Ukraine: How Amnesty Got it Wrong

Tymur Korotkyi

Tuesday, 16 August, 2022

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Amid the emotional response to Amnesty International's (AI) statement that Ukrainian military tactics were endangering civilians, it is crucial to consider international law in a measured way.

This is the actual law referred to by the authors of the report as well as by its opponents, and which lies at the centre of the accusations and justifications surrounding Ukraine’s military actions.

First of all, it is impossible to apply these legal considerations outside the context of active conflict. AI’s statement disregards the the Russian Federation's complete contempt for all international laws, including those relating to war.

Without doubt, this fact absolutely does not exclude Ukraine’s obligation to observe the laws of war. But any assessment of the law’s application must take into account these circumstances, balancing the actions of the aggressor and their victim. In AI's statement, aggressor and victim have somehow swapped places.

AI declares that Ukrainian forces are using "schools and hospitals” as military bases, a manipulative and tendentious statement. And taking into account Russia’s systematic attacks on civilian targets, such a statement serves the aggressor and is already being exploited in its information war.

Does AI need to be reminded that it was Russia that opened the gates of hell to tens of thousands of war crimes that violate the imperatives of international humanitarian law? Many of these crimes are awaiting legal evaluation, but it's already clear to the entire civilised world that Russia made atrocity the basis of its policy while waging wars in Chechnya, Georgia, Syria and now Ukraine.

The second point concerns the peculiarities of the modern laws of war. Its main provisions are designed for use in wars between roughly equal states. In the conditions of an asymmetric conflict - especially if the more powerful side ignores the law of war - accusing the victim of violations that pale in comparison to the atrocities committed in Bucha, Irpin and Mariupol is nothing more than manipulation. The publication of such a one-sided statement soon after the killing of Ukrainian prisoners of war in Olenivka was particularly inappropriate.

The third point to make is about access to information. In Ukraine, AI is provided with all necessary opportunities to document violations and communicate with the authorities. This is not the case regarding the Russian regime and in the territories of Ukraine it currently occupies. The AI statement reflects the fact that there is no balance regarding access to information provided by the two sides of the conflict.

And again, context is key.  The extent of the use of civilian objects for military purposes was not clear from the AI press release, and all such generalisations and clickbait give the average reader a false impression of the scale and seriousness of the violations.

We must emphasise that the defending party should strive to limit the placement of combat facilities next to civilian ones, determined by military necessity. But the authors of the statement cannot objectively assess this necessity without communication with the Ukraine’s ministry of defence.

The tactical and military-political obligations of the defending party are passive in nature and must be assessed against necessity and precautionary measures such as evacuation. It is Ukraine that is evacuating the civilian population, and it is Russia that is preventing this evacuation and hitting evacuees as they try to flee, as was the case when a packed railway station was hit in the eastern city of Kramatorsk.

The facts that AI ignores in its statement are Russia’s indiscriminate attacks and use of prohibited weapons. Civilian casualties are inevitable amidst active war, but the blame for this lies with Russia as an aggressor. Accusing Ukraine of ignoring measures to protect its own population is ludicrous.

The main shortcoming of AI's statement was its absolutisation of the law of war, its idealisation, abstraction and detachment from the general context of Russia's full-scale aggression against Ukraine.

As an institution, AI has historically clearly not served the Russian agenda. But in this case, amid the fog of war, AI failed to stand up for the rights of the victim.

Tymur Korotkyi is a vice-president of the Ukrainian Association of International Law.