Acta Universitatis Lodziensis. Folia Iuridica

The Evolution of Modern Warfare Through the Prism of the Russian-Ukrainian Conflict: A Comprehensive Analysis

Oleksandr Sotula — Sat, 30 Mar 2024 00:00:00 +0100

Air Warfare over Ukraine and International Humanitarian Law

Oleksandr Sotula, Mateusz Piątkowski — Sat, 30 Mar 2024 00:00:00 +0100

The Russian aggression against Ukraine involves extensive use of air power, proving that without the sufficient level of air control, the combat operations on the ground face significant operational challenges. The use of air power raises questions regarding the legality of the aerial actions conducted over Ukraine. This conflict in the air domain is characterised by separate campaigns. The first one was a battle over the air superiority of Ukraine, which was relatively short in time (February–April 2022), albeit intense, and lost by the Russian Air Force due to the inability to destroy Ukrainian air defence assets and Ukrainian military aviation. The second one, still in progress at the moment this article is being written, looks to become an unresolved contest of attrition, as both belligerents vastly increased their air disruption capabilities. In particular, during the last period of the first phase, it is believed that many of the Russian air strikes were, in fact, indiscriminate or deliberately directed against civilian objectives. The aim of the article is to analyse the overall conduct of the air war over Ukraine and pinpoint the legal challenges in assessing the legality of such air operations. In the context of available information, the paper will seek to understand the legal framework concerning the destruction of the An-225 at the Hostomel airport during the first phase of hostilities, the use of certain aerial weapons, and the selection of targets.

Targeting in the Russian-Ukrainian War: The Crossroads of Legal and Technical Aspects

Wiesław Goździewicz — Sat, 30 Mar 2024 00:00:00 +0100

Article 82 of Additional Protocol I to the Geneva Conventions requires competent legal advisors to be available, when necessary, to advise military commanders at the appropriate level on the application of International Humanitarian Law (IHL). One of the most important fields of IHL application which requires legal advice is attacks on the enemy, which need to follow the principles of military necessity, humanity, distinction, and proportionality, and are also affected by the requirement to undertake all feasible precautions in order to avoid or at least minimise incidental harm to civilians (collateral damage). One of the ways to ensure that attacks on enemy remain compliant with the requirements of IHL is by adopting appropriate targeting procedures and tools facilitating avoidance or minimising collateral damage, such as the Collateral Damage Estimation Methodology (CDEM). Media coverage of the Russian-Ukrainian war has contributed significantly to the misperception of IHL provisions applicable to targeting. During the war in Ukraine, political declarations were made several times that a war crime had occurred in the form of a deliberate attack on the civilian object. However, the legality of a particular strike can rarely be judged based upon the results of the strike or via post-strike Battle Damage Assessment (BDA). The so-called Rendulic rule emphasises that military necessity, proportionality, and precautions are judged a priori, based upon by the information available at the time of the decision (circumstances ruling at the time) and not on the basis of information emerging after the decision had been made. Legal Advirsors’ role in the targeting process requires them to possess at least the basic knowledge of the Targeting Process and the CDEM, general military expertise in the fields of Tactics, Techniques and Procedures (TTPs), as well as effects of the employment of particular weapon systems in given circumstances. This should be supported by thorough knowledge of IHL, in particular the practical aspects of its application in military operations. It should be about the intersection of legal and technical expertise.

Land Warfare During the Russian-Ukrainian War and International Humanitarian Law

Krzysztof Kaźmierczak — Sat, 30 Mar 2024 00:00:00 +0100

The Russo-Ukrainian War is one of the largest – and probably the most intensive – conflicts of the last several decades. Fought between large, regular, and well-equipped forces of two sides, it naturally provides an extremely wide scope of materials for analysis as to the functioning of ius in bello.

At the current stage, however, the evidence is often piecemeal and unclear, particularly taking into consideration the lack of access to documents and to Russian materials. While there is a significant body of evidence to indicate serious violations of humanitarian law, including indiscriminate or deliberate attacks on civilian targets, a detailed analysis requires taking into consideration a broader scope of circumstances which at this point are unclear. One of areas where we have strong evidence, if based on a sample, is the issue of the treatment of the prisoners of war. In general, the initial information seems to indicate widespread and systematic violations of humanitarian law during the conflict.

