War Crimes and Amnesty International

This week Amnesty International published a report criticizing Ukraine for putting soldiers in residential areas. The report begins, 

Ukrainian forces have put civilians in harm’s way by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals, as they repelled the Russian invasion that began in February, Amnesty International said today.

Such tactics violate international humanitarian law and endanger civilians, as they turn civilian objects into military targets. The ensuing Russian strikes in populated areas have killed civilians and destroyed civilian infrastructure.

“We have documented a pattern of Ukrainian forces putting civilians at risk and violating the laws of war when they operate in populated areas,” said Agnès Callamard, Amnesty International’s Secretary General.

“Being in a defensive position does not exempt the Ukrainian military from respecting international humanitarian law.”

Not every Russian attack documented by Amnesty International followed this pattern, however. In certain other locations in which Amnesty International concluded that Russia had committed war crimes, including in some areas of the city of Kharkiv, the organization did not find evidence of Ukrainian forces located in the civilian areas unlawfully targeted by the Russian military.

Despite the last paragraph and the many preceding Amnesty reports that have identified Russia as the perpetrator of war crimes in its invasion of Ukraine, this report produced outrage among supporters of Ukraine. Yaroslav Trofimov of the Wall Street Journal:

The head of @Amnesty Ukraine @OPokalchuk resigns, saying that the organization created an “instrument of Russian propaganda” with a report accusing Ukrainian forces of breaking int’l law that ignored local researchers concerns and gave too little time for Ukrainian MOD response.

This controversy invites reconsideration of the whole notion of “war crimes” and the question of whether the moral standards that we at least attempt to uphold in peacetime can be applied as well in wartime. At one end of this debate one might argue that war is itself a crime, just as murder is a crime. If war is a crime then trying to regulate its conduct by “humanitarian” rules reminds one of the British army in the American colonies, outraged by the colonists’ habit of hiding behind trees instead of fighting out in the open. If the aim in a war is to win by any means, it might seem that no wartime conduct—including rape, torture, and wholesale slaughter of unarmed civilians—can be rationally condemned.

However, if we want to consider war as a crime, let’s compare it with something we all agree is a crime: murder. We don’t condemn people who defend themselves against attempted murder, even if that defence results in the death of the attacker. We don’t condemn a police officer for shooting in self-defence or to protect civilians from a murderous attack. Can we condemn a country like Ukraine, defending itself from an unprovoked invasion, for any tactic it uses in that defence? If we stay with the analogy, the answer must be . . . yes. Someone who successfully disarms and immobilizes an attacker, for example, acts within the law; but if he goes on to torture his attacker, he becomes guilty of a crime. Likewise, a police officer who subdues an attacker and subsequently abuses or murders the suspect is subject to prosecution.

If we carry that logic to Amnesty’s criticism of Ukraine for, in some instances, stationing troops and weapons in residential areas, what judgment do we reach? The key idea would seem to be necessity: an action that is necessary to self-defence is justifiable. If Ukrainians were to torture and summarily execute Russian soldiers they have taken prisoner, for example, these would be acts of gratuitous cruelty, unnecessary for self-defence, and therefore unjustifiable, criminal acts. The question, then, would seem to be whether putting troops and weapons in residential areas is, in some cases at least, necessary to Ukraine’s self-defence. Without access to detailed information we can only speculate. On the face of it, however, we can see that Russia is a much larger country, with a much larger army and many more weapons than Ukraine. In such circumstances, one is inclined to give Ukraine the benefit of any doubt. If such tactics are the only way to preserve the few soldiers and weapons that one has to defend oneself, how can they be condemned? In addition, the Ukrainian army and government clearly have overwhelming popular support: the people in residential areas used in this way either support these tactics, or are freely allowed to protect themselves by leaving for safer refuges. Certainly I have seen no reports of Ukrainian civilians protesting against their army’s tactics—whereas there have been reports of Ukrainian civilians protesting against the Russian invaders. 

The insistence by Amnesty that both sides conform to the same humanitarian standards seems to be an arbitrary adherence to rules, regardless of real-world circumstances. It’s as if someone faced with an attacker intent on murder is criticized for pulling out a switchblade or throwing acid in the attacker’s eyes. Circumstances matter. Soldiers who kill enemy combatants are not considered to be murderers, even though they kill people just as murderers do. This distinction seems obvious to most people. Responding to critics, Amnesty’s Secretary General, Agnes Callamard, writes on Twitter,

@amnesty has documented tirelessly Russia aggression, war crimes in Ukraine: https://amnesty.org/en/latest/news/2022/03/latest-news-on-russias-war-on-ukraine/… Today we report on Ukraine tactics endangering civilians. To those who attack us alleging biases against Ukraine, I say: check our work. We stand by all victims. Impartially.

Callamard’s failure to recognize the difference between behaviour under one set of circumstances and the same behaviour under very different circumstances is confounding. If she were in charge of the Emergency department of a hospital, she would by this standard insist that patients be treated in the order of their arrival, regardless of how urgently they need care. This would be “impartial,” and it would also be grossly wrong.

In addition, as Amnesty’s critics point out, Russian propagandists will seize on this report to justify Russia’s bombing of residential areas, schools, and hospitals.

We must resist our natural tendency toward binary thinking, which would invite us to consider Russia and Russians as villains, Ukraine and Ukrainians as heroes (or vice versa). But without condemning all Russians, we can still conclude on the evidence that the Russian government’s invasion of Ukraine is a crime. And without concluding that all Ukrainians are noble, brave, and honest, we can still judge that Ukraine is the victim of unprovoked aggression by a much larger country. And those judgments cannot be ignored when assessing the wartime behaviour on either side.

Amnesty’s misstep here, whatever its origins, undermines its credibility, if not fatally, then at least profoundly. It would be wiser, perhaps, for AI and similar organizations to restrict their work to peacetime violations of human rights, leaving war crimes to the press and to organizations like the International Criminal Court. I have in the past sponsored Amnesty International activities among high school students, organizing letter-writing campaigns on behalf of political prisoners. At least until there is a clear repudiation of this Amnesty report on Ukraine, I will have to think carefully about any further involvement with them.

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