LETTER | The Russian-Ukrainian conflict has turned into an armed conflict despite efforts to resolve it through diplomacy. I wish diplomacy had more time to prevent war, but don’t despair, diplomacy works even in the midst of war, provided there is political will, which unfortunately now seems to be lacking among belligerents.
Who started the war and whether that war is legal or not are questions beyond the scope of this article. The immediate concern is whether the warring parties will respect the law of armed conflict, widely known as international humanitarian law (IHL).
IHL is a special branch of public international law that applies in times of armed conflict. It is a set of rules which aim, for humanitarian reasons, to limit the effects of armed conflict in order to protect persons who are not or no longer taking part in hostilities and to restrict the methods and means of warfare employed.
These rules, which contain the four Geneva Conventions of 1949, customary international law and other relevant international treaties, oblige warring parties to respect the principles of distinction, precaution, proportionality and humanity.
Civilians and civilian objects enjoy target immunity, not to be the object or to be the only objects of a military attack. Civilians are people who are not members of any armed force or group and who do not take a direct part in hostilities.
IHL protects them. It offers special protection to the most vulnerable population, especially women and children. However, civilians who take a direct part in hostilities lose their target immunity and, like military personnel, they can be targeted simply to prevent them from fighting.
In “mass levy” situations where civilians spontaneously take up arms and resist an invasion, these civilians are “combatants” and are entitled to prisoner of war (POW) status if captured, provided that ‘they carry their arms openly, distinguish themselves from the general population and conduct their operations in accordance with the rules of IHL.
Belligerents are required not to carry out their military operation indiscriminately. Launching “an indiscriminate attack targeting the civilian population or civilian objects in the knowledge that such an attack will cause an excessive number of deaths, injuries or damage to civilian objects”, constitutes a serious violation of IHL and should therefore, by taking precautions and following the principle of distinction, be avoided.
IHL makes it possible to target military objects, i.e. “objects which, by their nature, location, destination or use, make an effective contribution to military action and whose destruction, capture or total or partial neutralization, under the circumstances prevailing at the time, provides a military advantage”.
Any armed attack which cannot be justified by military necessity or which cannot contribute to the military defeat of the “enemy”, or which causes excessive loss of civilian life or destroys civilian objects must be avoided.
The wounded and sick must be “respected” and “protected”, because they are out of combat (out of service) or who simply need special medical attention. To respect means to spare, not to attack, not to kill or otherwise mistreat or injure a fallen, unarmed soldier. To protect means “to defend someone, to lend help and support and to give him all the care necessary according to the situation”.
On some contemporary war fronts, wounded soldiers are killed, but the assassins have tried to justify their inhumane behavior by invoking the so-called “battlefield mercy killing”. Kill a defenseless out of combat is illegal, unjust, immoral and constitutes a war crime. There’s no mercy in murdering the helpless out of combat.
When combatants are captured or handed over to an “enemy” power in an international armed conflict, such as the Russian-Ukrainian war, they become prisoners of war who are entitled to humane treatment.
They may be interrogated but are only required to give their full name, rank, date of birth and serial number, or equivalent information, and their home government must be informed of their captivity.
If in doubt as to whether a particular captive is entitled to treatment as a prisoner of war, the captive shall be treated as such until the status of the detained person has been determined by a duly constituted tribunal.
The International Military Tribunal at Nuremberg in 1946 declared that “captivity of war is neither revenge nor punishment, but only preventive detention, the sole purpose of which is to prevent prisoners of war from further participation in war “.
Justice O’Connor of the United States Supreme Court emphasized that a prisoner of war “is not a convict; his imprisonment is a simple measure of war…” and “must be removed as completely as possible from the front, treated humanely and exchanged in time, repatriated or otherwise released”.
In other words, prisoners of war can be released by wartime arrangement, or held until the end of the conflict and released unconditionally.
It is hoped that the warring parties in the Russian-Ukrainian war will respect the rules of IHL. They must not cause excessive civilian casualties, destroy civilian objects, places of worship or cultural monuments, respect and protect the wounded and sick, treat prisoners of war humanely and allow the International Committee of the Red Cross (ICRC) and other relief organizations to carry out their humanitarian work without harm.
It is also hoped that the warring parties will stop fighting and resolve their differences through diplomatic means or any other means they choose until the war is settled by law.
MOHAMMAD NAIQB EISHAN JAN is Ahmad Ibrahim Kulliyyah Professor of Law, International Islamic University Malaysia.
The views expressed here are those of the author/contributor and do not necessarily represent the views of malaysiankini.