Tracking IHL Violations Through Arms Export in the Context of the Russian Aggression Against Ukraine

Dominika Iwan-Sojka — Sat, 30 Mar 2024 00:00:00 +0100

The paper tracks challenges to litigating (direct and indirect) imports of military equipment to Russia and Russia’s subsequent international humanitarian law of armed conflicts (IHL) violations committed in indiscriminate attacks in Ukraine. It asks whether arms export control is capable of preventing or mitigating the results of indiscriminate attacks in Ukraine. It is assumed that IHL compliance can be complemented by preventing military equipment from being delivered to recipients when there is a risk of serious IHL violations being committed with that equipment. By comparing arms transfers from Iran with other controversial arms exports, the paper examines if increased protection for IHL ensued by arms export control laws can remedy deficiencies in arms transfer decisions that do not account for IHL. If an answer is negative, corporate due diligence will perform a complementary role in respecting IHL when state authorisation for arms transfer fails to account for IHL.

The Legal Status of ‘Civilian Hackers’ under International Humanitarian Law

Michał Byczyński — Sat, 30 Mar 2024 00:00:00 +0100

In response to the rising trend of civilian hackers participating in cyber conflicts, the International Committee of the Red Cross has recently issued guidelines regulating their conduct. This article navigates the intricate legal landscape surrounding civilians who actively participate in cyber hostilities, exploring the concept of direct participation in hostilities (DPH) in the context of cyber warfare. Given the unique nature of cyber warfare, the article highlights the need for a nuanced and context-specific approach in determining the legal status of civilians involved in cyber hostilities. It underscores the importance of distinguishing between actions linked to an ongoing armed conflict and those that occur independently. The piece discusses the challenges in defining civilians in cyber warfare, the principles of distinction and proportionality, the criteria for qualifying a civilian as a “direct participant of hostilities” and the concept of continuous combat function (CCF), which distinguishes civilians continuously involved in cyber hostilities from those sporadically or ad hoc engaged. The article also delves into the temporal challenges in cyber operations and the “revolving door” concept, which complicates the application of DPH status in cyber warfare.

Accountability for the Crimes Against Civilians Committed During the Armed Conflict in Ukraine

Anna Głogowska-Balcerzak — Sat, 30 Mar 2024 00:00:00 +0100

The article explores the question of crimes committed against the civilian population during the war in Ukraine and the possible ways of bringing to justice those responsible. A full-scale aggression launched by Russia has caused death and widespread suffering of thousands of Ukrainian civilians and combatants. The article focuses on the events following 24^th February, 2022, bearing in mind that the conflict had started much earlier – with the illegal annexation of Crimea and the beginning of fighting in eastern part of the Ukraine in 2014. After introductory remarks in the first section, the second part of this article will be focusing on different acts constituting war crimes that were committed during the war in Ukraine, and the third part will address existing accountability mechanisms and briefly discuss the advantages and disadvantages of each of them.

The Violation of the Laws of Armed Conflict in the Ukrainian and Polish Dimension: The Criminal Law Discourse

Oleksandr Sotula — Sat, 30 Mar 2024 00:00:00 +0100

The current Criminal Code of Ukraine has shown that it can effectively respond to the challenges associated with the war unleashed by the Russian Federation against Ukraine. Chapter XX of the Special Part of the Criminal Code of Ukraine contains a number of articles that qualify the criminal acts of Russian occupiers. First of all, this is Article 438 “Violation of the laws and customs of war”. In its content, it largely reflects the compliance of Ukrainian national criminal law with the provisions of international law in the field of the regulation of responsibility for committing criminal violations of international humanitarian law (the law of armed conflicts). A comparative legal analysis of Ukrainian and Polish legislation was carried out in terms of criminal liability for the violation of the laws and customs of war. Criminal violations of international humanitarian law are punishable under Articles 122–126 of the Criminal Code of the Republic of Poland. A detailed analysis of the content of these articles of the Criminal Code of the Republic of Poland showed a significant difference between the norms of the Polish criminal law in terms of detailing the acts that the Polish legislator defined as a violation of international humanitarian law. In particular, in addition to the general concept of the civilian population, the Polish criminal law proposes as victims persons laying down their arms or having no means of protection, the surrendered, the wounded, the sick, the shipwrecked, medical personnel, the clergy, unifying the concept of all persons enjoying international protection during armed hostilities. This position of the Polish legislator is more constructive and more closely connected with the relevant international legal acts than the corresponding norm of the Criminal Code of Ukraine. In addition, § 2 of Article 123 of the Criminal Code of the Republic of Poland provides an expanded understanding of ill-treatment of victims, which is not found in Article 438 of the Criminal Code of Ukraine. Also, the Ukrainian legislator ignored those violations of international humanitarian law which are indicated in Article 124 of the Criminal Code of the Republic of Poland – which also works in favour of the Polish criminal law, as it tries to comply with the provisions of international humanitarian law to a greater extent.

