The West Can Help Ukraine Keep the Moral High Ground on Human Rights

World Politics Review, 28.02.2023
Charli Carpenter, profesor de ciencias políticas y estudios legales 
(U. de Massachusetts-Amherst)

Russia’s invasion of Ukraine just over a year ago was perhaps the most blatant violation of the United Nations charter for brazenly territorial reasons since Saddam Hussein’s invasion of Kuwait in 1991. Having begun the war illegally, Russia has waged it illegally as well, targeting civilians, torturing and raping prisoners and, according to a new report this week from Yale’s Humanitarian Research Lab, separating Ukrainian children from their families and forcibly removing them from the country.

By contrast, part of what enabled Ukraine to swiftly win the public diplomacy war at the outset of the invasion was its conspicuous adherence to the Geneva Conventions in the face of Russia’s aggressive onslaught. The laws on starting a war place a moral burden of responsibility on the territorial aggressor. But once a war has begun, the Geneva Conventions hold both parties accountable for fighting according to the rules.

Ukraine has for the most part done so, and President Volodymyr Zelenskyy made a point of emphasizing this at the opening of the war. Captured Russian soldiers were treated humanely and encouraged to call home; their mothers were even offered the chance to come to Kyiv to pick them up. Russian forces accused of war crimes are receiving fair trials, rather than summary executions, as envisioned by the Geneva Conventions. These acts are powerful for both distinguishing Ukraine from Russia and aligning Kyiv with the liberal, rules-based Western order.

But as the war dragged on and Russian atrocities piled up, Ukraine has taken other actions that risk chipping away at its hard-won moral high ground. A U.N. report last fall showed that the “vast majority” of war crimes in the war were perpetrated by Russia. But it found that Ukrainian troops committed some as well. Some of these admittedly appear to be nonsystematic abuses committed by individual troops, which the Ukrainian military and government took swift action to investigate.

But other questionable tactics came from the government itself. For example, Ukraine has used cluster munitions in the war and is seeking to acquire more of them, though they are stigmatized by the international community due to their inherently indiscriminate effects.

Moreover, while the focus is often on the laws of war regulating how warring parties should treat enemy combatants and civilians, an extensive body of human rights law also sets limits on how states treat their own populations in time of war. Russia, of course, has performed poorly in this regard, throwing war resisters and journalists who don’t abide by the government’s restrictions on reporting about the war in prison. But Ukraine, too, has clamped down on the media and restricted freedom of movement in ways that run afoul of human rights standards. And Kyiv’s wholesale ban on civilian men fleeing the country along with their families is not only seen by Ukrainians as unnecessary and bad for the war effort, but is being challenged in Ukrainian courts on human rights grounds. Lawyers for Ukrainian citizens have also filed a claim over this policy with the U.N. High Commissioner for Human Rights.

Western human rights organizations and media have done well at documenting Russian abuses. But the activist community may be missing an opportunity to help Zelenskyy defend his country’s territorial integrity while also maintaining the moral high ground when it comes to how he treats his own population. Even governments that sincerely intend to adhere to human rights law in wartime need encouragement and support in order to remain true to their principles. This is especially the case in the face of an extended conflict and atrocities from the other side, which create an environment in which the respect for civil liberties can easily erode, even within democracies.

Western human rights organizations may be missing an opportunity to help Ukraine defend its territorial integrity while maintaining the moral high ground when it comes to how its treats its own population.

Human rights and humanitarian law groups understand this, and they have historically had a strong track record of impartial engagement with all parties in conflict zones, as well as with both democratic and authoritarian governments. Indeed, in peacetime, human rights groups often hold liberal democracies to an even higher standard than autocracies. Yet more and more in this war, it is fair to say that Ukraine’s allies, as well as Western organizations tracking the human rights dimensions of this conflict, have increasingly focused more on Russia’s behavior than on that of Ukraine.

