Recently, three non-governmental organisations jointly filed a complaint before the Human Rights Committee (HRC), alleging that Russia violated the right to life of 18 Ukrainian victims in its missile strikes in Vinnytsia in 2022. The authors of the complaint have strategically opted for a unique pathway.
According to General Comment 36 of the HRC, any killing in pursuit of an “act of aggression” is “ipso facto” an arbitrary deprivation of life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR). Typically, the arbitrariness of a killing was determined in armed conflict situations by analysing compliance with the rules of international humanitarian law (IHL) as the lex specialis. The foregoing view, however, implies that killings would be arbitrary under Article 6 regardless of their legality under IHL, provided that they were in furtherance of aggression.
This article offers an overview of the ramifications of strategic litigations challenging aggression before the HRC. I begin by contextualising the present complaint and its prospects. Secondly, I consider how the HRC should approach the status and responsibility of Russian combatants partaking in the aggression. Lastly, I reflect on the institutional and political challenges that the HRC will face were it to promise itself as a forum of last resort for victims of aggression generally.
Contextualising the Complaint
The United Nations Security Council (UNSC) has the prerogative to determine “acts of aggression” under Article 39 of the UN Charter, and decide appropriate measures. Russia’s veto prevents this possibility. Similarly, while the International Criminal Court (ICC) was recently given the jurisdiction to prosecute crimes of aggression, its competence does not extend to Russia. Thus, there has been intensive discourse on other ways to prosecute Russian aggression. On the other hand, the ICC has already issued arrest warrants for certain “war crimes” by Russian officials, involving civilian killing patterns similar to those in Vinnytsia. In this context, let us unpack the gap being filled by the present complaint.
For one, the threshold of war crimes requires showing serious violations of IHL rules. Civilians indeed may not be targeted as such, owing to the principle of distinction. However, it may be legitimate to kill civilians as collateral damage incidental to attacks against military objectives. The principle of proportionality is breached when the civilian harm from an attack exceeds the direct and concrete military advantage anticipated at the time of an attack. This balancing exercise is rather open-ended, potentially indeterminate by design. Russia claimed that its strikes in Vinnytsia targeted a high-level military facility. The authors of the complaint have collected evidence concerning the strikes over two years; yet they find this threshold “difficult to prove”. They want to demonstrate that under human rights, “there can be no ‘collateral damage’ in an aggressive war”.
Another limitation of IHL, according to the authors, is that it renders insignificant the killings of Ukrainian combatants. In IHL, they are lawful targets from the perspective of the Russian state, meaning that their killings are not arbitrary deprivations of life under Article 6 if we apply IHL as the lex specialis.
General Comment 36 offers a promising solution. Russia’s invasion is widely believed to have crossed the threshold of an act of aggression as under the law on the use of force (or the jus ad bellum). Uniquely, it has been characterised as such by a majority vote of the UN General Assembly, in the aftermath of the UNSC’s paralysis. Considering that the strikes in Vinnytsia were in furtherance of Russia’s invasion, they can be seen as killings in pursuit of aggression. Therefore, under the HRC’s formula, these are by that very fact arbitrary deprivations of life, irrespective of the legality of their targeting under IHL. The illegality of the Russian decision to resort to war in the first place would render every ensuing killing arbitrary.
Thus, compared to the precarious legal analysis under IHL, the authors of the present complaint have a straightforward burden. So far, this litigation strategy is untested. Given the outpour of international denouncement of Russian aggression, the HRC has an opportune moment to apply its view in General Comment 36. However, this may bring with it legal, institutional, and political challenges to the HRC, some of which I now address.
The Status of Russian Soldiers
The present complaint offers a means to reimagine Ukrainian combatants as victims of human rights violations, rather than lawful military targets. However, what about Russian combatants? There is a risk of signalling through this complaint that the lives of the combatants of an aggressor state are dispensable compared to that of a victim state. It may be tempting to characterise every Russian combatant partaking in the aggression as a perpetrator of human rights violations. In my view, it is wise to resist such temptations.
