Luigi Crema (Università degli Studi di Milano)

The recent war in Ukraine has received extensive coverage, both in the media and among legal scholars. Aggressions are prohibited, although they are more common than we would hope, and the narrative of annexation is not only prohibited, but is one many of us thought we had left behind in centuries past. Of the many legal issues arising out of the Russian aggression in Ukraine, two phenomena seem to have escaped public notice. The first is the involvement of civilians and of foreign fighters in the Ukrainian resistance – and the approval this has garnered from the international press and even the UK foreign minister. The second regards the role of cities in the conflict. Here I will focus particularly on the second of these, which also entails a reflection on the treatment of civilians.

The barbaric shelling and besieging of innocent people, on the Russian side, and, on the Ukrainian side, the strategic decision to draw battle lines inside cities both heavily strain the principle of distinction between civilians and combatants, one of the cardinal principles at the heart of International Humanitarian Law (IHL hereinafter). According to the principle of distinction, during a war, the belligerent entities should clearly distinguish between military objects and civilian objects, and military and civilian personnel (see Art. 48 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, hereinafter AP-1). With foreign fighters, common citizens taking up arms, and cities all involved in the fray, the principle becomes extremely difficult to apply, opening towards the hypothesis of a levée en masse, recognized as legitimate already by article 2 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land, under Art. Art. 4(A)(6) of the III Geneva Convention, relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Art. 51.3 of the AP-1: «3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities». The levée en masse scenario involves a high level of responsibility to avoid blurring the lines between three potential civilian roles: those who become combatants by answering the call to arms; those who forfeit the protected status as civilians by actively supporting combatants; and those who remain uninvolved in conflict and enjoy the legal protection granted to them as civilians. Civilians turned combatants must distinguish themselves from the civilian population, for example through distinctive clothing, and the civilians who lose protected status by offering support to combatants do not even have this duty. When this scenario plays out in cities, distinguishing between these classes of person is extremely difficult, and entails high levels of responsibility for the attacker, which must take pains to discern legitimate targets, and also the defender, which puts its civilians at risk.

Probably we have become accustomed to scenarios of this kind after many decades of following asymmetrical conflicts involving non-state actors in which terrorist organizations and rebel factions used guerilla tactics, given their lack of international accountability, in attempts to divide societies in the streets of Raqqa, Aleppo, Tripoli, and, unfortunately, a very long list of other places. However, in the Ukrainian case, we are dealing with a conflict between two state entities. And while we all remember the heroic stand at Leningrad, we cannot forget the doom that has fallen on other cities, trapped in decades-long swamps of guerilla warfare.

A frontline that cuts through cities raises questions on three different planes.

The first is ethical, and regards ethical principles which guide both aggressors and defenders. The aggressor in its decision to target a city, to target it in a specific way, or to avoid targeting it, and the defending entity in its decision to involve a city within a battle front, or instead declare it neutral.

The second plane is legal, and regards humanitarian law and, more generally, the regulations that apply to entities involved in a war when dealing with urban spaces, either when attacking a city or when defending it.

The third plane is political, and deals with the convenience or inconvenience of using a city as a battlefield in light of given goals. For the aggressor this could include strategies such as breaking morale or making an example intended to be particularly punitive, while for defenders it could be used to slow an attack, better defend the country, or even provoke international resentment and intervention.

I will focus on the second plane (this is a legal blog, after all), but this analysis cannot be isolated completely from the other two. The third plan, the political one, can be particularly relevant for assessing the legal principles of proportionality or reasonableness of given conduct. And the first plane, the ethical one, is particularly relevant in counterweighting the political convenience or cost of a given choice in defending a city (up to what point can damages occurring in a city can be considered collateral? Is it moral to use civilians and civilian facilities as quasi-human shields for strategic purposes? And so on).

Two of the fundamental principles of humanitarian law are particularly relevant in this scenario, the already mentioned principle of distinction and the principle of precaution. Under the principle of distinction the parties to an armed conflict must «at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives» (AP-1, Art. 48). Under the principle of precaution, «In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects» (AP-1, Art. 57).

These two principles imply that, in an attack, all possible precautions should be taken to target only military objectives, while the defense should avoid the involvement of civilians in military operations. The AP-1 has several provisions pointing in this direction. Art. 51 of the AP-1 very clearly prohibits the indiscriminate attack of the civilian population. This provision is very detailed, and binds Russia, in this case, not to conduct indiscriminate attacks on civilians. It says:

«1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. […]   2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. […].   4. Indiscriminate attacks are prohibited… Indiscriminate attacks are: a) those which are not directed at a specific military objective; b) those which employ a method or means of combat which cannot be directed at a specific military objective; or c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.   5. Among others, the following types of attacks are to be considered as indiscriminate: a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.   6. Attacks against the civilian population or civilians by way of reprisals are prohibited. […] 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57».

