International Law

We passed a small red sign that cautioned passersby of unexploded ordnance, which was just one of the fading reminders of war scattered across the idyllic Bosnian countryside. Back in Sarajevo, a mural criticizing UN Peacekeeping bordered a chic restaurant showcasing a grand piano in the window. Modern stores encroached on the occasional dilapidated, bullet-riddled building that had been left untouched. Most evidently of all, pristine white gravestone markers appeared in many small villages, signaling the final resting place of murdered Bosnian Muslim families. The ghastly scars of genocide were raised in some places more than others.

The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in 1991 catalyzed a series of wars that would span 10 years, and the people of the Balkans would grapple with post-conflict reconstruction in the decades after. Meanwhile, the international community was left to debate how the few atrocity prevention mechanisms in place had failed so grievously. The UN “safe areas”, or areas designated by the United Nations Security Council (UNSC) to be free from “armed attacks or hostile acts”, would become the sites of massacres. The UNSC became so stuck in perpetual deadlock that the only foreseeable way to peace was to break international law in the form of a NATO bombing campaign. Further, some were asking if there was even an obligation at all to protect citizens of foreign governments. 

In time, new understandings of international criminal and humanitarian law were developed in a dogged commitment to justice. Conceptions of sovereignty, obligations to protect civilians, and gendered aspects of humanitarian law (i.e., considering rape as a weapon of war) were re-conceptualized in favor of expanding such protections. An expanded awareness of how to prevent atrocities emerged. 

War has once again returned to Eastern Europe. Disturbing reports of forced transfers of Ukrainian civilians to “filtration camps” to suppress resistance have surfaced. Mass graves have been discovered in Izium. There have been reports if torture, rape, and the execution of civilians by Russian soldiers in Bucha. And civilian sites have been targeted in Kyiv, Dnipro, and Zaporizhzhia in retaliation for advances made on the warfront. A few questions arise from seeing war come back to Eastern Europe: Do any parallels exist between the international crimes committed in Sarajevo and the Donbas? How will the international doctrines that were developed following the genocides of the 90s apply to the challenges of the Ukrainian-Russian war?

It may prove constructive to investigate the difficulties of applying the international community’s current mechanisms and obligations that developed from the painful cessation of the SFRY to today’s frightening conflict with a nuclear state. 

Reflection: Sarajevo in the 90s

The former Socialist Federal Republic of Yugoslavia was a communist state that dissolved into a series of bloody secessionist conflicts. It was composed of many Slavic ethnic groups with diverse cultural and religious backgrounds under the rule of Josip Broz Tito. With the fall of communism in the late 80s and early 90s, the SFRY was plunged into a period of political and economic turmoil. Ethnic tensions were stoked by nationalistic rhetoric. Following Tito’s death in 1991, wars for independence and sovereignty broke out as ethno-nationalism fueled intense violence on all sides.

Bosnia and Herzegovina faced the worst of this violence, specifically against the Bosinaks or Bosnian Muslims. Bosnia’s central location made the territory desirable, and its population was one of the most diverse in the region: 43% Bosnian Muslims, 33% Bosnian Serbs, and 17% Bosnian Croats among other nationalities. In 1992, a referendum on independence resulted in favor of secession. The vote had been boycotted by Bosnian Serbs, who were against severance with the SFRY, and these results catalyzed brutal armed conflict. The Yugoslav People’s Army (JNA) and the Serbian Army overpowered resistance quickly, and these actors conquered 60% of the state’s territory. The Bosnian Serbs declared this area an autonomous zone known as the Republika Srpska and wanted to create an “ethnically pure” state. The capital, Sarajevo, underwent the longest military siege in modern history; over the course of 1,425 days, 11,541 people lost their lives.