There is already discourse on how the HRC’s General Comment 36 might interact with the principle of belligerent equality under IHL. This principle renders the combatants of all parties to a conflict legally equal, giving them immunity from prosecutions for killings that complied with IHL rules. While it may be correct that only one party’s combatants fight for a just cause (i.e., defending against aggression), it is important to remember that the choice to resort to force is made by a state’s leaders, rather than particular combatants. In this vein, Dapo Akande and Miles Jackson highlight the fact that the crime of aggression is conceived of as a “leadership crime”. Therefore, to them, it is not particular combatants, but rather the decision-makers responsible for the resort to force that are responsible for arbitrary deprivations of life. In respect of the HRC, then, this means that the Russian state, acting through its leadership, is responsible for right to life violations through aggression.
Normatively, this approach is preferable as it systemically integrates the treatment of aggression in other regimes with the ICCPR. Pragmatically, it is more appropriate to situate state leaders as the architects of aggression rather than assigning blame to particular combatants. If the HRC were to characterise combatants as perpetrators of right to life violations, even when they comply with the rules of IHL, they may lose their incentive to respect the restraints of IHL in particular targeting decisions. The focus on leaders, rather than combatants, will circumvent any concern with belligerent equality, insofar as Russian combatants could not be prosecuted as combatants for IHL-compliant killings.
However, the question of how the present complaint may affect Russian combatants does not end there. Perhaps as an organisational choice, this complaint was filed specifically on behalf of Ukrainian victims. Yet it is important to note that the HRC’s General Comment 36 also leaves open the possibility that the combatants of an aggressor state may allege violations of their right to life by their own state, because of having been forced to partake in an unnecessary war. Therefore, even though the victims of the present complaint are of Ukrainian origin, the HRC’s affirmation of the existence of aggression may open the way for future proceedings by Russia’s nationals on behalf of late Russian combatants. This may further alleviate the concern of inadvertently diminishing the moral desert of Russian combatants through the present proceeding. It will be interesting to see whether the HRC chooses to address this issue at all, and how.
Institutional and Political Challenges
I now turn to reflect on the possible implications of the complaint for future victims of aggression outside the Russia-Ukraine context, and the HRC’s institutional capability to promise them justice. The authors of the present complaint believe that the case will act as a “worldwide precedent” for victims everywhere. In my view, while the HRC is likely to provide (at least declaratory) redress to Ukraine, it is wise to manage expectations and not to imagine the HRC as a reliable avenue for adjudging aggression more generally.
We have seen that the authors of the present complaint believe that it is more accessible to show the existence of Russian aggression, than disproportionate civilian killings under IHL in Russia’s strikes in Vinnytsia. However, determining aggression is usually a highly complex assessment. An outright invasion like Russia’s in Ukraine is an egregious, but not the only example of aggression. Often, the facts are hard to establish, with multiple warring states claiming that their opponent is the aggressor, making their own force an exercise of self-defence. Possibly, a state initially acting in self-defence may transform into an aggressor because of using disproportionate force in response. This gives us a glimpse of the complicated factual findings a reviewer must make in adjudging aggression.
Is the HRC the appropriate forum to debate interstate disputes on aggression? Unlike the UNSC and the ICC, the HRC does not work full-time, as it is composed of volunteer experts. Sometimes, the HRC has even had to defer to the factual accounts provided by respondent states, owing to its infrastructural incapacity to perform rigorous fact-finding. Two former members of the HRC who were involved in the formulation of General Comment 36 suggested that the HRC must “tread carefully” in assessing issues which fall outside its “expertise and which its procedures are not optimally geared to ascertain”. In this regard, it would be premature to consider the HRC a reliable avenue for aggression complaints at large.
