This post is written by Ary Dib Dias, Alma, George Washington University, USA.
I will not make a proper legal analysis in this short piece; instead, I want to express my concern about the clear disrespect by the Russian forces in its adventure invading Ukraine and argue that Ukrainian civilians should not be punished for their actions during the war. Firstly, I must clarify that when I say Russia, I refer to the Russian government and its military command, since it has become clear that many Russians and at least some of its enlisted military are against this unprovoked invasion. Therefore, it is the Russian leadership that must be held responsible for their actions and for all the war crimes, they are perpetrating.
I believe it is also necessary to stress that even the official reason given by the Russian government for the invasion does not justify this war. Putin stated that the reason was the steps that Ukraine was taking to join NATO. However, the real reason for the invasion is Ukraine’s desire to join the European Union. Putin is afraid of a country like Ukraine joining the economic block since it would lead to Ukraine’s growth and development and it would put in check the Russian kleptocratic model. He can see that Ukraine could easily follow in the footsteps of other former Soviet Republics, such as Estonia, and in some fifteen years enjoy a GDP double that of Russia and drift away from its sphere of influence. This is the real reason for the invasion.
Since this war started, a number of war crimes have been committed, and when this invasion ends, we need to put to trial all the criminals who engaged in this war. Nonetheless, there is a special class that must be exempted from the standard warfare responsibility: the civilian population that bears arms against this invasion. Civilians should not engage in combat, but given how Russia has been targeting civilians and civilian buildings, they may not be able to escape engaging in combat. The manner in which Russia is behaving is criminal; however, Ukrainian civilians should not be punished for war crimes. This begs the question: why?
If the state has the right of self-defense, its citizens also have this right. A person has the right to defend their house against any unlawful invasion. Nobody will dispute that. So, would not neighbors have the right to defend their neighborhood together? They do, which would make them an enemy combatant, but not an unlawful combatant, as defined in the case Ex Parte Quirin, 317 U.S. 1 (1942). Even if one engages in sabotage against invading forces, one should not be considered an unlawful combatant.
The international community shall put Putin and the Russian government on trial for all the crimes they perpetrated during this invasion, even under the Russian laws. According to Russian rules regarding military operations, most of the bombardments against Kyiv and Kharkiv are considered to be criminal. However, the actions of Ukrainian civilians in hope to protect and maintain the sovereignty of their country should not be considered war crimes.
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