Water and supply lines were cut off as Bosnian Serb forces encircled Sarajevo, utilizing the surrounding mountains. Snipers targeted civilians so frequently, one boulevard (Zmaja od Bosne Street and Meša Selimović Boulevard) was designated as “Sniper Alley” in which Serbian forces would shoot down at any man, woman or child from the tall buildings that lined the street. The worst massacre committed on a single day was in the Markale Massacre when Serbien forces killed 68 civilians and injured 140 while they were trying to buy bread. 

Outside the city, an ethnic cleansing campaign brought death to each village. Violence was committed on all sides during the war, and ultimately Croats, Bosinaks, and Serbs were found guilty by international tribunals. In the Republika Srpska, a few hours east of Sarajevo, the Bosian Serb forces had murdered Bosinaks in each town. The worst of this violence culminated in genocide when Serb forces executed 8,000 men and boys in the fields outside of a UN designated safe area and town called Srebrenica. 

The International Criminal Tribunal for the former Yugoslavia (ICTY) sentenced 90 war criminals to prison, and its successor, the International Residual Mechanism for Criminal Tribunals, is finishing the last trials from the war. Further, advocates of international criminal law harnessed this momentum to not only establish a temporary court to prosecute atrocity crimes committed within this conflict’s jurisdiction, but also a permanent court to try the most powerful, the international criminal court (ICC). 

Bosnia and Ukraine

A few months shy of the thirty-year anniversary of the Siege of Sarajevo, Putin declared a “special military operation” in the Donbas region, escalating the conflict that had begun in 2014 with the annexation of Crimea.

The conflicts in Bosnia and Ukraine are incredibly different. Ethno-nationalism was clearly at the center of the former SFRY’s dissolution, an intense internal division that emerged in the aftermath of the fall of communism and chaos as the post Cold War world order fought to settle. Now, world order is transitioning once again. Some researchers will state that Putin’s nihilistic invasion is rooted in his resistance to NATO expansion and desire to return Russia to a more exalted role on the world stage. Yet, lurking the background of these rather neat, realist observations is the systematic use of power to wipe out Ukrainian nationality in favor of Russian political control and cultural identity.

International criminal law (ICL) clearly asserts that an unprovoked invasion of a sovereign state is one of the four most serious crimes, specifically known as the crime of aggression. The other principle international crimes include war crimes, crimes against humanity, and genocide. Each definition has overlapping crimes, but the latter three are generally conceptualized as increasing in severity, each harder to prove than the last. As the war in Ukraine continues, driven by Russia’s desire to dismantle the Ukrainian nation-state, we have seen evidence of terrible international crimes being committed.

In Sarajevo, there were indiscriminate shelling attacks, the targeting of civilians, and forced transfers of women and children that were committed in order to reduce the ability for ethnic groups to repopulate. There were massacres throughout Bosnia, and these ultimately culminated in ethnic cleansing and genocide. 

In the Donbas, there have been reports of indiscriminate shelling attacks, including using banned cluster bombs, and the targeting of civilians. Russian has backed separatists in Donbas for years, contriving a story about the fictitious need to protect an at-risk population of ethnic Russians from Ukrainian nationals. This region is especially vulnerable to further crimes. “Filtration camps” have also appeared, holding able-bodied men against their will in order to “filter” out support for the Ukrainian state. These crimes of attacking Ukrainian civilians have been understood to be laced with the purpose of deteriorating the Ukrainian sense of national identity and will to fight. 

Former and ongoing Russian military involvement in Crimea and Syria remains morally repugnant and illegal under international law. But that involvement at least bared some sort of resemblance to a politically motivated agenda rooted in security risks or establishing state interests in an ongoing war. In contrast, there is a lack of a concrete political answer for Moscow’s invasion and continued attacks in Ukraine. Some have argued that the original plan was for the Russians to depose of the Kyiv government and quash hopes of the state joining NATO, and when this failed Moscow unleashed warfare on other parts of the state. Officially, the Kremlin has said the “operation” is to protect ethnic Russians and “de-nazify” Ukraine, although it is absurd that a process of “de-nazifying” would mean a war against a Jewish president. These disturbing motives, rooted in dismantling the Ukrainian state or even the expansion of Russian empire, makes the war in Ukraine an unequivocal violation of Article 52, the international law that prohibits the use of force. Further, the invasion is a clear violation of an international crime known as the crime of aggression which is prosecuted by the ICC. Evidence of war crimes have been collected, and human rights watchdogs are nervous about the potential escalation of these crimes. 