More fundamentally, it is not just legal standards in IHL that tend to risk indeterminacy: the jus ad bellum has its fair share of long-standing legal debates on a host of fundamental questions. Can self-defence be used in anticipation of future attacks, or against non-state actors? Are there exceptions to the prohibition on force other than self-defence and authorisation to use force from the UNSC? Or, let us take a step back: what even is aggression? Not every use of force amounts to aggression. It is widely accepted that a threshold of gravity must be satisfied for such categorisation. Is the HRC equipped and willing to answer these decades-long questions when the UNSC and the ICC are paralysed?
Lastly, behind these factual and legal questions lies a highly politicised context. In response to the aggression in Ukraine, states from the West have provided an outpour of support, creating a political climate conducive to the success of litigations such as the complaint before the HRC. This unusually strong denouncement of Russian aggression has received suspicious scrutiny from the Global South: what about Western invasions in Iraq and Afghanistan? What about the fact that Western states contributed to limiting the jurisdiction of the ICC over the crime of aggression? What about the fact that prominent states from the West which now support the present complaint had opposed the HRC’s approach in General Comment 36?
It will be important to see how the HRC insulates itself from being trapped in the critique of such double standards, if at all. The authors of the present complaint believe that Russia’s aggression is the “first war since the adoption of General Comment 36 in 2018 to fit the definition of aggression”. This is incorrect. As Adil Haque shows, Turkey’s invasion of Syria and the United States’ killing of Qasem Soleimani in Iraq are but two examples fitting General Comment 36. The HRC must be prepared to be consistent, cautious, and to navigate carefully the political tensions accompanying aggression contexts, a risk that it assumes by opening the pathway for complaints of this kind.
Conclusion
The complaint against Russia’s strikes in Vinnytsia must be observed with great interest by activists, lawyers, and scholars, as it offers the first opportunity for the HRC to apply its view that aggression automatically triggers right to life violations for any resultant killings. Similarly, how it approaches the status and responsibility of Russian combatants will set an important precedent. It is worthwhile, nonetheless, to manage expectations, as time will tell how the HRC will fare against the factual, legal, and political tensions inherent to disputes about aggression.
Locating Right to Life Violations in Russian Aggression: Challenges Awaiting the HRC
Written by Abhijeet ShrivastavaRecently, three non-governmental organisations jointly filed a complaint before the Human Rights Committee (HRC), alleging that Russia violated the right to life of 18 Ukrainian victims in its missile strikes in Vinnytsia in 2022. The authors of the complaint have strategically opted for a unique pathway.
According to General Comment 36 of the HRC, any killing in pursuit of an “act of aggression” is “ipso facto” an arbitrary deprivation of life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR). Typically, the arbitrariness of a killing was determined in armed conflict situations by analysing compliance with the rules of international humanitarian law (IHL) as the lex specialis. The foregoing view, however, implies that killings would be arbitrary under Article 6 regardless of their legality under IHL, provided that they were in furtherance of aggression.
This article offers an overview of the ramifications of strategic litigations challenging aggression before the HRC. I begin by contextualising the present complaint and its prospects. Secondly, I consider how the HRC should approach the status and responsibility of Russian combatants partaking in the aggression. Lastly, I reflect on the institutional and political challenges that the HRC will face were it to promise itself as a forum of last resort for victims of aggression generally.
Contextualising the Complaint
The United Nations Security Council (UNSC) has the prerogative to determine “acts of aggression” under Article 39 of the UN Charter, and decide appropriate measures. Russia’s veto prevents this possibility. Similarly, while the International Criminal Court (ICC) was recently given the jurisdiction to prosecute crimes of aggression, its competence does not extend to Russia. Thus, there has been intensive discourse on other ways to prosecute Russian aggression. On the other hand, the ICC has already issued arrest warrants for certain “war crimes” by Russian officials, involving civilian killing patterns similar to those in Vinnytsia. In this context, let us unpack the gap being filled by the present complaint.