War as an Accession Accelerator? Ukraine’s Path Towards the EU

Sylwia Katarzyna Mazur — Sat, 30 Mar 2024 00:00:00 +0100

The European Union’s response to the war in Ukraine is perceived as swift and relatively coherent. The political willingness to support its attacked neighbour has also extended to Ukraine’s membership bid. Despite protracting war and worsening Ukraine’s position, there are no doubts over the state’s commitment to reforms. For now, it can be safely assumed that Ukraine will pursue its path towards membership. Can fighting war and pushing an arduous accession process be balanced by the political will of the EU Member States rooted in a wartime gesture of solidarity?

The EU’s Sanctions Against Russia in the Context of Russian Aggression on Ukraine, and Their Judicial Control

Magdalena Matusiak-Frącczak — Sat, 30 Mar 2024 00:00:00 +0100

In 2014, the Russian aggression against Ukraine began and it escalated even greater in February 2022. The Western states, including the Member States of the European Union, reacted and introduced a wide variety of sanctions, first in 2014, then in 2022, yet until now they have not led to the termination of the Russian–Ukrainian conflict and to the withdrawal of the Russian troops from Ukraine. The aim of this article is to analyse these sanctions and their development as well as the judicial control that was effectuated in relation to these measures by the Court of Justice of the European Union.

Starlink’s Provision of Telecommunication Services During the Time of Armed Conflict and Its Consequences from the Perspective of Public International Law

Bartłomiej Gerałt — Sat, 30 Mar 2024 00:00:00 +0100

This article attempts to provide an overview of the most important international regulations relating to the provision of telecommunication services by private companies to one or more belligerent parties in times of an armed conflict. Taking as an example the recently widely commented issue of Starlink allegedly withholding its services otherwise provided to the Ukrainian Armed Forces, this article reviews the issue from the perspective of general public international law as well as international space law. Specifically, the customs and regulations concerning the attributability of private parties actions as well as peaceful utilisation of outer space are scrutinised.

The Alabama Revisited: Some Observations on the Evolution of Rights and Duties of Neutral States in Armed Conflicts under International Law

Joanna Połatyńska — Sat, 30 Mar 2024 00:00:00 +0100

The paper discusses the concept of neutrality in contemporary international law. The traditional notion of neutrality, stemmed from states’ practice since the 17^th century, means the particular status, defined by international law, of a state that is not party to an armed conflict. The basic premise of this notion is, in short, quite straightforward: on the one hand, the neutral state has the right to remain apart from, and not to be adversely affected by, the conflict. On the other hand, the neutral state is under the obligation of non-participation and impartiality. In the 20^th and 21^st centuries, however, following several treaties and modifications of states’ practice on that matter, the law of neutrality underwent changes and introduced new concepts, e.g. qualified neutrality or non-belligerency. This change, however, has produced only modifications of specific rules of the law of neutrality, not a general abolition of this whole body of law.

Investigating and Prosecuting International Crimes Committed in the Context of the Russian Aggression Against Ukraine: The Polish Involvement

Ilona Topa — Sat, 30 Mar 2024 00:00:00 +0100

The paper aims to present the available options relating to the investigation and prosecution of international crimes allegedly committed in Ukraine by the Russian authorities and members of the Russian armed forces. Firstly, it presents domestic Ukrainian criminal proceedings on these crimes. Then, the ongoing investigation in the International Criminal Court on war crimes and crimes against humanity as well as the initiatives to create a special international court that would deal with the responsibility for the crime of aggression are explored. Finally, considering substantial Polish involvement, it would be interesting to have an insight into how Poland already has and could, in the future, further contribute to bringing to justice the perpetrators of international crimes committed in Ukraine.

International and National Legal Protection of the Civilian Population During an Armed Conflict: The Example of Ukraine

Yevdokiia J. Streltsova, Yevgen L. Streltsov — Sat, 30 Mar 2024 00:00:00 +0100

The protection of civilians is a basic ethical, strategic, and legal requirement for the international community and every democratic state, one of the key aspects of any military (combat) action. Such protection should not only be proclaimed, but also serve as a priority. If armed forces during armed conflicts rely on the foundation laid by international humanitarian law and adhere to civilised rules of military (combat) operations, then the damage caused to the civilian population can be minimised. This problem is also important in terms of the international and national legal protection of the civilian population during the international military conflict in Ukraine.