Article 51 is supplemented by Article 52, General protection of civilian objects, Article 53, Protection of cultural objects and of places of worship, and Article 54, Protection of objects indispensable to the survival of the civilian population, and these provisions together make cities a particularly sensitive place. In particular, certain techniques adopted by the Russian army in Mariupol and in other cities under attack, such as the complete siege, the cutting off of gas and light utilities, and the shelling of human corridors and civilian facilities, including even hospitals, make AP-1 Art. 54 particularly relevant:

«1. Starvation of civilians as a method of warfare is prohibited. 2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

The rationale behind these provisions also undergirds Art. 8(2)(b)(i), (ii), (iv), and (xxv) of the Rome Statute, which criminalizes such conduct as «war crimes»:

«(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iv) Intentionally launching an attack 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 which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival…»

Art. 51 of the AP-1, sect. 3, however, then goes on to spell out the legal consequences for civilians when they become belligerents in a conflict, since doing so removes them from the sphere of its protection:

«Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities»

Art. 51.7 requires belligerents not to make strategic use of civilians as human shields:

«The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations».

The prohibition of using civilians to protect combatants has been succinctly systematized by the Red Cross in its monumental work on customary international humanitarian law, originally published by Cambridge University Press in 2005, under Rule 97: «The use of human shields is prohibited».

These last provisions are reflected in Art. 8(2)(xxiii) of the Rome Stature, as war crimes («Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations») and are particularly difficult to implement in the context of urban warfare, and the recent fronts in the Middle East illustrates this in many ways. It bears noting that, in the war between Russia and Ukraine, it is very clear who is responsible and in charge of one side of the operations and who of the other. Two states are at war, with combat ongoing between their respective militaries. The respect for and protection of children, sick and wounded people, the elderly, and those needing particular care – of innocent civilians, in short – should be of paramount importance when two armies face each other. This is at the heart of every attempt to regulate armed conflicts. The schools, hospices, and hospitals of the present day are located in cities, not in small towns and villages. To involve cities in a war de facto entails exposing the most vulnerable persons to the violence of combat, something politicians on both sides should seek to minimize wherever possible.

According to IHL, a belligerent party may declare a site to be neutral. Art. 59.1 of the AP-1 regulates so-called Non-defended localities: «It is prohibited for the Parties to the conflict to attack, by any means whatsoever, non-defended localities», and codified a well-established and preexistent practice (cf. Rule 37 of the already mentioned work of the Red Cross on customary international humanitarian law).

This is a theory that has played out in practice, with lifesaving results. Historically important cities involved in wars have been declared open, to prevent the conflicts raging around them from sweeping away people, monuments, buildings, and facilities such as hospitals, homes, schools, libraries, universities, and so on, which are most dear to the cultural identity of a country and the everyday life of civilians, and do not have any military value. Rome, Florence, and Paris are among the world heritage cities that survive today, despite the World War that surrounded them only seventy years ago, thanks to this important designation.

However, this is not the current scenario. The indiscriminate targeting of civilian facilities by the Russian army is a serious violation of humanitarian law. And the decision of the Ukrainian authorities to call every citizen to embrace a weapon and to turn every Ukrainian city into a bastion of the front, while understandable from a tactical point of view and responsive to popular rejection of the conflict, is questionable. On the 24^th of February, the Ukrainian President, Zelensky, stated: «We will give weapons to anyone who wants to defend the country. Be ready to support Ukraine in the squares of our cities». The heroism of this call, often repeated with a similar content, is undeniable and has been widely celebrated, but it reveals how the sad normalizations of the long decades of warfare involving non-state actors have been internalized and learned. And not only in the case of Ukraine. In the post 9/11 world, we have become all too accustomed to asymmetric wars. Too easily newspapers and scholars, and through them, the public, have accepted the notion that there is one world, the regular one, that plays according to the old rules, and a separate, new one, that plays a dirty game on the streets. It is a misleading narrative of regular forces facing down rebels, by inserting themselves into societies that need to be reformed, purged, and saved from extremists. When the Afghan warfare had accustomed us to this narrative, we then accepted the unacceptable: the emergence of pure chaos as a normal consequence of the Arab springs. Factions in Syria; factions, in Libya. The never-ending civil war.

With cynical eyes we have seen how effective, for military purposes, the urban swamp can be, but the human cost is immense – as an example, since 1979 (1979!) Afghanistan has received many portable weapons to fight an invader, but how many years of peace have they achieved in that time? Military strategists explain how difficult it is to make progress and conquer territory in an urban context, so the choice to shelter soldiers in a city is tempting – but the question becomes: is this the paradigm that is best to pursue in a war? Is the President of Ukraine right to assert that Ukrainian cities are battlefields? And not just some of them (ie. the capital), but all of them, instead of instructing some cities to surrender so they remain functioning to support the population?