Ultimately, the genocide in Bosnia was committed to eliminate an ethnic group (the Bosniaks) and create an affiliated Serbian state. The international crimes committed in Sarajevo were about brutality and retribution. Today, there is a desire to destroy Ukrainian national identity through war and terror, and there is evidence of war crimes in cities like Izium and Bucha where crimes such as killing the elderly out of revenge. Another example of retaliation against civilians is when Russia bombed critical energy infrastructure in Kyiv along with parks and universities after the Ukrainians blew up the Kerch bridge to Crimea last month. These elements of retribution against civilians on the grounds of nationality should be a clear warning sign for escalation of atrocities and persecution. 

Moscow claims to not want to govern Ukrainian territory, but after their initial attempt to replace the government in Kyiv failed, they seem to be playing by the rules of realpolitik: believing there is no choice but to escalate.

The Difficulties of Applying Atrocity Prevention Doctrine and Tools 

It is clear that any unilateral or multilateral force meant to halt the Russian invasion of Ukraine would lead to World War III. Such a situation would also most likely involve nuclear warfare, thus ensuring catastrophe. This effectively rules out the use of multilateral humanitarian intervention, but not necessarily other atrocity prevention tools that are consistent within the Responsibility to Protect (R2P) framework.

Out of the Yugoslav Wars, and of the Rwandan genocide, emerged the idea of the Responsibility to Protect. Simply stated, it is the idea that sovereignty can be revoked if governments systematically attack their own populations or others, thus asserting that anyone, regardless of their nationality or lack of nationality, should be afforded protections against international crimes. 

R2P has faced immense criticism from both sides of the political spectrum. Some argue that sovereignty is untouchable and that nothing, not even the failure to protect one’s civilians from international crimes, or the execution of atrocities against others, is grounds to revoke it. Others argue that it provides legal justifications for weaker states to be exploited by war hawks from the global North. For example, a multilateral force would never invade China for committing international crimes but could feasibly invade most of the global South. Essentially, the overlapping arguments against R2P is that degrading state sovereignty is wrong. 

However, the spirit of R2P is that every human deserves protection from international crimes at the hands of their own state, or that of an aggressor, through appropriate and necessary means. Multilateral humanitarian intervention is the most extreme example of the third pillar, and the other pillars of the doctrine are asserting that 1) states should not exterminate their own people and 2) states have the responsibility to assist other states in meeting that responsibility. Assisting states in preventing atrocity prevention can take many forms, including public diplomacy, developmental aid, or prosecutions of perpetrators, and all are consistent with R2P framework as long as these actions are appropriate and necessary means to protect other human beings from atrocities.

The idea that the international community should care about the Ukrainian people, and not because of their state’s economic value to global industry but on the grounds of a shared humanity, is an idea that emerged from the post-conflict reconstruction following the Yugoslav Wars. What this article now seeks to investigate is which atrocity prevention tools could potentially apply within this framework.

First, ensuring physical, legal, and economic protections of refugees is imperative. Millions have already evacuated Ukraine, and many other European states quickly mobilized to take in these individuals and families. However, it is also important to note that at this point in the war, if the safest evacuation route is through Russia, that state should fulfill their international obligations to grant Ukrainians refugee status and adhere to proper protocols where they can choose to leave Russia with no strings attached.

