conduct in places like Syria or the Sahel, but also the conduct of Western countries, including the United States. Though the recent focus has been on Russia’s indiscriminate use of cluster munitions in Ukraine, the U.S. has faced the same critiques for its use of cluster munitions in some 15 other countries, albeit not since 2009. In addition, though not on par with the undisciplined and brutal conduct of Russian forces in Ukraine, there have been long-standing calls for the U.S. to do more to address the legal loopholes that lead to large-scale civilian harm, to ensure more robust investigations and to prosecute soldiers where violations have occurred.
The scale of atrocities in Ukraine have been a clarion call on issues like this, and may already be spurring action. Countries that have long treated international courts and tribunals as suspect have already shown greater interest in supporting these avenues for justice. There has been greater support for the documentation of war crimes globally, and in the U.S., Congress is considering a new bill that might further address accountability and civilian-harm concerns within U.S. military operations. Although this was in the works before the war in Ukraine, the spotlight on civilian harm in the current moment increases the chance that these measures will go forward and be implemented seriously.
There is still much further to go on both of these fronts, but there is also, potentially, the impetus to do so. Counterbalancing the ill effects of Russia’s transgressions will require not just action against Russia specifically, but proactive steps on the part of all nations to address their own records and to shore up accountability systems as a whole. Imagine if Russia’s violations were to spur all parties to the Geneva Conventions to take civilian protection more seriously? Or, to take another example, imagine if the broad condemnations of Russia’s cluster munitions attacks led more countries to sign on to the international Convention on Cluster Munitions? Or imagine if the new procedure for Security Council vetoes was the beginning of a much larger movement to unlock the UN’s full potential, and identify alternate pathways for collective action on issues that have long been blocked by such vetoes, for example, on climate change?
Russia’s conduct in Ukraine will undoubtedly have some negative repercussions for international peace and security. But as the historian Margaret MacMillan has frequently argued, war can bring about destruction and transformation at the same time. It was the scourge of war that initially drove the creation of the United Nations and the system of norms, treaties and principles that we have today. The war in Ukraine has unleashed terrible destruction and suffering, but it has also galvanized a level of energy, attention and political will that could lead to new pathways for sustaining peace, and potentially to an international system that is more accountable, more equitable and more primed for collective action than the current one.

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