Applicable law
The report refers to the law of armed conflict or international humanitarian law, international human rights law, and international criminal law. Under certain conditions, all these bodies of international law may apply in an international armed conflict, such as in Ukraine. Customary international law is binding on all states, while treaty law is applicable depending on which treaties the states involved in the conflict have ratified. According to customary international law, serious violations of international humanitarian law constitute war crimes.
International humanitarian law aims to limit the effects of armed conflict. It distinguishes between two types of conflict: international armed conflict, which occurs between two state armed forces, and non-international armed conflict, in which at least one of the parties to the conflict is an organised armed group. In the current case, the rules of international armed conflict apply.
One of the core principles of international humanitarian law is the principle of distinction, which states that parties to an armed conflict shall always distinguish between combatants and the civilian population (or protected persons) and objects and shall never make civilians or civilian objects the target of attack, “unless and for such time as they take a direct part in hostilities”. This principle is stipulated by the Fourth Geneva Convention, which focuses on protecting civilians, and further protections are encoded in the Protocol Additional I (relating to the Protection of Victims of International Armed Conflicts) in Part IV. The principle is, however, recognised as customary law and binding on all states.
While Russia remains a party to the First Additional Protocol, on 23 October 2019, it withdrew a declaration by the Soviet Union that recognised the competence of the International Fact-Finding Commission under Article 90(2) of the Protocol. Thus, Russia ended its obligations under the Protocol to let the Commission inquire whether Russia have committed grave breaches or serious violations of the Conventions or the Protocol.
Combatants are considered legitimate military targets who can be lawfully attacked or arrested. Combatants have an obligation to distinguish themselves from the civilian population, who may not be attacked nor directly participate in the hostilities.
International law of occupation is a branch of international humanitarian law that governs a foreign power's control and administration of occupied territory. According to the 1907 Hague Regulations, a territory is considered occupied when placed under the authority of a hostile army. This means that the occupying power has established and can control the area, such as the Russian Federation in the case of Balakliia described in this report. The occupying power does not acquire sovereignty over the occupied territory and is obligated to respect, as far as possible, the existing laws and institutions of that territory. The primary legal instruments governing occupation are the 1907 Hague Regulations, the Fourth Geneva Convention of 1949 and Protocol Additional I to the Geneva Conventions. These documents outline the rights and responsibilities of the occupying power and the protections afforded to the civilian population.
Arbitrary deprivation of liberty is prohibited under customary international humanitarian law. The Geneva Conventions and their Additional Protocols include provisions that protect individuals from arbitrary detention. The Fourth Geneva Convention specifies that a civilian may only be interned or placed in assigned residence if “the security of the Detaining Power makes it absolutely necessary” (Article 42) or, in occupied territory, for “imperative reasons of security” (Article 78). Common Article 3 of the Geneva Conventions requires humane treatment of all people who are not actively participating in hostilities, which includes prohibiting arbitrary detention.
International humanitarian and human rights law includes a comprehensive body of rules for the prohibition and punishment of acts of torture and other forms of ill-treatment. Torture may be a war crime and a crime against humanity, depending on the context. The absolute prohibition of torture protects everyone, irrespective of their status or nationality.
Torture is defined in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It amounts to any act that intentionally inflicts severe physical or mental pain or suffering, carried out for specific purposes such as obtaining information or a confession, punishing, intimidating, or coercing the victim or a third person, or for any reason based on discrimination, and with the involvement of a public official.