Is anything fair in a war? Does the existence of an armed conflict legitimize the commission of barbaric acts? For centuries, the answer to this is a resounding no. Public international law is the product of the will of the States and practically from its inception it has sought to avoid the repetition of past suffering, that is, it has placed conflict prevention as the axis of its regulation.
Throughout the 18th century, a movement aimed at “humanizing war” through the application of reason gained strength, by regulating the different issues related to each of the moments in which it occurs: a priorilimiting recourse to war (right to war); during its course, regulating the way in which the conflict develops (ius in bello), Y in the aftermathappearing various proposals for the creation of international criminal courts called to judge the commission of serious violations of international law during the course of the confrontation.
In this context, and in relation to the ius in belloin 1863 the United States military code Lieber Code, or Government Instructions for the Armies of the United States on the battlefield, required that hostilities be conducted “in accordance with the rules and customs of war” and established an important concept: “Military necessity, as understood by modern civilized nations, consists of the need for measures that are indispensable to secure the ends of war, and that are lawful, in accordance with modern law and the uses of war”.
In turn, the publication in 1862 of Souvenir of Solferinoa work in which Henry Dunant narrated in a shocking way the horror he casually witnessed, promoted the need to help the slow agony of the soldiers and to organize themselves to avoid unnecessary suffering to the wounded, regardless of the side they are on.
Standards to save lives and alleviate suffering
It was about introducing, as far as possible, dictates of humanity in a context of chaos and brutality. This conviction was on the negotiating table during the Hague Peace Conferences of 1899 and 1907, being precisely a Russian delegate who promoted the inclusion of the well-known Martens clause:
“Until a more complete Code of the Laws of War has been published, the High Contracting Parties deem it opportune to declare that, in cases not included in the regulations adopted by them, the populations and the belligerents remain under the protection and the empire of the principles of the law of nations, such as and result from the uses established between civilized nations, from the laws of humanity and the dictates of the public conscience”.
Thus, international humanitarian law took shape as a branch of public international law that tries to limit the effects of armed conflicts. Its objective: to save lives and alleviate suffering, also allowing it to be possible to live together again when the war is over.
What is a war crime
The norms of international humanitarian law have a double objective: the so-called law of Geneva deals with protecting people who do not participate or who have ceased to participate in combat, together with the law of The Hague, which limits the means and methods of make the war. The four Geneva Conventions of 1949 have been ratified by 196 states, including Russia and Ukraine.
Its regulations establish some basic rules, so that its violation constitutes a war crime:
They prohibit attacking the civilian population.
They establish that the sick and wounded have the right to receive assistance, regardless of which side they belong to.
They specify that detainees must receive food and water. They should also be allowed to communicate with their loved ones.
They forbid killing or wounding an opponent who has laid down his arms or who is hors de combat.
They determine that health workers, their vehicles and hospitals dedicated to humanitarian treatment must not be attacked.
They prohibit torture and degrading treatment of prisoners.
They expressly prohibit rape or other forms of sexual violence in the context of armed conflict.
They provide for some distinctive signs that can be used to identify protected persons, goods and places, such as the Red Cross and Red Crescent emblems, as well as the distinctive signs of cultural property.
They limit military means and methods that do not distinguish between those taking part in the fighting and the civilian population, such as explosive bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.
It is difficult to know exactly what is happening in the conflict between Russia and Ukraine. War propaganda is as old as war and is defined by Daugherty as “the planned use of propaganda and other actions aimed at generating opinions, emotions, attitudes and behaviors in foreign groups, enemies, neutrals and friends, in such a way as to support the fulfillment of national goals and objectives.
The battle for public opinion is not fought on the ground, and both Zelensky and Putin are aware of this. The former appears almost weekly before various international institutions, adapting his speech to the audience and crying out for help, while the latter silences in his country those who may cast doubt on the official discourse on the need for this so-called “intervention” and its limited actions. .
Every day we witness devastating images. kyiv, Mariupol, Lutsk, Kharkiv, Dnipro, Odessa, Poltav, Kherson and Bucha last weekend. The setting is Dantesque, civilian bodies that make us think of their defenselessness when attacked, carrying bags of potatoes, on a bike, with the keys next to their unarmed hands…
a horror catalog
There are many doubts raised since the beginning of the conflict. However, there are direct testimonies from journalists and non-governmental organizations with sufficient credibility to give credence to the Ukrainian version that accuses the Russian troops of indiscriminate attacks, bombing of hospitals, non-compliance with agreements to enable humanitarian corridors that allow the exit of civilians who they do not participate in hostilities, forced deportations of civilians, use of cluster bombs, weapons prohibited by the law of The Hague… A whole catalog of terror. A great violation of the minimum standards established for centuries to avoid unnecessary suffering to the population that has been immersed in this war.
As in any conflict, once it breaks out, it is more realistic to speak of strong and weak than good and bad. Ukraine’s actions are not as visible, except for some images that reveal denigrating treatment of Russian prisoners of war. Time will reveal the actions of both contenders, hopefully within the framework of a fair investigation before the International Criminal Court.
In any case, what we are seeing so far takes us back to 1905. The uses established between civilized nations, the laws of humanity and the dictates of public conscience seemed to be agreed and established guidelines that, today, have lost all their meaning. worth. We witness with astonishment the spectacle of inhumanity, of which they know a lot in Syria and so many other conflicts, but which, ignorantly, in this part of the world we had considered overcome.
Carmen Rocío García Ruiz, Contract Professor with a doctorate in Public International Law. Vice Dean of the Faculty of Legal and Political Sciences, Loyola Andalusia University
This article was originally published on The Conversation. Read the original.
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