Other important mechanisms include fact-finding missions to collect evidence on the crimes committed. This information can inform policymakers on the international stage throughout the conflict, and when the war ends, it can provide an accurate understanding for prosecutions and historical narrative writing. Grappling with difficult truths will also build resilience against propaganda and revisionist history in future. But for the present, other tools security assistance can be an unconventional form of atrocity prevention. This can include “aid that promotes another state’s defense” can “degrade potential perpetrators’ capacity to commit atrocities”. Arming vulnerable parties in the form of ammunition and medical supplies could further this goal. The U.S. has given a remarkable $18.2 billion dollars to Ukraine since 2021.

Additionally, mediation can be another atrocity prevention tool. This role is usually conducted by neutral third parties, as the US did in negotiating the Dayton Accords. The U.S.’s aid to Ukraine and the Biden’s public statement calling the atrocities across the globe “genocide” will most likely confound its potential to mediate, but that doesn’t mean that the U.S. couldn’t help generate diplomatic strategies. Because ultimately, a diplomatic end to this war will involve a solution that both restores Ukrainian sovereignty as well as finds a way for Russia to “save face” enough for them to leave Ukraine. The U.S. could help sift through various bargaining tools to generate solutions that could walk this fine line. 

Finally, let’s briefly examine another well-known atrocity prevention tool, UN Peacekeeping (UNPK). Specifically, the lessons learned in Bosnia and why these forces cannot protect civilians in Ukraine. UNPK can be a tool to prevent conflict by physically embodying a political symbol of international monitoring. However, they are not equipped to, nor have the mission of, fighting wars. They are not standing armies. This non-military status allows these troops to exist in contentious situations and prevent escalation, but if the opposing armies are going to imminently attack both peacekeepers and civilians, the troops become stuck in a catch-22. Staying would result in being overpowered, yet a withdrawal of the UNPK forces who are guarding civilian sanctuaries can lead to brutal massacres. Historically, this has happened in both Bosnia and Rwanda. The lesson learned from the 90s is that the UNPK cannot keep peace in the face of a standing army that is intent on committing international crimes. 

The issue of using UNPK to monitor civilian zones is clearly off the table and has been since 2014 with the first sign of concrete military action. And considering Putin’s original goal for the war was to push against NATO prominence and expansion, mobilization of collective security forces now would clearly escalate this situation into a world war with many nuclear states. Even the funding and military equipment sent to aid the Ukrainians must be done with political nuance. But that doesn’t mean there aren’t other tools to help protect civilians.

Overall, the doctrine of R2P that emerged following crimes in Bosnia is not obsolete just because there isn’t a US led military coalition entering the war. Atrocity prevention tools can take other forms, and the current strategies are partly informed by the lessons learned from the past. 

The Precipice of a Cold Winter

Every act of military support is confounded by the threat of escalation to war with a nuclear power. Will a cold European winter force more support on behalf of the EU to Kyiv despite this risk? What other tools are available to the international community to put an end to this war? These are questions that the international community – particularly Western nations – will have to answer in the coming months to ensure Ukraine’s survival and the end of Russia’s interminable assault on Ukraine’s identity. Because the evidence collected thus far of potential war crimes, combined with Moscow’s intent on destroying the Ukrainian national identity, only emphasizes the warning signs of terrifying potential atrocities. And it may not be a morally pure solution, but the U.S. should consider possible consolations where the Russians could save face before the crimes against Ukrainians escalate and the war further ravages the country. 

It’s been three decades since Bosnia was devastated by war, and the state has spent those years in the arduous task of reconstruction. Optimistically, there have been massive economic gains. The country has risen to the status of an upper middle income country, and there is the potential for the state to eventually gain EU membership. 

Also in Bosnia, the World Health Organization states that “ten percent of Bosnia’s population, or 400,000 people, have been diagnosed with PTSD”, but “associations who help people suffering from PTSD, however, claim that the true number is close to 1.7 million people, nearly half of the country’s population.” It becomes clear that these advances have been made atop deep, chafing lesions.

Today, new scars are being wrought on Eastern Europe. When the dust settles, this war will also have deeply affected the international political landscape – and the generation who suffers such violence first-hand – for years to come.