As a patriotic call to the arms, it is a powerful message. And strategically, as we have said, there are reasons to believe that this choice may be effective in slowing down an armed attack. Lastly, from the less appetizing, but no less real perspective of the inevitable propaganda war, urban combat can also result in the kind of horrific scenes that galvanize public opinion, triggering foreign involvement and thus enlarging the conflict to other countries – something that the President of Ukraine has been explicit about requesting.

The cost of all this is, of course, the risk to innocent civilian populations, both through direct violence and through the destruction of life-sustaining services and infrastructure, such as hospitals. Is there a tipping point at which the call to resist should become geared towards combatants, and spare streets and civilians? At which point we can say that continued involvement of them tilts toward the immorality and illegality of human shields? Using civilians and civilian structures as shields is a war crime, just as targeting civilians and their structures is a war crime. Investigations will clarify in which cases, in the present conflict, these lines have been crossed.

A final legal point can be raised about the involvement of the Ukrainian cities in a front, and it is the accountability of the two states before the European Court of Human Rights.

Indeed, as most recently assumed by the Grand Chamber Judgment between Georgia and Russia (Case of Georgia v. Russia (II), Appl. No. 38263/08, (Merits), 21 January 2021, the 1950 Convention for the Protection of Human Rights and Freedoms (ECHR) fully applies to both states even in time of war, and incorporate the pertinent rules of international humanitarian law.

Russia ratified the 1949 Statute of the Council of Europe (CoE) in 1994 and Ukraine in 1995, without reservations. But Russia is no longer a member of the CoE. First, on February 25^th, the Council of Europe decided to suspend the rights of representation of the Russian Federation in the Committee of Ministers and in the Parliamentary Assembly of the Council of Europe, under Article 8 of the Statute. Then, on March 15 Russia declared the intention to withdraw from the Council of Europe. Finally, on the very same day of March, the Committee of Ministries of the CoE accelerated Russia’s decision by unanimously deciding to terminate Russia’s membership to the CoE: with Resolution CM/Res(2022)2, under Art. 8 of the CoE Statute, meaning that the sunset clause applicable in case of withdrawal under CoE Statute Art. 7 will not apply.  Russia ratified the ECHR in 1998, and Ukraine in 1997. However, Art. 58.3 of the ECHR establishes that a Party which ceases to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions. This would mean that Russia is out of the ECHR, too, and in fact the President of the Court issued a statement deciding «to suspend the examination of all applications against the Russian Federation». This sudden move seemed not well weighted, because it would have deprived of a legal jurisdiction to adjudicate over the atrocities that the Russian army is perpetrating on the Ukrainian territory.

Indeed, with a plot twist, the European Court of Human Rights, gathered in plenary session under Rule 20(1) of the Rules of the Court, on 22 March 2022 passed a Resolution on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights. From the text of the Resolution is not clear on the basis of which Article of the ECHR the Court in its plenary composition decided to challenge this interpretation of the Convention, and declared that «The Russian Federation ceases to be a High Contracting Party to the Convention on 16 September 2022 [that is, 6 months after the expulsion from the CoE]». The Resolution, then, continues saying that the «Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022», and that «The suspension of the examination of all applications against the Russian Federation pursuant to the decision of the President of the Court of 16 March 2022 is lifted with immediate effect». Following this Resolution, the Committee of Ministries on 23 March 2022 passed Resolution CM/Res(2022)3 on legal and financial consequences of the cessation of membership of the Russian Federation in the Council of Europe, and decided that, «In line with the Resolution of 22 March 2022 of the European Court of Human Rights, the Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022».

Ukraine, on the contrary, is still a member of the CoE and a Party to the ECHR. Ukraine attached three separate derogations in April 2021 for the Ukrainian provinces of Donetsk and Luhansk, which were the theater of a conflict by Russia. Therefore, as the European Court of Human Rights has consistently held, is subject to the obligations set by the ECHR for the territories under its control, and its current conduct is subject to the jurisdiction of the ECtHR.

In particular, the Court made clear since the leading case Ergi v. Turkey case of 28 July 1998, that under ECHR Art. 2, the right to life, the State is not only forbidden to kill individuals, but must also to take certain measures in order to secure an effective enjoyment of the right to life, and states shall deemed responsible «where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing, incidental loss of civilian life» (para. 79).

This obligation means that, when the dust of the aggression will have settled, a time will come for Russia to pay a high price for its reckless conduct, and to ask whether the Ukrainian decision to defend every city and to call every citizen to arms was a matter only of ethics and military strategy, or also one of law.