David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.
While Russia’s aggression against Ukraine tramples the United Nations charter, Moscow gets a free ride on its other transgressions of international law. Few have focused, for instance, on how Russia’s military operations in Ukraine violate the 1949 Geneva Conventions. The failure to challenge this misconduct is profoundly wrong and damages the integrity of this whole body of law.
The Geneva Conventions are a great civilizational accomplishment, tempering how wars are waged. For years, they have been transgressed by non-state actors who fight out of uniform, target civilians, take hostages and engage in torture. But these critical legal norms are far more threatened when such conduct is embraced (in action if not word) by a sovereign state and a party to the Conventions.
The fact that Russian troops operate in Ukraine in unmarked uniforms, or pretend to be civilians, is a significant Geneva violation. States can and do use commandos who operate with stealth and concealment, as the United States did in both Afghanistan and Iraq. There is a fundamental difference, however, between using special forces in an announced armed conflict and doing so while denying that one’s military is engaged at all, as Russia has done.
Moscow is trying to avoid political and legal responsibility for its actions — and Ukraine is not the only place it is prepared to act. Latvian analyst Janis Berzins has analyzed internal Russian military documents describing Moscow’s “new way of waging war” that includes undeclared wars, undercover destabilization, attacks on civilians to create false humanitarian crisis and psy-op operations. Moscow believes this style of waging war could be particularly effective against neighboring countries with large Russian-speaking populations.
Russia’s denials ring hollow. Moscow has inserted intelligence operatives, Spetsnaz personnel and other elite troops into the region, and some of these individuals have been apprehended by Ukrainian forces. Evidence of Russia’s involvement includes the Russian body armor these forces wear and the specialized and expensive Russian weapons they carry, such as AK-74 automatic rifles and Dragunov sniper rifles.
During the most recent fighting around Slovyansk, Russia’s stronghold in eastern Ukraine, hundreds of Russian personnel and irregulars deployed mortars, heavy machine guns and antitank weapons. The National Security Agency, NATO intelligence services and the Ukrainian government have also intercepted communications indicating that senior officers from Russia’s Southern Military District control Moscow’s operations in eastern Ukraine, as Secretary of State John F. Kerry discussed in meetings last week.
Moscow-led forces have also engaged in an intimidation campaign of assassination and torture against Ukrainian civilians, among the most serious Geneva offenses. Examples include Vladimir Rybak, a local government official in the Donetsk region and a strong supporter of the Ukrainian government, who was kidnapped, tortured and killed. His body was thrown into a river on the outskirts of Slovyansk.
In another palpable violation of the Geneva Conventions, which require military operations to be waged in ways designed to minimize collateral damage to noncombatants, Russian forces have staged assaults on police stations and government buildings in ways designed to maximize civilian casualties. This was done to discredit the Ukrainian government and provide a “humanitarian” justification for further Russian intervention.
Russian forces in eastern Ukraine have seized hostages, including Organization for Security and Co-operation in Europe observers. They have also violated the Geneva Conventions and the customary laws of war by recruiting Ukrainian civilians and police personnel. In two regions of eastern Ukraine, Luhansk and Donetsk, about 50 percent of local police personnel have reportedly switched sides. The Ukrainian Security Service says Russian banks have been transferring funds to make daily payments to pro-Russian Ukrainians. .
While the responsibility for Russia’s actions in Ukraine begins with President Vladimir Putin and other Moscow leaders, the Geneva Conventions require that the Russian military be held accountable for its violations of the laws of war. The first step should be for the United States, NATO and the Ukrainian government to release all of the available information about the Russian offenses, including the names of all individuals involved. The second step should be sanctions that would prevent Russian military officers from traveling to any Western countries regardless of the purpose. No equipment sales or technology transfers to the Russian armed forces should be approved, and no Western military should buy Russian weapon systems or equipment.
Because military establishments, by their nature, value respect and esprit de corps, ostracizing Russia’s armed forces could have a significant impact on Moscow’s behavior, getting its attention in real and immediate ways. They would also underscore the strong Western commitment to upholding the laws of war in general and the Geneva Conventions in particular.