The Wages of Sin

There were some questions in the last thread about when and why states obey the Law of Armed Conflict (LOAC) or don’t.  Aaryan Srivastava has a good account of how we can interpret the differences between the US, Iraq, Israel, Russia, and Ukraine over the past thirty years.  Unsurprising answer is that states are sensitive to the material costs of observing LOAC but also the reputational costs of failing to observe LOAC.  States (like Russia) that Just Don’t Give a Fuck have some advantage here.  Russia-Ukraine is unusual in that the weaker party (the party more in danger of suffering existential damage) has been considerably more observant of LOAC than the stronger party:

Russia’s overwhelming military superiority creates a power asymmetry, as it expects no existential reciprocity from Ukraine, which Russia initially dwarfed. Russia’s prediction of the war was shaped by its early geopolitical isolation: the G7 sanctioned it, and any international legitimacy it had was vanquished, leaving it with no consequences should it decide not to comply with LOAC. This permitted Russian forces to engage in consistent breaches of the LOAC, treating defiance as an asset. This is particularly evident in Russia’s targeting of Ukraine’s energy infrastructure, with attacks conducted in the winter of 2024-2025 as an attempt to brutalize the winter and weaken the Ukrainian spirit. The brutality of the Russians also persists in the attacks on shelters, such as the Mariupol Theater bombing, the unlawful deportation of children, and their cultural indoctrination.  This led the International Criminal Court to issue arrest warrants for President Vladimir Putin. This behavior asserts that when a state acts without fear of reciprocity and without dependence on international reputation, the LOAC becomes irrelevant to the actor. Conversely, Ukraine is in a unique position, as it is the militarily weaker state and relies on Western support to address the threat, compelling it to adhere to LOAC to the fullest extent. Ukraine cannot afford to acquire a bad reputation, as its lifeline depends on Western support. This adherence is also interesting to evaluate in the context of the 2006 Israel-Hezbollah War, as Ukraine acts differently than Israel, even though both countries face a similar existential threat. The difference, however, lies in the power asymmetry, which explains Ukraine’s actions. Ukraine has even gone so far as to implement civil evacuation corridors with the ICRC’s facilitation. Furthermore, the Ukrainian government has actively invited international scrutiny, granting the OHCHR and the OSCE access to document potential violations, thereby signaling its reliability to its Western allies. While occasional incidents of misconduct by Ukraine have occurred, it still manages to maintain its international reputation and impose a moral asymmetry on Russia instead. This difference in Russia and Ukraine’s conduct depicts how, in modern asymmetric warfare, the most excellent enforcer of LOAC regarding civilians is not reciprocity, but instead reputation. 

An area where Russia is deriving genuine benefits from its devil may care attitude regarding LOAC is in civil aviation.  Civil aviation has been effectively shut down in Ukraine since the war started, which dramatically reduces mobility and drastically increases the time it takes to move people around the country.  Digital communications solve some but not all of these problems and of course carry their own vulnerabilities.  The reason for this shut down is that Russia can project a credible belief that civilian aircraft run the risk of being shot down… which is credible because Russia has done it before. Russia doesn’t even need to make the threat explicit.

Ukraine, by contrast, must be purer than Caesar’s wife. Ukraine could undoubtedly down Russian civilian jetliners or inflict lethal damage on Russian civilian airports, but it has not. Civil aviation in Russia seems to have actually increased in volume, reflecting the difficulty that Russians now have in travel abroad. Indeed, Ukraine has generally refrained even from doing things that would cause a normal civilian airport to shut down, such as flying drones into the approach and departure paths of civilian aircraft, out of concern that Russia would blame Ukraine for a crash and impose reputational costs. As Ukraine’s reach has grown this has relaxed a bit but the basic reality remains that Ukraine has to play by a different set of rules than Russia. But this is in itself an answer to the question “why do states obey LOAC when it is in their material disadvantage to do so?”; reputational costs are relevant, and even though LOAC is rarely “enforced” in the sense that violators go to prison, the appearance of propriety and compliance still matters to many important actors across the international system. 

Now, of course even this breaks when the pressure is too high. Given how aggressively Russia has planted minefields across Ukraine, and how effective those minefields have been in stymying Ukrainian offensive operations, it would have been nearly suicidal for Ukraine to abide by its obligations under the Landmine Treaty. Nevertheless, Ukraine has made important operational and tactical sacrifices to remain in compliance with LOAC, largely because it wants its friends to know that it is a country that tries hard to comply with LOAC. This is in part a story of “states obey the rules when it is in their interest to obey the rules,” but the important question becomes “how do you make it so that states have an interest in obeying the rules.” Framed thus, there’s an opportunity to talk in real, important ways about how activism and academic work can modify how states behave in international society.

While tracking all of this down I also read a bit about Ukraine’s obligations as a defender, a situation that relaxes some obligations but leaves others in place:  

So, in practical terms, what must Ukraine do? Beginning with the obligation in Article 58(a), Ukraine must segregate the civilian population, to the maximum extent feasible, from the vicinity of military objectives. If the military headquarters in Kyiv is near a residential district, the government should, to the maximum extent possible, relocate those civilians. Military telecommunications equipment should be separated, to the maximum extent feasible, from civilian telecommunications equipment. Ukraine’s current establishment of a curfew during the hours of darkness is an example of segregating civilians who might otherwise be mistaken for fighting forces at night and become targeted. Of course, it may not be feasible to separate any currently collocated material and civilian objects in the face of a current invasion, but certainly these obligations should be considered as the population moves in response to attacks.

Further, the Ukraine government has an obligation under Article 58(b) to avoid, to the maximum extent feasible, placing military units or weapon systems in the vicinity of civilians. For example, as military assets establish positions throughout the city to form an effective defense, military commanders should, to the maximum extent feasible, establish those positions away from civilian populations. Similarly, if a particular road intersection is a key point defense position, the government should redirect civilian traffic through other roads to avoid civilian traffic in that area. Storing weapons and ammunition in buildings containing civilians and establishing firing positions in populated areas such as residential neighborhoods or schools would likely violate this obligation, unless those facilities were evacuated. Densely populated areas, such as Kyiv and Kharkiv, add to the complexity of compliance, but do not remove the obligation.

Recognizing that segregation may not always be possible, or feasible, those civilians that the government can’t segregate, they must protect from the dangers of military operations. This is clearly not an absolute obligation but is again limited by feasibility. However, it encompasses all civilians in the government’s control. Ukraine has already demonstrated attempts to satisfy this obligation by moving civilians into subway tunnels to act as protection from the effects of attacks. Other actions might include maintaining the operation of hospitals, firefighting capabilities, and other protective services. This obligation becomes especially significant in times of sieges or other encirclements, particularly of large populations centers.

FWIW, I find this sort of thing intensely interesting not necessarily out of an interest in LOAC itself (although it is awfully interesting), but rather because my academic focus has more or less become “how do states know how to behave as states, and how does *power* influence that process?”, which is closely associated with the weaponized interdependence literature. Long story short I have over the past two decades become completely disillusioned with how both Liberals and Realists think about how states exert power and influence in the international system, and LOAC is a pretty good example of a nexus of complex interactive interests.