There are, of course, very good reasons for this. One is that the scope and scale of Russian war crimes in Ukraine are, as the U.N. report suggests, far greater than those of Ukraine. Russia is also being widely acknowledged as the aggressor in an illegal war, a fact that for better or worse shapes public opinion on the conflict in ways that make neutral advocacy more difficult. But another reason for the greater attention paid to the crimes Russia is committing is that they are more aligned with the kinds of issues that human rights groups tend to focus on in wars, especially the targeting of enemy civilians in conflict and the mistreatment of enemy detainees. By contrast, the “human rights in armed conflict” divisions in major human rights organizations generally focus much less on how countries treat their own populations in war.

Human rights groups may also fear that Russia will try to exploit any public criticism of Ukraine for actions it has taken in self-defense. Last August, when Amnesty International raised concerns over Ukraine stationing troops close to civilian population centers, the organization was widely criticized for ostensibly validating Russia’s justifications for its attacks on civilians in those areas. Increasingly, human rights advocates have a well-founded fear that Russia will attempt to “weaponize” any criticisms of the Ukrainian government. Indeed, recent research by political scientist Jack Snyder suggests that public shaming campaigns can often provoke this kind of backlash.

But if so, there are ways around this problem. “Naming and shaming” campaigns may be an important part of the human rights business model, but they are not the only tools human rights advocates have at their disposal. Despite social pressure not to criticize Ukraine for fear of alienating audiences in the West or playing into Russian propaganda, nothing is stopping advocates from quietly nudging Kyiv and its allies on issues like cluster munitions, gender equality and the separation of families. The International Committee of the Red Cross, for example, has a long history of quiet “humanitarian diplomacy,” by which it engages in behind-the-scenes dialogue with both parties to a conflict regarding rights-based conduct in war.

As political scientist Elise Rosseau argues, other kinds of organizations and actors have similar backdoor pathways to exercising influence as well. Washington-based human rights groups can also play an important role in clarifying the relevant law and issues with officials at the U.S. Department of Defense. They, in turn, are well-positioned to nudge the Ukrainian military in this regard, without publicly embarrassing Zelenskyy or giving Russia ammunition it can use to whitewash its own egregious behavior.

And even public pressure from the human rights community can actually be effective and useful for Zelenskyy, if done in a measured way that acknowledges Ukraine’s genuine desire to uphold international standards. In the past, Kyiv has shown itself to be responsive to such nudges. For example, after Kyiv released social media footage of captured Russian soldiers in the early weeks of the invasion, the International Committee of the Red Cross issued a tweet and Human Rights Watch released a report pointing out that this could violate the rules protecting the dignity of prisoners, in particular by treating them as a “public curiosity.” Kyiv officials subsequently ceased posting the videos.

Research shows that such pressure is actually most effective when it comes from a country’s friends and allies, as it can support more rights-conscious officials in debates with hardliners when a proposed military policy conflicts with international standards. Ukraine will benefit if it gets through the war while upholding those standards, both for its wartime messaging and for its postwar ambitions to ultimately join the European Union.

Moreover, Russia would like nothing better than to bait Ukraine into violating the rights of its own citizens in this war, and for the West to turn a blind eye to those violations. That supports Russia’s false narrative that Zelenskyy is a dictator and that human rights norms are just weapons that hypocritical Western powers use against the rest of the world. A perceived hypocrisy on human rights is also partly driving the Global South’s ambivalence over taking sides in the conflict.

For all these reasons, it would likely help Ukraine and Zelenskyy over the long term if human rights groups find ways to resist any chilling effect that Russian aggression has had on advocacy within and toward Ukraine, and urge Kyiv to both follow the law and prosecute those who violate it. Ukraine should be praised for what it is getting right in this war. But just as in the case of cluster munitions, where humanitarian disarmament NGOs have spoken against the use or sale of such weapons to Ukraine despite sympathy for its struggle, Kyiv should also be quietly nudged where it may be tempted to stray—or already has strayed—from human rights standards among its own population.

In this way, Ukraine can protect its territory but also the rules-based order. And staying on the moral high ground is perhaps the best way to disprove Russian narratives about Western hypocrisy and avoid playing into Russian hands.

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