“Neither Criminal Nor Civil”: Russian State Responsibility for Conduct of Hostilities Violations in Ukraine

Conduct of hostilities (CoH) war crimes, such as intentionally directing attacks against civilians and civilian infrastructure, are notoriously difficult to prosecute. Due to the complexity of establishing the requisite mens rea, exacerbated by the requirement to assess available information ex ante, many violations of the CoH rules remain outside of the prosecutable gambit.
Broader accountability for violations of CoH rules, such as those pervasive in Russia’s invasion of Ukraine, can be achieved either through modifying the fundamental tenets of international criminal law or by enforcing state responsibility. This Article focuses on the latter and does so by building on growing scholarship criticizing the ongoing distortion of the content of underlying CoH rules by standards developed in the context of individual criminal responsibility for war crimes. Prompted by the 2022 U.N. General Assembly Resolution calling for the creation of a mechanism to determine internationally wrongful acts of Russia in Ukraine, this Article examines afresh the scope of state responsibility for violations of CoH rules in an international armed conflict. The analysis starts from a seemingly obvious yet often overlooked premise that the scope of state responsibility (which extends to all IHL transgressions) is much broader than the individual criminal responsibility which remains expressly limited only to selected, intentionally committed violations. Reading Additional Protocol I through the lenses of the Vienna Convention on the Laws of the Treaties and the Articles on State Responsibility, this contribution explicates the practical reverberations of the fact that state responsibility, unlike individual criminal liability, does not hinge on intent. It is submitted that the Rendulic Rule remains limited to criminal proceedings against individuals, and in the realm of state responsibility, the legal starting point in the determination of an internationally wrongful act stemming from the CoH violations is the presumption of civilian status. It is further contended that attacks on civilians and infrastructure normally dedicated to civilian purposes, irrespective of the acting individuals’ intent or knowledge, are not in conformity with the principle of distinction, but constitute internationally wrongful acts only if the state cannot substantiate that a reasonable commander, based on the information available to them at the time, would designate the target as a military objective.