Foreword

I was genuinely honoured to be given the opportunity to write this short opening note for the special edition of the Revue québécoise de droit international on the ongoing war between Russia and Ukraine – the biggest continental war in Europe since the end of World War II. Various articles included in this volume concentrate mostly on international humanitarian law (IHL), a subject that has occupied a significant part of my academic life, as well as a few closely related subjects. At the same time, my task was not at all easy. What exactly can I say about IHL and its relevance now, amidst the terrible war, which is destroying my motherland and claiming the lives of my compatriots daily, almost as a matter of routine? Should I limit myself to reproducing a set of well-known truths or, perhaps, speak my mind at the risk of appearing insufficiently balanced – or even emotional? In any case, this text can only be very personal. Having taught public international law, and more specifically IHL and related disciplines in Ukraine and elsewhere for some twenty years and having benefited from numerous opportunities to cooperate academically with the International Committee of the Red Cross (ICRC), in particular through summarising my country’s practice for two updates of the ICRC’s study on customary IHL, peer reviewing their new commentary to the Geneva Conventions or serving on the editorial board of the International Review of the Red Cross, do I still believe in the potential of IHL to fulfil its mission? Or even more generally, what is international law worth in the face of the unfolding tragedy that manifests itself in numerous violations of its most important rules? My studies of the law of armed conflict that had generally been viewed by my Ukrainian colleagues as purely theoretical for our peaceful country, have become more than topical since 2014. Just like those colleagues, I too used to take for granted that I would remain far from war, theorising about fragmentation of international law and how autonomous IHL has been as a (self-contained?) legal regime (what an unhelpful discussion, I would say now!), about various models of interaction between IHL and human rights law or (re)conceptualising the relationship between state and individual responsibility for violations of the laws and customs of war. One would have very much preferred that things remained exactly like this. Obviously, the war that came to Ukraine changed this drastically. The trauma inevitably accompanying the war has been growing and deepening in Ukraine’s society, leaving no one unconcerned, for now and for many generations ahead. Personally, the tragic opportunity of being able to apply my knowledge of IHL in practice has proven to be a way to remain sane and relevant amidst the war. My concerns about or even frustrations with the discipline and its practical application have been growing steadily since the beginning of the international armed conflict between the Russian Federation and Ukraine, that is since late February 2014, when the former began its operation to take over control in Ukraine’s Autonomous Republic of Crimea. With every new development, revelations came. The simple logic that annexation of foreign territory amounted to an act of aggression and the territory in question could only be considered as occupied (“[t]here is not an atom of sovereignty in the authority of the occupant”, as Lassa Oppenheim famously put it in 1917), and that belligerent occupation always signifies the existence of an international armed conflict between the states concerned, as per common Article 2 of the 1949 Geneva Conventions, to my huge surprise did not come …