For one, the threshold of war crimes requires showing serious violations of IHL rules. Civilians indeed may not be targeted as such, owing to the principle of distinction. However, it may be legitimate to kill civilians as collateral damage incidental to attacks against military objectives. The principle of proportionality is breached when the civilian harm from an attack exceeds the direct and concrete military advantage anticipated at the time of an attack. This balancing exercise is rather open-ended, potentially indeterminate by design. Russia claimed that its strikes in Vinnytsia targeted a high-level military facility. The authors of the complaint have collected evidence concerning the strikes over two years; yet they find this threshold “difficult to prove”. They want to demonstrate that under human rights, “there can be no ‘collateral damage’ in an aggressive war”.
Another limitation of IHL, according to the authors, is that it renders insignificant the killings of Ukrainian combatants. In IHL, they are lawful targets from the perspective of the Russian state, meaning that their killings are not arbitrary deprivations of life under Article 6 if we apply IHL as the lex specialis.
General Comment 36 offers a promising solution. Russia’s invasion is widely believed to have crossed the threshold of an act of aggression as under the law on the use of force (or the jus ad bellum). Uniquely, it has been characterised as such by a majority vote of the UN General Assembly, in the aftermath of the UNSC’s paralysis. Considering that the strikes in Vinnytsia were in furtherance of Russia’s invasion, they can be seen as killings in pursuit of aggression. Therefore, under the HRC’s formula, these are by that very fact arbitrary deprivations of life, irrespective of the legality of their targeting under IHL. The illegality of the Russian decision to resort to war in the first place would render every ensuing killing arbitrary.
Thus, compared to the precarious legal analysis under IHL, the authors of the present complaint have a straightforward burden. So far, this litigation strategy is untested. Given the outpour of international denouncement of Russian aggression, the HRC has an opportune moment to apply its view in General Comment 36. However, this may bring with it legal, institutional, and political challenges to the HRC, some of which I now address.
The Status of Russian Soldiers
The present complaint offers a means to reimagine Ukrainian combatants as victims of human rights violations, rather than lawful military targets. However, what about Russian combatants? There is a risk of signalling through this complaint that the lives of the combatants of an aggressor state are dispensable compared to that of a victim state. It may be tempting to characterise every Russian combatant partaking in the aggression as a perpetrator of human rights violations. In my view, it is wise to resist such temptations.
There is already discourse on how the HRC’s General Comment 36 might interact with the principle of belligerent equality under IHL. This principle renders the combatants of all parties to a conflict legally equal, giving them immunity from prosecutions for killings that complied with IHL rules. While it may be correct that only one party’s combatants fight for a just cause (i.e., defending against aggression), it is important to remember that the choice to resort to force is made by a state’s leaders, rather than particular combatants. In this vein, Dapo Akande and Miles Jackson highlight the fact that the crime of aggression is conceived of as a “leadership crime”. Therefore, to them, it is not particular combatants, but rather the decision-makers responsible for the resort to force that are responsible for arbitrary deprivations of life. In respect of the HRC, then, this means that the Russian state, acting through its leadership, is responsible for right to life violations through aggression.
Normatively, this approach is preferable as it systemically integrates the treatment of aggression in other regimes with the ICCPR. Pragmatically, it is more appropriate to situate state leaders as the architects of aggression rather than assigning blame to particular combatants. If the HRC were to characterise combatants as perpetrators of right to life violations, even when they comply with the rules of IHL, they may lose their incentive to respect the restraints of IHL in particular targeting decisions. The focus on leaders, rather than combatants, will circumvent any concern with belligerent equality, insofar as Russian combatants could not be prosecuted as combatants for IHL-compliant killings.
However, the question of how the present complaint may affect Russian combatants does not end there. Perhaps as an organisational choice, this complaint was filed specifically on behalf of Ukrainian victims. Yet it is important to note that the HRC’s General Comment 36 also leaves open the possibility that the combatants of an aggressor state may allege violations of their right to life by their own state, because of having been forced to partake in an unnecessary war. Therefore, even though the victims of the present complaint are of Ukrainian origin, the HRC’s affirmation of the existence of aggression may open the way for future proceedings by Russia’s nationals on behalf of late Russian combatants. This may further alleviate the concern of inadvertently diminishing the moral desert of Russian combatants through the present proceeding. It will be interesting to see whether the HRC chooses to address this issue at all, and how.
