David Crane, founding chief prosecutor of the UN Special Court for Sierra Leone and founder of the Global Accountability Network, discusses 'failure to protect by mass destruction' as a potential crime against of humanity by Russia in Ukraine...
A widespread or systematic attack directed against civilians is a crime against humanity—a crime against us all. The jurisprudence around the creation of this international crime began early in the 20th century and evolved through the International Military Tribunals at Nuremberg and Tokyo, and into the modern era during what is called the Age of Accountability. Today it is a cornerstone for holding those who commit international crimes accountable.
The structure of international humanitarian law is based on prohibitions, but more importantly protections. Conflict, as well as cultural and political strife, are human conditions that in large measure exist as a matter of fact. Throughout history the modification or control of the effects of these conditions has evolved into a body of international law that protects those on the battlefield and elsewhere.
There is law and practice that governs conduct on the battlefield in both international and non-international armed conflicts. The various protocols, treaties, and conventions focus on the wounded and sick, prisoners of war, and civilians. Failure to follow these rules can be war crimes.
Early on in the past century, a theory of accountability evolved that did not involve armed conflict, but conduct that focused on attacks on persons, for whatever reason. Initially called crimes against civilization, stemming from Turkish attacks on a Christian minority in Asia Minor in the early 20th century, the idea of governmental policy that causes atrocities upon hapless civilians became crimes against humanity.
First used at Nuremberg, crimes against humanity has become an important tool in atrocity accountability. As the major international tribunals were created to punish international crimes in the former Yugoslavia, Rwanda, and Sierra Leone, followed up by a permanent International Criminal Court, the statutes contained provisions about crimes against humanity.
Within these statutes various examples of crimes against humanity are listed as examples of the type of conduct that is prohibited. In each of these statutes a ‘catch-all’ provision is added at the end related to ‘other inhumane acts.’ This allows prosecutors to charge conduct that facts and circumstances show do not fit into the listed categories of crimes within any particular statute. It is an important additional tool to shape and mold the law to changing circumstances.
An example of how effective this ‘other inhumane act’ provision can be is its use by the Prosecutor of the UN Special Court for Sierra Leone to account for the horrific use of women and girls as ‘bush wives’ by the Revolutionary United Front in Sierra Leone in the 1990’s. Though the Prosecutor had other gender related crimes to charge, which he did, they didn’t account for the gravamen of this particular offense. Hence the creation of a new crime against humanity using the ‘other inhumane acts’ provision in the Court’s statute called ‘forced marriage in times of armed conflict.’ The use of this new crime to charge those who bore the greatest responsibility for the atrocities perpetrated in West Africa was upheld by the Court’s Appellate Chamber. A new crime against humanity was created.
A year after the invasion of Ukraine by the Russian Federation, many international crimes have been committed, from the initial aggression itself of the invasion, to the conduct of the Russian Federation Armed Forces in Ukraine violating all of the protective and prohibitive proscriptions of international humanitarian law. All of these acts amount to war crimes, crimes against humanity, and perhaps genocide and/or incitement to genocide.
The core crime is aggression by the Russian Federation against Ukraine. The gravamen of the crimes by the Russian Federation’s military operations in Ukraine has been the widespread and systematic attack on all civilians, civilian objects, and infrastructure that is used by the civilian population. With the many military failures by the armed forces of the Russian Federation, their tactics have swung from military objects to almost entirely civilian targets, though one could assert that most targets from the very beginning of the invasion were civilian in large measure.
In international humanitarian law, civilians are to be ‘especially’ protected. They cannot be intentionally targeted. Usually, these prohibitions focus on individual acts by units and/or soldiers in combat. Yet, what the armed forces of the Russian Federation, under orders by their Commander in Chief, Vladimir Putin, are doing is a strategic wholesale targeting/destruction of an entire country.
The wanton, indiscriminate launching of air strikes, missiles, and massed artillery in Ukraine might be a genocide or incitement to genocide, yet it is also a widespread and systematic attack on civilians and civilian objects for no apparent militarily necessary reason. This amounts to acts that are far greater crimes than the normal elements of crimes against humanity and the rules related to targeting, a crime that ignores the essential basis of protections on and off the battlefield. It is a new crime being committed by the Russian Federation of ‘failure to protect by mass destruction’, an ‘other inhumane act’ that should be accounted for.
One could certainly counter that this is genocide and/or incitement to genocide, the intentional destruction of a people in whole or in part. Yet genocide is hard to prove as it is a specific intent crime—one must have a ‘smoking gun’ that shows that President Putin directed this wanton destruction to specifically destroy Ukraine and its citizens. Investigations may find such intent, but they may not.
So how do we account for such mass destruction? This ‘other inhumane act’ of ‘failure to protect by mass destruction,’ or words to that effect, can account for this strategic policy of the wholesale destruction of Ukraine. In an indictment of President Putin one might charge genocide, and in the alternative, ‘failure to protect by mass destruction.’
A combatant in an armed conflict whose policy is to destroy, as a strategic policy, the entire territory of another combatant without military necessity is a ‘failure to protect by mass destruction.’ It can be charged in an indictment as a specific charge or as part of a series of charges committed by a defendant. It also can be charged in an aggression indictment as an additional charge. Failure to protect by mass destruction and aggression go hand in hand as core crimes that are taking place in Ukraine.
This new crime against humanity should not be confused with the responsibility to protect. Though it can be used as a jurisprudential argument that ‘failure to protect by mass destruction’ has been a crime since the evolution of the responsibility to protect, the proscription of protecting civilians at all times has probably been around since 1945 as used at Nuremberg, if not earlier. It certainly was an international crime at the time of the invasion of Ukraine by the Russian Federation.
As the international community investigates the atrocity crimes being committed by the Russian Federation, it is important that all of the acts, large and small, be accounted for domestically, regionally, and internationally. ‘Failure to protect by mass destruction’ is one of those crimes against humanity that could hold up in a fair and open trial before the International Criminal Court and a future Special Tribunal for Ukraine on the Crime of Aggression. It certainly is a crime that should be considered. It is hoped that this commentary will start a discussion to consider such a crime against humanity now and into the future.
David Crane is the Founding Chief Prosecutor of the UN Special Court for Sierra Leone, Founder of the Global Accountability Network, and member of a working group that has proposed that a Special Tribunal for Ukraine on the Crime of Aggression be established.
Suggested citation: David Crane, Failure To Protect by Mass Destruction—An ‘Other Inhumane Act’, JURIST – Professional Commentary, March 29, 2023, https://www.jurist.org/commentary/2023/03/David-Crane-Russia-Ukraine-crimes-against-humanity/.
This article was prepared for publication by Rebekah Malkin, Co-Managing Commentary Editor. Please direct any questions or comments to her/them at firstname.lastname@example.org
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