Martial law permits more than is morally imaginable
International law of war has been in force there since Russia attacked Ukraine on February 24. This area of law, also known as international humanitarian law, is part of international law and includes provisions for the protection of non-combatants, such as civilians and wounded members of the armed forces, on the one hand, and the use of means and methods of war on the other.
Martial law allows for a lot more than a civilian can imagine. For example, an attack on military targets in cities that kills civilians does not automatically constitute a violation of international law. On the other hand, arming yourself as a civilian and intervening in the war is forbidden, as Karl Edlinger, retired brigadier and legal adviser in the Austrian Armed Forces, explains in an interview with the APA. “Anyone who does so immediately loses their protection as a civilian and may be attacked and ultimately killed without warning.” This is important in the war in Ukraine because the government there has explicitly called on the civilian population to take up arms and has issued 25,000 firearms and ten million cartridges.
However, international humanitarian law also grants combatant status to militias, voluntary organizations and organized resistance movements if these organizations have a responsible commander, are clearly distinguishable (e.g. by wearing a uniform) from civilians, openly carry weapons and comply with international humanitarian law. This combatant status means that if captured, individuals cannot be prosecuted for mere participation in combat operations.
Civilians can be prosecuted
This means that soldiers (members of the armed forces) fighting enemy soldiers are committing a lawful act of war and go unpunished, but civilians can be prosecuted for taking part directly in combat operations.
Whether the attack on Ukraine in itself violated international law must be considered separately from what happens in the course of the acts of war. In any case, the law of armed conflicts applies equally to the military operations of both parties to the conflict, even if the attack by one of the parties to the conflict was in itself contrary to international law.
You have to differentiate
In international law, a distinction must be made between two areas, explains Edlinger: the right to wage war (ius ad bellum) determines who may wage war. “Today, war is fundamentally forbidden. The only exceptions are in the case of an armed attack in the exercise of the right to self-defense or due to a mandate from the UN Security Council. “Russia argues with genocide in eastern Ukraine and historically justifies the deployment of Russian armed forces with the inadequate Statehood of Ukraine or the statehood of the people’s republics of the Donbass.” Russia is also not talking about an invasion of Ukraine or war, but about a support operation at the request of the “independent Donbass republics”. However, this argument does not like the military action against Ukraine under international law to justify.
But that doesn’t change the fact that international law of war applies in an armed conflict (which is beyond doubt and undisputed by all conflicting parties). It is not unusual for military attacks to be carried out without a basis under international law, says Edlinger, recalling the NATO attack on Belgrade in 1999. “At that time there was neither an armed attack by Yugoslavia on NATO, nor was there a corresponding mandate from the Security Council ( this attack was therefore also a clear violation of international law).”
The international law of war is a compromise between the consideration of military necessity on the one hand and the preservation of humanity on the other. A few basic principles were developed for this: the principle of humanity is paramount. This states that all people are to be treated humanely under all circumstances.
Civilians lose protection when engaging in combat operations
The principle of differentiation states that a distinction must always be made between combatants (members of the armed forces) and civilians: combatants may take part in combat operations themselves, but may also be fought directly. However, if they are wounded or surrender, they are to be protected and spared. If they fall into enemy hands, they become prisoners of war who may not be prosecuted for merely taking part in combat operations (however, they are individually responsible for any war crimes they commit).
Civilians are to be protected and spared as a matter of principle, but lose protection if they take part directly in combat operations. Similarly, a distinction must always be made between military targets (any object that effectively contributes to military combat operations) that may be attacked and civilian objects that must be spared.
However, if civilians and civilian objects are harmed, this is not always a violation of international war law (i.e. a war crime), according to Edlinger. In any case, a violation of the international law of war is intentional killing or injury to a protected person or intentional damage to a protected object. However, international humanitarian law does not require that an attack must be stopped or stopped immediately because protected persons or protected objects in the vicinity of the target could be harmed. This unintended impact on protected persons or objects in the context of military combat operations is referred to as collateral damage. In the event of possible collateral damage, however, the attacker must always weigh up whether the military advantage of the combat operation justifies the potential collateral damage (basic principle of proportionality). In any case, accepting excessive or disproportionate collateral damage is a violation of international war law or a war crime.
Aim for minimal collateral damage
International humanitarian law also requires commanders and military leaders to make all reasonable efforts to minimize collateral damage. From several military options to fulfill the mission, choose the one that causes the least amount of collateral damage.
The use of the different weapon systems, which are regulated by various international treaties, is somewhat complex. In principle, a state is only bound by international treaties that it has ratified. Thus, a state may be prohibited from using a particular weapon system that is legally available to another state. Due to the large number of contracting states, however, one can assume that chemical and biological weapons are generally prohibited.
Ban on cluster munitions partially not ratified
It always depends on which state has ratified which agreements. For example, countries that have cluster bombs and may also want to use them “generally have not signed a ban on these weapon systems,” says Edlinger. So far, six NATO countries and seven member states of the European Union have not ratified the agreement on the ban on cluster munitions. “Russia and Ukraine have also not signed this agreement and the use of these weapon systems would therefore be permissible.” The use of nuclear weapons is not strictly prohibited for a nuclear power, and incendiary weapons, which are devastating in their effect, are permissible provided certain precautionary measures are observed.
Whenever protected persons or protected objects are harmed in an armed conflict, there is at least a suspicion of a violation of international law. From their point of view, it is understandable that the affected party to the conflict is accusing a war crime. Ultimately, however, only a tribunal or independent court can determine whether a war crime was actually committed, explains Edlinger.
Source: Nachrichten