Institutional and Political Challenges
I now turn to reflect on the possible implications of the complaint for future victims of aggression outside the Russia-Ukraine context, and the HRC’s institutional capability to promise them justice. The authors of the present complaint believe that the case will act as a “worldwide precedent” for victims everywhere. In my view, while the HRC is likely to provide (at least declaratory) redress to Ukraine, it is wise to manage expectations and not to imagine the HRC as a reliable avenue for adjudging aggression more generally.
We have seen that the authors of the present complaint believe that it is more accessible to show the existence of Russian aggression, than disproportionate civilian killings under IHL in Russia’s strikes in Vinnytsia. However, determining aggression is usually a highly complex assessment. An outright invasion like Russia’s in Ukraine is an egregious, but not the only example of aggression. Often, the facts are hard to establish, with multiple warring states claiming that their opponent is the aggressor, making their own force an exercise of self-defence. Possibly, a state initially acting in self-defence may transform into an aggressor because of using disproportionate force in response. This gives us a glimpse of the complicated factual findings a reviewer must make in adjudging aggression.
Is the HRC the appropriate forum to debate interstate disputes on aggression? Unlike the UNSC and the ICC, the HRC does not work full-time, as it is composed of volunteer experts. Sometimes, the HRC has even had to defer to the factual accounts provided by respondent states, owing to its infrastructural incapacity to perform rigorous fact-finding. Two former members of the HRC who were involved in the formulation of General Comment 36 suggested that the HRC must “tread carefully” in assessing issues which fall outside its “expertise and which its procedures are not optimally geared to ascertain”. In this regard, it would be premature to consider the HRC a reliable avenue for aggression complaints at large.
More fundamentally, it is not just legal standards in IHL that tend to risk indeterminacy: the jus ad bellum has its fair share of long-standing legal debates on a host of fundamental questions. Can self-defence be used in anticipation of future attacks, or against non-state actors? Are there exceptions to the prohibition on force other than self-defence and authorisation to use force from the UNSC? Or, let us take a step back: what even is aggression? Not every use of force amounts to aggression. It is widely accepted that a threshold of gravity must be satisfied for such categorisation. Is the HRC equipped and willing to answer these decades-long questions when the UNSC and the ICC are paralysed?
Lastly, behind these factual and legal questions lies a highly politicised context. In response to the aggression in Ukraine, states from the West have provided an outpour of support, creating a political climate conducive to the success of litigations such as the complaint before the HRC. This unusually strong denouncement of Russian aggression has received suspicious scrutiny from the Global South: what about Western invasions in Iraq and Afghanistan? What about the fact that Western states contributed to limiting the jurisdiction of the ICC over the crime of aggression? What about the fact that prominent states from the West which now support the present complaint had opposed the HRC’s approach in General Comment 36?
It will be important to see how the HRC insulates itself from being trapped in the critique of such double standards, if at all. The authors of the present complaint believe that Russia’s aggression is the “first war since the adoption of General Comment 36 in 2018 to fit the definition of aggression”. This is incorrect. As Adil Haque shows, Turkey’s invasion of Syria and the United States’ killing of Qasem Soleimani in Iraq are but two examples fitting General Comment 36. The HRC must be prepared to be consistent, cautious, and to navigate carefully the political tensions accompanying aggression contexts, a risk that it assumes by opening the pathway for complaints of this kind.
Conclusion
The complaint against Russia’s strikes in Vinnytsia must be observed with great interest by activists, lawyers, and scholars, as it offers the first opportunity for the HRC to apply its view that aggression automatically triggers right to life violations for any resultant killings. Similarly, how it approaches the status and responsibility of Russian combatants will set an important precedent. It is worthwhile, nonetheless, to manage expectations, as time will tell how the HRC will fare against the factual, legal, and political tensions inherent to disputes about aggression.
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